2023-329-Minutes for Meeting August 30,2023 Recorded 10/18/2023BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
Recorded in Deschutes County CJ2023-329
Steve Dennison, County Clerk
Commissioners' Journal 10/18/2023 9:40:52 AM
n
FOR RECORDING STAMP ONLY
BOCC MEETING MINUTES
9:00 AM
WEDNESDAY August 30, 2023
Barnes Sawyer Rooms
Live Streamed Video
Present were Commissioners Tony DeBone, Patti Adair and Phil Chang. Also present were
County Administrator Nick Lelack; County Counsel David Doyle; and BOCC Executive Assistant Brenda
Fritsvold.
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:
• Carl Shoemaker noted the presence of saints in today's society.
CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda.
1. Approval of Resolution 2023-048, which reduces General Fund Contingency and
increases appropriations for Medical Examiner services by $87,000 in Fiscal Year
2024 per Document No. 2023-395
2. Approval of Resolution No. 2023-050 recognizing carryover funds and increasing
appropriations within the General Fund - Veterans' Services
i
BOCC MEETING
AUGUST 30, 2023 PAGE 1 OF 7
3. Approval of Chair signature of an amendment to the agreement with
PacificSource for choice model services
4. Consideration of Board Signature on letters reappointing Steve Strang, Summer
Sears, Craig Apregan and Tom Schnell for service on the Deschutes County
Hospital Facility Authority Board
ADAIR: Move approval of the Consent Agenda as presented
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
ACTION ITEMS:
5. Public Hearing to consider proposed amendments to DCC 10.05 relative to
signs placed within County road right-of-way
Cody Smith, County Engineer/Assistant Road Director, explained the reasons for
changing County Code to disallow political signs in the right-of-way of County
roads. Smith said another change sought by the Road Department to this Code
section would clarify procedures for permitting temporary activity signs and
tourist/motorist-oriented directional signage.
The public hearing was opened at 9:11 am.
Chair DeBone noted the receipt of emails on this subject and emphasized that,
if adopted, the proposed changes would not affect the placement of signs on
private property.
There being no one who wished to testify, the public hearing was closed at 9:12 am.
CHANG: Move approval of first reading of Ordinance No. 2023-020 amending
Title 10.05, Right of Way Signs, of the Deschutes County Code
by title only
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
BOCC MEETING
AUGUST 30, 2023 PAGE 2 OF 7
DEBONE: Chair votes yes. Motion Carried
Chair DeBone read the title of the ordinance into the record.
6. Use of Opioid Settlement Funds
Janice Garceau, Health Services Director, reviewed that opioids have resulted in
more than 500,000 deaths in the United States. Following the filing of lawsuits
against manufacturers and dispensers, settlements were reached which will
result in the allocation of $7.1 million to Deschutes County over the next 17
years. Garceau presented information on the number of overdoses currently
taking place in Deschutes County as well as the number of deaths attributable to
overdoses.
Commissioner DeBone suggested that Health Services provide quarterly updates
to the Board on the number of overdoses, deaths due to overdoses, emergency
department visits due to overdoses, and Narcan doses distributed and used.
Commissioner Adair asked if the County can also determine how many people
sign up to receive buprenorphine treatment.
Responding to Commissioner Chang, Garceau spoke to the effect of Measure 110
funding on medication -assisted treatment and other addiction treatment
options.
Deevy Holcomb, Community Justice Director, reviewed strategies currently used
to prevent overdoses, including recovery support that utilizes mentors who have
shared experience. Holcomb introduced a proposal to utilize opioid settlement
funds for a multi -strategy five-year collaborative effort to achieve enhanced
response through targeted prevention activities, intervention and case
management, and surveillance coordination.
Jessica Jacks, Prevention and Health Promotion Program Manager, said the goals
are to prevent misuse of opioids, overdoses, and death from overdoses. Part of
the proposal involves adding a 1.0 FTE Community Health Specialist at an
estimated cost of $751,542 over five years and allocating $446,334 to
programming needs for prevention strategies, supplies and equipment. Jacks
described the activities that would be taken —including ensuring access to
Naloxone and training in when and how to administer it —and reviewed the
proposed outcome measures to be achieved by June 30, 2024.
Jacks next reviewed the proposed intervention strategy, which would cost
$1,847,047 over five years and include adding a 1.0 FTE Behavioral Health
BOCC MEETING
AUGUST 30, 2023 PAGE 3 OF 7
Specialist position to help coordinate intervention activities. The primary goals of
intervention are to divert individuals from the emergency department and/or
criminal justice system, prevent deaths by overdose or suicide, and provide
focused case management to persons exiting the criminal justice system.
Commissioner DeBone found the presented proposal to be well -thought-out.
He agreed that the County must provide community education and support for
those who are experiencing addiction.
Commissioner Chang appreciated the addition of recovery mentors to the
response efforts.
CHANG: Move approval of the recommended use of opioid settlement funds
over the next five years
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
7. Second reading of Ordinance No. 2023-012 revising the County contracting
Code
County Counsel Dave Doyle stated no changes have been made to the ordinance
since first reading was conducted on August 16th
ADAIR: Move approval of second reading of Ordinance No. 2023-012
by title only
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
Chair DeBone read the title of the ordinance into the record.
CHANG: Move adoption of Ordinance No. 2023-012 amending Title 2.36 and
Title 2.37, Contracting, of the Deschutes County Code
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
BOCC MEETING AUGUST 30, 2023 PAGE 4 OF 7
8. First Reading of Ordinance No. 2023-015 - LBNW, LLC, Plan Amendment and
Zone Change
Anthony Raguine, Principal Planner, said Exhibit G to the ordinance, which
constitutes the Board's Findings of Fact and Conclusions of Law (i.e., decision) on
this matter, has been revised since it was initially published last week. Raguine
presented an edited version of Exhibit G showing removed text in red with
strikethrough formatting and added text in red with underline formatting.
Raguine said aside from two date changes shown on page 2 of the exhibit, the
revisions were made to pages 18 and 19 as shown.
Commissioner Adair added that the first sentence of the second paragraph on
page 15 contains a beginning parenthesis that is not needed and should be
removed.
Commissioner Chang said he does not believe the decision gives adequate
consideration to scenic resources.
ADAIR: Move to accept the revised Findings of Fact and Conclusions of Law
as amended and discussed
DEBONE: Second
VOTE: ADAIR: Yes
CHANG: No
DEBONE: Chair votes yes. Motion Carried 2 - 1
ADAIR: Move approval of first reading of Ordinance No. 2023-015
by title only
DEBONE: Second
VOTE: ADAIR: Yes
CHANG: No
DEBONE: Chair votes yes. Motion Carried 2 - 1
Chair DeBone read the title of the ordinance into the record.
9. Second Reading of Ordinance No. 2023-018 - Griffin Plan Amendment / Zone
Change
Rachel Vickers, Associate Planner, said first reading of the ordinance was
conducted on August 16t"
BOCC MEETING AUGUST 30, 2023 PAGE 5 OF 7
ADAIR: Move approval of second reading of Ordinance No. 2023-018 by title
only
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
Chair DeBone read the title of the ordinance into the record.
CHANG: Move adoption of Ordinance No. 2023-018 amending Deschutes
County Code Title 23, the Deschutes County Comprehensive Plan,
to change the Comprehensive Plan Map Designation for certain
property from Agriculture to Rural Residential Exception Area, and
amending Deschutes County Code Title 18, the Deschutes County
Zoning Map, to change the Zone Designation for certain property
from Exclusive Farm Use to Multiple Use Agricultural
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
10. Historic Landmarks Commission Update
Tanya Saltzman, Senior Planner, said due to low community interest, staff has
experienced difficulty in recruiting and retaining members on the County's Historic
Landmarks Commission (HLC). Saltzman shared that the purpose of the HLC is to
serve as an advisory body for issues concerning historic and cultural resources for
unincorporated Deschutes County and the City of Sisters. Although the HLC reviews
development applications for alterations to designated historic sites and structures,
it has been years since a nomination has come before it for review.
Saltzman presented staff's recommendation that the HLC be disbanded and its
authority be transitioned to the Planning Division or the Planning Commission.
In response to Commissioner Chang, Saltzman said staff does not anticipate any
critical projects coming forward on the HLC's the agenda in the next year.
Gutowsky added that a future Board could decide to re -activate the HLC, dependent
on community input and desire. Saltzman said if the Board approves proceeding
with the recommendation to transfer the HLC's authority at this time, a public
hearing will be held.
BOCC MEETING
AUGUST 30, 2023 PAGE 6 OF 7
Chair DeBone noted the consensus of the Board to proceed with disbanding the
HLC as recommended by staff.
11. County Policy update for HR-12 Family and Medical Leave to incorporate the
Paid Leave Oregon program
Kathleen Hinman, Human Resources Director, explained that the County is required
to participate in the State's Paid Leave Oregon program which was implemented this
year. Hinman summarized the proposed changes to County Policy HR-12 which sets
out the policy and procedures for family and medical leave to incorporate language
specific to the administration of Paid Leave Oregon.
CHANG: Move approval of County Administrator signature of revised Human
Resources Policy HR-12, Family and Medical Leave
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried
OTHER ITEMS: None
EXECUTIVE SESSION: None
ADJOURN:
Being no further items to come before the Board, the meeting was adjourned at 11:08 am.
DATED this 1 1II\day of 0 2023 for the Deschutes County Board of
Commissioners.
ATTEST:
RECORDING SECRETARY
ANTHONY DEBONE, CHAIR
PATTI ADAIR, VICE CHAIR
PHIL CHANG, COMMISSIONER
BOCC MEETING
AUGUST 30, 2023 PAGE 7 OF 7
BOARD OF
COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS MEETING
9:00 AM, WEDNESDAY, AUGUST 30, 2023
Barnes Sawyer Rooms - Deschutes Services Building - 1300 NW Wall Street - 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 via Zoom from a computer, use this link: http://bit.ly/3h3oqdD.
• To join by phone, call 253-215-8782 and enter webinar ID # 899 4635 9970 followed by the
passcode 013510.
• If joining by a browser, use the raise hand icon to indicate you would like to provide public
comment, if and when allowed. If using a phone, press *6 to indicate you would like to speak and
*9 to unmute yourself when you are called on.
Deschutes County encourages persons with disabilities to participate in all
programs and activities. This event/location is accessible to people with disabilities.
If you need accommodations to make participation possible, call (541) 388-6572 or
email brenda.fritsvold@deschutes.org.
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.
CONSENT AGENDA
1. Approval of Resolution 2023-048, which reduces General Fund Contingency and
increases appropriations for Medical Examiner services by $87,000 in Fiscal Year 2024
per Document No. 2023-395
2. Approval of Resolution No. 2023-050 recognizing carryover funds and increasing
appropriations within the General Fund - Veterans' Services
3. Approval of Chair signature of an amendment to the agreement with PacificSource for
choice model services
4. Consideration of Board Signature on letters reappointing Steve Strang, Summer Sears,
Craig Apregan and Tom Schnell for service on the Deschutes County Hospital Facility
Authority Board.
ACTION ITEMS
5. 9:10 AM Public Hearing to consider proposed amendments to DCC 10.05 relative to
signs placed within County road right-of-way
6. 9:40 AM Use of Opioid Settlement Funds
7. 10:10 AM Second reading of Ordinance No. 2023-012 revising the County contracting
Code
8. 10:15 AM First Reading of Ordinance No. 2023-015 - LBNW, LLC, Plan Amendment and
Zone Change
August 30, 2023
BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 3
9. 10:25 AM Second Reading of Ordinance No. 2023-018 - Griffin Plan Amendment / Zone
Change
10. 10:30 AM Historic Landmarks Commission Update
11. 11:00 AM County Policy update for HR-12 Family and Medical Leave to incorporate the
Paid Leave Oregon program
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
EXECUTIVE SESSION
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories.
Executive sessions are closed to the public; however, with few exceptions and under specific guidelines,
are open to the media.
ADJOURN
August 30, 2023 BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 3
Subject:
Name
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
v
6 J 5416 -e IA4/JIL4'Y
Address N f St k
.9.Pincl DR9770
Phone #s 9-6 g r- 14('g 1;,
E-mail address 4_6 efryta ;4 O 1, c 6
VIIn Favor
Neutral/Undecided
Date:
Submitting written documents as part of testimony? Yes
If so, please give a copy to the Recording Secretary for the record.
Opposed
No
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: August 30, 2023
SUBJECT: Approval of an amendment to the agreement with PacificSource for choice
model services
RECOMMENDED MOTION:
Move approval of Chair signature of Document No. 2023-802, an amendment to the
PacificSource Choice Model Services Agreement.
BACKGROUND AND POLICY IMPLICATIONS:
This is the second six-month amendment to the PacificSource Community Solutions (PSCS)
Choice Model Services Agreement. This amendment extends the term of the original
agreement to December 31, 2023 and provides funding up to $203,944.91 for the period July
1, 2023 through December 31, 2023, with a potential performance payment of $11,181.17.
PacificSource Community Solutions (PSCS) contracted with Deschutes County Health
Services (DCHS) to provide oversight and care coordination for adults with serious and
persistent mental illness (SPMI). PSCS provided funding up to $407,889.02, for the period
January 1, 2022 through December 31, 2022, with two potential performance payments of
$11,181.17, available if all regional PSCS Choice Model contractors met the performance
measures. The first amendment extended the original contract term to June 30, 2023 and
provided funding up to $203,944.91, with a potential performance payment of $11,181.17,
for the period January 1, 2023 to June 30, 2023. This second amendment extends the term
an additional six months and provides an additional six months of funding.
PacificSource Community Solutions (PSCS) delivers healthcare solutions to businesses and
individuals throughout the Northwest and is an independent, wholly -owned subsidiary of
PacificSource Health Plans a non-profit community health plan. PSCS has been providing
Medicaid plans to Oregonians since 1995 and currently offers Oregon Health Plans (OHP)
coverage to individuals who need help through the PacificSource Coordinated Care
Organization (CCO).
Deschutes County Health Services provides Choice Model Services which are designed to
promote more effective utilization of current capacity in facility based treatment settings
and community based settings, increase care coordination and increase accountability at a
local and state level. Services are designed to promote the availability and quality of
individualized community -based services and supports so that adults with mental illness
are served in the least restrictive environment possible and use of long-term institutional
care is minimized.
Monthly invoices and Choice Model Client Status Reports are required.
BUDGET IMPACTS:
Annual payment, from PSCS, for Choice Model Services is capped at $203,944.91 for the
amendment period July 1, 2023 through December 31, 2023. Additionally, a performance
payments in the amount of $11,181.17 may be available, if all regional PSCS Choice Model
contractors meet performance measures, for the period.
ATTENDANCE:
Kara Cronin, Behavioral Health Program Manager
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: August 30, 2023
SUBJECT: Public Hearing to consider proposed amendments to DCC 10.05 relative to signs
placed within County road right-of-way
RECOMMENDED ACTIONS:
• Open public hearing; receive testimony
• Close public hearing and deliberate
• Move first reading (by title only) of Ordinance No. 2023-020
BACKGROUND AND POLICY IMPLICATIONS:
Staff at the Road Department have been forced to manage/police the placement of signs
within county road right-of-way. This becomes an especially time-consuming activity around
election events. The proposed amendments will bring Deschutes County into alignment with
ORS 368.942 which prohibits the placement of signs within public right-of-way.
BUDGET IMPACTS:
Anticipate savings of staff time and vehicle use.
ATTENDANCE:
Road
Legal
0ZES
ROADDEPARTMENT
MEMORANDUM
To: Board of County Commissioners
From: Cody Smith, PE, County Engineer/Assistant Road Department Director
Date: August 24, 2023
Subject: Proposed Amendments to DCC 10.05 — Right of Way Signs
Oregon Revised Statutes (ORS) provide the following regarding the placement of signs other than traffic
control devices within county road rights of way:
ORS 368.942 Posting notices, signs or pictures on structures within county road right of way
prohibited. Except as provided in ORS 368.950, no person may paste, paint, brand or in any
manner whatever place or attach to any building, fence, gate, bridge, tree, rock, board, structure
or anything whatever within the limits of the right of way of any county road any written, printed
or painted advertisement, bill, notice, sign, picture, card or poster, except within the limits of any
incorporated city through which the county road runs.
ORS 368.945 Authority of county road official to remove unlawfully posted matter. A county
road official may lawfully remove or destroy, without resort to legal proceedings, any
advertisement, bill, notice, sign, picture, card or poster placed in violation of ORS 368,942.
ORS 368.950 Applicability of ORS 368.942 and 368.945. ORS 368.942 and 368.945 do not apply
to:
(1) The posting or maintaining of any notice required by law to be posted or maintained; or
(2) The placing and maintaining, within the limits of the right of way of any county road, of:
(a) Signs approved by the county governing body and giving information about scenic,
historical, resort or recreational areas;
(b) Signs approved by the county governing body and giving information about community or
civic enterprises of a noncommercial nature, or the proximity of tourist facilities, directions or
distances for the information of the traveling public;
(c) Facility location signs of a public utility or telecommunications utility, when such signs are
approved by the county governing body;
(d) Benches utilized as outdoor advertising signs, if approved by the county governing body;
or
61 150 SE 27th Street Bend, Oregon 97702
(541) 388-6581 road@deschutes.org www.deschutes.org
(e) Outdoor advertising signs on bus shelters erected or maintained for use by and
convenience of customers of a mass transit district, a transportation district or any other public
transportation agency, when such signs are approved by the county governing body.
368.955 Posting notices, signs or pictures within view of county road on property of another
without consent prohibited. No person may paste, paint, brand or in any manner whatever
place or attach to any building, fence, gate, bridge, tree, rock, board, structure or anything
whatever on the property of another within view of a county road, without the written consent
of the owner or person entitled to possession of such property, any written, printed or painted
advertisement, bill, notice, sign, picture, card or poster.
Deschutes County Code (DCC) 10.05 provides requirements and procedure for the permitting and
placement of temporary activity signs and tourist and motorist -oriented directional signs within public
road rights of way under Deschutes County's jurisdiction. Inexplicably, DCC 10.05.040 allows for the
permitting of political signs as temporary activity signs within a public road right of way.
Road Department staff find that the permissibility of political signs within public road rights of way
under Deschutes County Code and the burden for the Department to administer this program are
extremely problematic for several reasons:
• Road User Safety Concerns - The improper placement of temporary activity signs along a road
can compromise the safety of road users by interfering with traffic control devices, restricting
sight lines, or causing distraction. Political campaign signs comprise virtually all of the
temporary activity sign permits issued by the Road Department and have created numerous
road safety concerns in recent years.
• Lack of Statutory Authority — Road Department staff do not believe that ORS 368.950 gives a
county governing body the authority to permit the posting of political signs in public rights of
way under their jurisdiction. Temporary activity signs authorized under the statute include signs
" .. giving information about community or civic enterprises of a noncommercial nature."
• Residual Property Rights — Road rights of way under Deschutes County jurisdiction generally
consist of easements for public ingress and egress over land, leaving certain residual property
rights with owners of underlying or abutting property (see ORS 93.310(4), ORS 271.140, and ORS
368.366. Temporary activity signs within these rights of way can be problematic when the
underlying or abutting property owner does not consent to the placement of a sign that is not
an official traffic control device or that is not otherwise necessary to meet the needs of road
users (i.e., political signs). Further, ORS 368.955 prohibits the placement of such signs within
view of a county road without the consent of the property owner. Road Department staff assert
that this would include consent by an abutting property owner whose fee ownership generally
extends to the centerline of a public road right of way.
• State and Countywide Inconsistency - Deschutes County appears to be the only public road
agency in Oregon that permits political signs in their rights of way. The County's current
permitting of political signs within public rights of way is inconsistent with rules and messaging
from all other public road agencies in Deschutes County and Oregon who actively prohibit
political signs on their rights of way.
Page 2of3
• Administration and Enforcement — The administration, monitoring and, regulation of political
campaign signs in the public rights of way takes up significant capacity of Road Department staff
in the weeks prior to elections. Issues include;
o Mediating matters related to visually -conflicting political signs among opposing
campaigns;
o Opposing campaigns checking the status of each other's permits;
o Property owners upset about signs located along their frontage;
o Other road agencies requesting intervention for signs placed at the intersections of their
roads and county roads.
With these reasons in mind, Road Department staff are proposing a text amendment to DCC 10.05 to
remove the permissibility of political signs within the public right of way.
Additionally, the proposed text amendment for DCC 10.05 includes modernization of other portions of
the code chapter to clarify procedures for permitting of temporary activity signs and tourist/motorist —
oriented directional signs.
Page 3 of 3
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Title 10.05, Right of Way
Signs, of the Deschutes County Code.
*
*
*
ORDINANCE NO. 2023-020
WHEREAS, the Deschutes County Code (DCC) contains rules and regulations duly enacted through
ordinance by Deschutes County and the Deschutes County Board of Commissioners; and
WHEREAS, from time -to -time the need arises to make amendments, including new enactments to the
DCC; and
WHEREAS, staff from the Road Department have identified a need to amend DCC 10.05 to further
identify the types of signs that may be authorized for placement within county road right-of-ways; and
WHEREAS, the Board of County Commissioners of Deschutes County considered this matter at a duly
noticed public hearing August 30, 2023, and determined that DCC 10.05 should be amended; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC 10.05 is amended to read as described in Exhibit "A," attached hereto
and by this reference incorporated herein, with new language underlined and language to be deleted in
strikethrougt,
�rrncc�vug,�•
Section 2. ADOPTION. This Ordinance takes effect 90 days after its adoption.
///
PAGE 1 OF 2 - ORDINANCE NO. 2023-020
Dated this of , 2023 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ANTHONY DeBONE, Chair
PATTI ADAIR, Vice Chair
ATTEST:
Recording Secretary PHIL CHANG, Commissioner
Date of 1st Reading: 30th day of August, 2023.
Date of 2nd Reading: 13th day of September, 2023.
Record of Adoption Vote
Commissioner Yes No Abstained Excused
Patti Adair
Phil Chang
Anthony DeBone
Effective date: 13th day of December, 2023.
PAGE 2 OF 2 - ORDINANCE NO. 2023-020
EXHIBIT A
(To Ordinance No. 2023-020)
CHAPTER 10.05 RIGHT OF WAY SIGNS
10.05.010 Introduction
DCC Chapter 10.05 is enacted to establish standards and procedures for signs to be installed and maintained
within public rights of way which fall under the jurisdiction of the Board of County Commissioners, and
which are necessary to meet the needs of the motorist in locating public recreational facilities and services
open to the general public. DCC Chapter 10.05 shall be known as the Deschutes County Road Right of
Way Sign Ordinance.
HISTORY
Adopted by Ord. 90-011 §1 on 1/2/1991
Amended by Ord. 95-034 §1 on 5/17/1995
Amended by Ord. 2020-005 §1 on 1/1/2021
10.05.020 Definitions
The following definitions apply as set forth in DCC 10.05.020.
"Administrator" means the Road Department Director or the designee for Deschutes County, Oregon.
"Applicant" means a person or entity applying for a permit to place signs, logos or sign panels or
supplemental sign panels within the right of way.
"Business sign (Logo)" means a separately attached sign mounted on the sign panel to show the brand,
symbol, trademark or name, or combination thereof, of services available.
"Directional information" means the name of the business, service or activity, qualified historical feature
or qualified cultural feature and other necessary information to direct the motoring public to the business,
service or activity, placed on a tourist -oriented directional sign.
"Directional sign" means a sign identifying and containing directional information to one or more public
services, to natural phenomena or historic, cultural, scientific, educational or religious sites or facilities, or
to recreational facilities open to the general public, including marinas, boat ramps, camping facilities and
day recreation facilities.
"Erect or construct" means to construct, build, assemble, place, affix, attach, create, paint, draw or in any
way bring into being or establish.
"Maintain" includes painting or routine repairs necessary to maintain the sign in a neat, clean, attractive
and safe condition, and the term includes allowing to exist.
"MUTCD" means the Manual on Uniform Traffic Control Devices.
"Qualified motorist business" means a business furnishing gas, food, lodging or camping which has met
the requirements of these regulations for the placement of a logo on a sign panel or supplemental sign panel.
"Reconstruction" means replacing a sign totally or partially to increase its size or performing any work,
except maintenance work, that alters or changes a sign.
"Responsible operator or owner" means the owner in fee simple or a person or entity who operates a
motorist business and who has authority to enter into an agreement relative to matters covered by hCY2
10.05:
"Right of way'"_ineans the area betweenthe boundarylinesofastreet, road, or other_puhlic, easement.under
the jurisdiction of the Board of County Commissioners.
"Sign panel" includes "motorist informational signs," "specific intornationai panel' anCi "logo signs."
"Tourist -oriented directional sign" means a sign panel with the name of a qualified tourist -oriented business,
service or activity, or qualified historical feature or qualified cultural feature together with directional
information erected in advance of or at an intersection.
"Traffic Control Device" means all signs, signals, markings, and other devices used to regulate, warn, or
guide traffic, placed on, over, or adjacent to a street, highway, pedestrian facility, bikeway, or private road
open to public travel by authority of a public agency.
"Trailblazer" means a small sign panel with the type of motorist service offered and the name, direction
and distance to the qualified motorist business.
"Type I signs"- means Qualified Motorist Business. signs consisting of tour route signs; tourist information
signs; public facility and service signs; commercial businesses offering food. gas, lodging or camping
services; historic location signs; federal, state and local recreational and facility signs; and nonprofit
institutions, including churches and civic organizations.
"Type II signs" means Qualified Tourist -oriented Business signs identifying any legal, cultural, historical,
recreational, educational or entertaining activity or a unique or unusual commercial or nonprofit activity
the major portion of whose income or visitors are derived during its normal business season from motorists
not residing in the immediate area of the activity.
HISTORY
Adopted by Ord. 90-011 §1 on 1/2/1991
Amended by Ord. 95-034 §1 on 5/17/1995
Amendedly Ord. 2023-020 §1 on 9/13/2023
10.05.030 General Requirements
Except for those signs which are approved by the Administrator pursuant to DCC 10.05.060 and except for
signs that are exempted under DCC 10.05.040, a person may not erect or maintain a sign or sign panel on
County right of way.
HISTORY
Adopted by Ord. 2023-020 §1 on 9/13/2023
10.05.040 Exemptions.
The following signs are exempted from the requirements of DCC 10.05.030:
A. Those traffic control devices that are required for traffic control and safety included in the MUTCD
as determined by the Administrator.
B. Directional signs for temporary activities that are granted a permit by the Administrator lasting less
than 14 days which otherwise are in compliance with the terms of this ordinance, including parades,
fun runs, bicycle or pedestrian contests, or special public functions.
C. Type I and Type II signs that are granted a permit by the Administrator.
HISTORY
Adopted by Ord. 90-011 §1 on 1/2/1991
Amended by Ord. 95-034 §1 on 5/17/1995
Amended by Ord. 2023-020 §1 on 9/13/2023
10.05.030-050 Prohibited Uses
A sign or sign panel exempted under DCC 10.05.040 may not be erected or maintained if it:
A. Interferes with, irritates or resembles any official traffic control sign, signal or device, or attempts
or appears to attempt to direct the movement of traffic.
B. Prevents the driver of a motor vehicle from having a clear and unobstructed view of official traffic
control signs and approaching or merging traffic.
C. Contains, includes or is illuminated by any flashing, intermittent, revoh'ing, rotating or moving
lights, or moves or has any animated or moving parts. This subsection does not apply to_traffic
control devices.
D. Has any lighting, unless such lighting is so effectively shielded as to prevent beams or rays of light
from being directed at any portion of the main traveled way of a road, or is of such low intensity as
not to cause glare or to impair the vision of the driver or otherwise to interfere with the operation
thereof.
E. Is located upon a tree or painted or drawn upon a rock or other natural feature.
F. Advertises or calls attention to an activity or attraction no longer carried on.
G. Advertises activities that are illegal under any state, federal or local law applicable at the location
of the sign or of the activities.
H. Is not maintained in a neat, clean and attractive condition and in good repair as determined by the
Road Department Director or his designee.
I. Is not able to withstand a wind pressure of 20 pounds per square foot of exposed surface.
I J. Is on a vehicle or trailer. This subsection does not apply to avehicle or trailer used for transportation
by the owner orperson in control, of the property.
hi Does not meet the requirements of DCC 10.05 or the MUTCD.
HISTORY
Adopted by Ord. 90-011 §1 on 1/2/1991
Amended by Ord. 95-034 §1 on 5/17/1995
Amended and Renumbered by Ord. 2023-020, 1 on 9/13/2023
1. Those traffic sign. ,',a, re`' +or4ra fi ntr,41 and- safety included in the MUTCD.
e-i}t
3. "Temporary activity signs that are granted a permit lasting less than 90 days whieh otlicrwisc are in
compliance : >
r , r „ 4fie ,1 s •eciar put4ie-f�••,rrictions,
HISTORY
Adopted by Ord: -90- O11 }I M 1 /-2/1991
Amended by Ort1,-95 034 41-on-5/4-7,41995
es
Th f„ owing+y�e„ i-sign -are-allowed-under the terms of DCC `Title 10:
'1"'{IC"'("pT"[{:l'PP i1T�� I�"r.'1G.-T TTL �I�l1J
A. Type I Qualified Motorist. -Business. Tour—route-::gn ; to ist :,ffe-i'ma4ien sig m; . b'ic facility
a ' ,g-fooe gas,-loflgifig-er camping services; historic
B. Type II Qualified Tourist oriented Business. Any legal, cultural, historical, recreational,
HISTORY
A4opwd by Ord. 90 011 §1 OH-1/24991
A-meniled-by-( =d,-95 031 #1 ea 3PI7/19 5
10.05.060 Application Process — Type I and Type II Signs
A. Application for a Type I or Type II sign shall be made in writing addressed to the Road -Department
D for Desei,. gor.Administratnr. It may be in letter form or on a form prepared
for such purpose by the department. Information contained shall include the following: the name,
address and telephone number of the owner or operator of the business or service for which the
sign is intended; the reason for the sign; a description of the location(s) for the sign; a description
of the information requested on the sign; and be accompanied by the appropriate application fee.
Each business applicant shall also submit a copy of the business' land use permit. The Administrator
shall notify the appropriate Planning Director of the application and request review and comment
on the application.
B. Within 30 working days from the date of receipt of the request for a sign, the Administrator shall
respond in writing to the applicant as to the adequacy of the information received. Requests for
signs that do not comply with the provisions of DCC 10.05 shall be denied by the Administrator.
If the application is denied, the Administrator shall cite the appropriate section of the ordinance or
MUTCD pertinent to the application.
C. Each application shall be accompanied with the appropriate fee for processing. If the application is
approved, the applicant shall make arrangements to have the department install the sign and pay
the required costs for materials, labor and travel. Payment of such costs and execution of a
maintenance agreement, along with not less than two year's maintenance fees, shall be made in
advance.
D. If the application is denied, the applicant may appeal the decision as provided in DCC 22.
HISTORY
Adopted by Ord. 90-011 § 1 on 1/2/1991
Amended by Ord. 95-034 ,." 1 on 5/17/1995
Amended G Ord. 2023-02011 on 9/13/7023
10.05.070 Composition— Type 1 and Type II Signs
All signs installed under the terms of DCC Title 10 shall be in compliance with the MUTCD;
A. Sign panels shall have a blue background with a white reflectorized border for all signs, except
historical, cultural and recreational which shall have a brown background.
B. Logos shall have a blue background with a white legend and border. The principal legend should
be at least equal in height to the directional legend on the sign panel. Where business identification
symbols or trademarks are used alone for a logo, the border may be omitted, the symbol or
trademark shall be reproduced in the colors and general shape consistent with customary use and
any integral legend shall be in proportionate size. Messages, symbols and trademarks which
resemble any official traffic control device are prohibited. The vertical and horizontal spacing
between logos on sign panels shall not exceed eight inches and 12 inches respectively.
C. All directional arrows and all letters and numbers used in the name of the type of service and
directional legend shall be white and reflectorized.
D. Each logo shall be contained within a 24-inch wide and 18-inch high rectangular background area,
including border.
E. All letters used in the name of the type of service on the sign panel shall be four -inch capital letters.
F. Tourist -oriented directional signs shall have a blue reflectorized background with a white
reflectorized border and message. The intersection sign shall not exceed 18 inches in height and 72
inches in length, and shall have not more than two lines of legend, including a separate direction
arrow and the distance to the facility to the nearest one -quarter mile. The content of the legend shall
be limited to the identification of the business and shall not include promotional advertising as
determined by the Administrator.
A six-inch letter height shall be used. Advance tourist -oriented directional signs shall be the same
as intersection tourist -oriented directional signs, except that in lieu of the directional arrow and
mileage, the sign shall include the directional word information "ahead" or "next left" etc. as may
be required.
Fi EI. All directional arrows, letters and numbers used in the name of the type of service and the
directional legend shall be white and reflectorized.
#:I.T'ourist-oriented directional signs are to be located at intersections.
I J._Notwithstanding the fact that a tourist -oriented business meets all of the eligibility requirements of
this ordinance and applicable provisions of the Deschutes County Code, an application may be
denied if it is determined, after investigation by the Administrator, that adequate direction to the
business cannot be given by a reasonable number of allowable tourist information directional signs.
HISTORY
Adopted by Ord. 90-011 §1 on 1/2/1991
Amended by Ord. 95-034 §1 on 5/17/1995
Amended by Ord. 2023-02011 on 9/13/2023
10.05.080 Fees; Installation And Maintenance — Type I and Type II Signs
A. All Type I and Type II signs, except city, county, state and federal directional and information
signs, shall be required to reimburse the County for the actual costs of processing the application
and the material and labor required to construct, purchase, locate, install and maintain a sign for an
applicant. A fee schedule shall be adopted each budget year which sets forth the department's fees
which shall apply until replaced by a new fee schedule.
B. All Type I and Type II signs shall be installed, maintained and removed by the County in
accordance with the MUTCD and DCC 10.05.
HISTORY
Adopted by Ord. 90-011 §1 on 1/2/1991
Amena'ea'dyOra: v".f-v34'off Myr'.,`
Amended by Ord. 2023-02(1 on 9/13./2023
10.05.090 Criteria For Specific Information Panels-- Type I and Type II Signs
A. Each qualified motorist business identified on a sign panel shall have given written assurance to
the Administrator of its conformity with all applicable laws concerning the provisions of public
accommodations without regard to race, religion, color, sex or national origin, and shall not be in
breach of the assurance.
B. The types of service permitted shall be limited to: "Gas," which shall include fuel, oil, tire repair,
air and water, restroom facilities, drinking water and telephone, with continuous operations for a
minimum of 12 hours a day, six days a week. "Food" shall include, continuous operations for a
minimum of 12 hours a day, six days a week, restroom facilities and telephone, with the primary
business of providing meals. "Lodging" shall include, adequate sleeping accommodations, modern
sanitary facilities and drinking water. "Camping" shall include, adequate parking accommodations,
modern sanitary facilities and drinking water.
C. Panels shall be in the direction of traffic. Successive sign panels shall be those for "camping,"
"lodging," "food," and "gas," in that order.
D. Riders with the words "diesel" or "LP gas" or a rider containing both may be placed on a sign panel
underneath any gas logo if the qualified motorist service business has diesel or LP gas available
during its hours of operation. Such rider shall be 35 inches long and seven inches high with six-
inch letters. The color shall be blue with white letters. The combination rider shall be 52 inches
long and seven inches high with five -inch high letters.
E. Each qualified tourist -oriented business identified on a tourist -oriented directional sign shall have
given written assurance to the Administrator of its conformity with all applicable laws concerning
the provisions of public accommodations without regard to race, religion, color, sex or national
origin, and shall not be in breach of that assurance.
F. Except for undeveloped cultural and historic features, a qualified tourist -oriented business shall
have restroom facilities and drinking water available; continuous operation at least six hours per
day, six days a week during its normal business season; a license where required; and adequate
parking accommodations.
HISTORY
Adopted by Ord. 90-011 §1 on 1 /2/1991
Amended by Ord. 95-034 §1 on 5/17/1995
Amended by Ord. 2023-020 §1 on 9/13/2023
10.05.100 Spacing Of Signs And Panels— Type I and Type II Signs
Spacing of sign panels and the placement of directional signs shall be in accordance with the MUTCD and
in the judgment of the Administrator. In any case, the number of signs, including directional signs, shall be
the minimum necessary to enable a motorist to locate the tourist -oriented business or to locate the public
service.
HISTORY
Adopted by Ord. 90-011 §1 on 1/2/1991
Amended by Ord. 95-034 §1 on 5/17/1995
Amended by Ord. 2023-020. 1 on 9/1/2023
10.05.10510 Application Process — Temporary Directional Signs
A. Application for a temporary directional sign shall be made in writing addressed to the Administrator.
It may be in letter form or on a form prepared for such purpose by the Department. Information
contained shall include the following: the name, address and telephone number of the coordinator of
the activity for which the sign is intended; the reason for the sign; a description of the location(s) for
the sigma description of the information requested on the sign] and be accompanied by the
appropriate application fee. Each applicant shall also submit a copy of the land use peuuit or special
event pernut,if applicable. The Administrator shall notify the appropriate Planning Director of the
application and request review and comment on the application if applicable.
B. Within 30 working days from the date of receipt of the request for a sign, the Administrator shall
respond in writing to the applicant as to the adequacy of the information received. Rguests for signs
that do not comply with theprovisions of DCC 10.05 shall be denied by_theAdministrator. _,_If the
application is denied, the Administrator shall cite the appropriate section of the ordinance or MUTCD
pertinent to the application.
C. Each application shall be accompanied with the appropriate fee forocessing.
D. If the application is denied, the applicant may appeal the decision as provided in DCC 22.
HISTORY
Adopted by Ord. 2023-020j: 1 on 9/13/2023
10.05.110 Violation; Penalty
A. Any person, firm or corporation erecting, constructing, reconstructing or maintaining a --buss
etio at n ,uri: sign in
violation of the provisions of DCC 10.05 constitutes a (lass A violation and shall be punishable
upon conviction by a fine of not more than $500.00.
B. Each day of a violation described in DCC 10.05.110(A) constitutes a separate offense and is
punishable as a continuing violation under DCC 1.16.
HISTORY
Adopted by Ord. 90-011 §1 on 1/2/1991
Amended by Ord. 95-034 §1 on 5/17/1995
Amended by Ord. 2003-021 §22 on 4/9/2003
Amended by Ord.2023-020,y1 on 9/13/2023
10.05.120 Nuisance Declared; Removal
A. Any sign maintained in violation of DCC 10.05 constitutes a nuisance.
B. Nothing in DCC 10.05 shall be construed to limit the authority of the County Road Official pursuant
to ORS 368.945.
HISTORY
Adopted by Ord. 90-011 §1 on 1/2/1991
Amended by Ord. 95-034 §1 on 5/17/1995
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: August 30, 2023
SUBJECT: Use of Opioid Settlement Funds
RECOMMENDED MOTION:
Move approval of the recommended use of opioid settlement funds over the next five
years.
BACKGROUND AND POLICY IMPLICATIONS:
The state of Oregon joined in a national opioid lawsuit against manufacturers. In 2021, a
nationwide settlement resolved all opioid claims brought by states and local political
subdivisions, awarding $26 billion for distribution over 18 years. The settlement amount
Deschutes County is expected to receive is estimated at $7.1 million over that time.
Settlement dollars must be used for specific abatement strategies, such as:
• Naloxone training and distribution
• Medication -assisted treatment distribution and other opioid-related treatment
• Pregnant & postpartum women and expanding treatment for neonatal abstinence
syndrome
• Expansion of hand-off programs and recovery programs
• Treatment for the incarcerated population
• Prevention programs
On July 17, 2023, the Board asked Health Services and Community Justice to collaborate on
a proposed plan of the funds. Together, the departments propose a multi -strategy five-
year plan that adds capacity and expands existing efforts by:
1) Adding targeted expert OUD prevention
2) Increasing coordination of surveillance and overdose prevention activities
3) Sustaining existing crisis interventions
4) Adding direct coordination of services to forensic population
5) Adding recovery peer services
BUDGET IMPACTS:
$3.4 million over five years. If approved, a budget adjustment and resolution will be
forthcoming from Finance.
ATTENDANCE:
Janice Garceau, Health Services Director
Deevy Holcomb, Community justice Director
Jessica Jacks, Public Health Manager
Deschutes County Health Services & Community Justice Opioid Settlement Funds Proposal
Current State
• Opioid crisis attributed to drug companies underrepresentation of risk and problem prescribing
• State and county litigation resulted in settlements
• $7.1 Million Opioid Settlement funds available to Central Oregon over 17 year period
• Amounts largest in early years due to unspent carryover and lump sum payment
• Doubling of OD Deaths in Central Oregon consistent with Oregon and other states early in
Fentanyl incursion
Effective Strategies
• Pain Standards Prescribing Practice guidance reduced problem prescribing 41% since 2013
• Overdose reversal trending up and ED visits for overdose trending down in 2023
• Medically Assisted Treatment (MAT) widely available and practiced in Central Oregon
• Infusion of Marijuana tax revenue into Oregon Counties expanded engagement and treatment
• DCSC a pivotal touchpoint for many of those most impacted by addiction
Current Risks & Needs
• Need for effective messaging regarding fentanyl and opioid risks and resources
• Lack of coordination of real time data to inform targeted intervention
• M110 creates need for more strategic, intensive and effective engagement strategies
Proposed Strategies
Strategy
Targeted
Prevention,
Surveillance &
Coordination
Means
1.0 New CHS III
.20 Existing Prevention
Supervisor
Prevention Strategy
Contracts & Supplies
Targeted Support Stabilization
Intervention Center SUD services
1.0 New BHS 1
Peer Services Contract
Activities
Education & training, assurance of
Naloxone, real-time epi surveillance,
local & regional planning &
coordination
Divert individuals from the ED, prevent
death by overdose or suicide, stabilize,
refer to treatment
Coordinate services to Community
Justice population, provide focused
case management & warm hand-off
referrals
Increase pre -and post -release access to
peer -based reentry support for those
returning from prison, ensure cultural
responsiveness of services through
training and professional support of
community -based peer support
Outcome(s)
• Complete multiple media strategies
• OD education to 10 organizations
serving high risk
• Develop a Naloxone resource website
• Develop Naloxone agency network &
ensure access to naloxone in community
• Develop surveillance tool to
communicate real time OD death
information
• Coordinate real-time surveillance with
intervention strategies
• Reduce visits to DCSC, Emergency
Services and Jail
• Develop an Epic workflow to document
Crisis Substance Abuse treatment
related referrals
• Establish a Crisis SUD referral baseline in
2025 and develop an improvement
target in 2026
• DCSC case manager will engage with 30
shared clients in FY25 and increase by
5% each year thereafter
Wepdnesday, August 30, 2023
-0
v)
LL
v
E
CU
4-)
4,)
CU
(/)
-0
'o
CD_
0
W
>
.-
- 0 .r1C3 0 .4.,
L. u
O 0<
U +-J
&) bJ0 E
O au 4u
a_ 4-)
,_� o
0... (i) (f)
N
OD = Overdose
OUD = Opioid Use Disorder
H = Mental Health
SUD = Substance Use Disorder
e
Health Resource Network - grant to fund services to those
1_ O
Ok—
00
cum
m
11 N
z�
ce
-I-
UJ4J
L
N
4-1
CU
C
0
ra
N
DCSC = Deschutes Cou
PH = Public Health
CCBHC = Certified Community Behavioral Health Clinic (primary care integration)
AT = Medically Assisted Treatment (Buprenorphine) for OUD
COOPR = Central Oregon Opioid Prevention & Response
r()
0
co
The Opioid Crisis
cu
0
cu
4J
LPI
a)
• mC
0 co
"0
CU a)
13 >
co"
705)
4-•
C
0 4:21...
n
(%j(I)
1
a)
>4.
-0
4J
a)
4J
77)
•
0 h
U 41)-
/
CU CI)
+-) >
u
u
V)
a)
49
•
2
v) v) -0
...Y 01) Q.)
(1)
•- D -1-'
u
QJ n0 -- i
_C - 4-- c 0 0 •:-
1) C : 0 --) v) c
-0 >1.4-) ai s- 75
-0
E,..,v) 4,-_-_,Cli r_u
co — L- E -4---, -41c-3 0 0 ti --c
to.-§ E 0 0 Y-
, a) 73 D a) ...c
- 4, c
4--,
11) ,, s- vi ›N 0 '
E 4_, 0... 8.0 c na = .i...-) 0_,..i...
m in CU .. C 0 t: a) .— () 0
bo D s_ 0 v) C CL. 0_ v)
-47, 0 .t..12 — h-•- 0 0 0 =
E 9-
a) a i,,,vD -C ("U
) .1..J a
!Cr
CO
N
W (n •
Y / L
LI' 0
N tU y- •
0-0 N�
N �O u
® �N i i
N vi
0 CU uCOc
a�+—•� EU
a� ° 0= to
ID
N
M
N
N
N
O
N
N
0
N
CO
0
O
N
m N N O u] O
stnea❑ asopiano Snia o JaquinN
H
Ca
in
i
v
a
0
a,o
a)
0
i
r-+
a)
0 _ 4J
✓ c ca c
C CU� D
O D -0O 0
Q ( . .(I) x U
O C v N. to N
L
in O c—�
a"� 0 0-o O >
'� CU
O U .0 .V
C 0 +-1 II• . •— O
W L D dJ >4-
N �O v O W N
N in N +1-+ 0
N .— N
S.- '� 0 ra O
(Ni O N Ni 4-1 in
O _c
v0 Wm �o ,i I-
CU N VD 00N O
C
CD
(10
c
N
D
v
N
4J
L
L N
4- CU
73 O
.5 N
cr M
L- O
N
O N
O
O E
co O
z
* Preliminary COOPR data may change
w
L.
M -
N
i 0
� O > bA
RS
.- N 'v) N
>
-0 > CU CU CU •
_
u. 0 73 u 0
�0_ CwO
O C b.° c ro
-10 O >,u D ca 2by -
La n c6
.i O Ocu bip cU
,fir— cria
-O
Q
s N �O i v_C)
Ou > NCD +�
4-1 Ca .� N 6O
N 03 uco
O O � Q)VI V >+ c .N N au
v,-0O OO O,(uO
o- L.- N Oa)bA a)>coO
1- O O , o C) N
O ( -0 4_,
_C NI a) > a)
_ C C C
® 0 4- > tU b O
® N N N— L V
�' O i- ' -0 c6
i L O E C O N 06 Ocu
_ to c +J O' O_ -c u c
•rimiO Iiii �� �� cc �5 >,c
i w u v1 E u_ >, u n 1— 0_
tal
0 O ° r\i Lfl
Pain Standards Task Force:
& OD Visits to ED
Narcan, OD Reversa
Problem prescribing down 41% since 2013
Harm Reduction:
Overdose reversal trending up
ED visits for OD trending down
0
ev
0
fsl
gui
Doses Distributed Doses Used to Reverse OD ,Ew: E
C
NIY
. L-
a) NC vC 4J
73OO :a) >_>
D -OE ac
C"u �C uu
•��O N0 iCU �
• v= C N Q CU L-
-5 a) 0 ( u 0
il-
40 C > +-C-) '0 U
C �,
i u `I- (0 G1 VI
NC � °
u� o 0
u �o_c �I_ �_0
®®
N
O
-0 -0
-CC
co
O C
> O
4-1
CEDE
cu
Eaucu*_
u a) 4J
i C E C
d)(1) N
> ao E
o Qao'C
v X C a
cc a) a) cr
:4=
_
•
4,64
•®
ra
•
L.
ra
1515 1/1
u
)666
•
•
u1.1
0.1.5".bn
E tom
VI
V
C
v a)
-o E
CU 4-1
L(3
a) CU
4J
rtS
v) N
C
0a)
v
v C
O .-
0
Q v
V/*r
C VVI
O i
CD Q
CU 0-
O cu
E • -0
O
O 2
•_
_
•
imm
•
onfa
MIEEMEI CO
•
•4.0
tn
•
MUM U
al) fu
•.
0
J7) •
V0
* Reif et al, 2014: Peer Recovery Support for Individuals With Substance Use Disorders: Assessing the Evidence
aboration
0
u
au
>4k
aA
IA
au c
baCD
v
L
1
ntervention Services
Add Recovery Peer
ance, & Coordination Strategy
Targeted Prevention, Survei
aJ
0
L
a
0
C v,
a> > E 06
0 in aW 7.2
�
o
o o.
0
O os
CC+ACC cu
CNN
a
0-
0
i
0
u.:;o
0
0
CU
•
b.0 O IA
o4— 0 06 E c
O N °6 i v >> i
CO
N —b.C a7 E
V •_ a) = a)
0 aJ 4-, O In RS to
v) a0 o .Y-C - >
of v V A O-0 N 0
CIJ � C co a) �O
C `
i a) ti N-C E-0
S- aJ i. 4-3 C
2 C
�n a�N isJ
Lll
RS
a)a)
> i C� > O C >
Eai 1--0Ex> c
.. L. a.c3 _a)o uJo
H
0
0
V
$751,542 1.0 FTE Community Health Specialist III (New FTE) over 5 Years
$156,798.20 FTE Health Services Supervisor (Existing FTE with new duties assigned)
$446,334 Prevention Strategies, Supplies & Equipment, and Indirect
•W a;
.�
'� 0 0
> -o
.47 7 Q � a, a > O
V�, 0 oru
< 0 cn O ( v
CI)0
.>_bro o a `-' C�
•— •D U
to •� O a_' c6 O E n3 •-
sm.N 0C -' O 4-
•� b-00 (I)O aJ
w N N •C N7
L a)� 0 by D'v uO� '
p >, +�-+ vi 4; O Q L
03 6') E +...,
aJ c 0 +_J v
�, O i L> D 0 O 0
® -0-0 a)
N — --+
4J d
C i N
O ftN E o c
a) 0
0 N -I--).0 cb i
a) 49 IA N v >, i— co s_ b-0
a) .. -a-, ..)_.
v., -(7)
,„ 9, _ c6 O u ;-'
cn 0 0 CI) bA a) -0 N
�a�
�bA -� +da, a,-0 o �c
a) -2 O C �N p -0 " O
c�
411111 (0 a, n o o E ° co
W -a
0-0v o� >0 -� TO
`'3o
L LU E Q u2 0 o w -O bbOO
i
NAY
N NN
v v0
a-' �' �N aJ
ON v >, rr1
(1 N 4''.0 CO al f3 WO
C NI
O cn '�' u N
a
�� a)co 5>, c ._ co
u oz -On all c� E
—p _p CV) �C �, _O
ro
5�-' c� cu cD v cz
CU
E� oV •_O 0 ��
�� �� x 0
N� +.; -o
cc �p co
c
a)
iAN 0 a3 aJ O U
XC N
Ou o0 5 4 SO0N
4—O Cn3 OL 61 _ Cr_
Ov 0 c9u
Eo L_ N 0 E �c
.E E o c °' u co--
•_O },03 .vim, 0 c_
�� 0L c� +-, L
0 a'ocn :F..a)
00 �� a, c ON 0c6
CC OL uL —p
0 O� N� i 0 �� C�
�Q N"0 N >� cO
a�Q (0 cc Do cp
tea) �� v,z ��
�•CCLC
00 00 Ov OC
— x — x c — O
L� >0 Tv vC Na_
>� if Nr6 Nro N�
os oc a of ®�'
Lu
Lu
tn
-
RS a,
0
O W
u
W
Z
0
0
•
v
0
ao
a) --
�O -0 _ A 4 C
C �O u
`0 o m`)� v>
caro s-
vi
In ;1 D• u
�� O>r6 N wa)+-J
HO
11 OE��3o�0NQ_O
�.V0�QN - ENE°o•-3ad4-C
:0uv s
+.+ ��o tin`—o E N -0C
TSD '0 •.. 4 HOC N �00
u.
C�r▪ uN>i 00 0tiiLV LLCI-
O
Du GUm V�,u0-
•• . L.
O RS
0 >-
w Lf1
w
CU
co
0
Q
b0
a�
ra
gla
C
O
.475
4-)
N
GJ
CL
J
LU
1
CI
LN
LN
z
0
LN
-J
0
Lu
a
H
u
LN
z
0
1 N
cn u
uN
a) >,
vCL,�
-0 E
a)Ua-+
c�
U 0)
CU
O.N
-
L L-
Q
ntervention Activities
V1 V
.N c eiC
•Lco 1
V 00 ca
6'4
4J
— 0
u O N
c
•— 0 z
>1 D N
i
D N
0
O- -4-) N
E dJ c pi
O® N N O E
N (0 D 6
u C _0 v
_ =
E L7 +"'
•j `0 co
• i
N N co - co Q
ti L b.A - u °i _
ca a- )• u_ +J - CC)V , c6 to C
V) E o -i.J U O
L N CCU
OWL v�03C CU
�V� N
•N4-
��roQ f c (Dv'
co
4_, ®tn
fri
• ) cam
r V) Q_ W
LA 5 V)
Measured Outcomes:
.N
U
N
u�
O L-
O G)
O�
L N
O-
��
o E
w�
c
O ▪ N
>-o
N Q
rtl—
V) N
U�
® V)
N
O
CU
ro
i®
N
N- C
L•—
O G))
U�
N
>O
0 Q
▪ E
we
0_�O
U v
0o
tervention Activities
to.
c0 E
�
N
� N o
u Li _
c C >,b-o c
N c —c
rE3 a) -� a)N v
cz , o D v
a' c6 L u y- �, a>>''
c) -o ( c N
o •- u .E-E c O
0co
O a_QN O Ou
06 �� 0 u b0
c N a_ u a5 73 c c
O CU L L_ ND - c v) c
�� - ��N c - L.
0 a-,
(13 v) u u • a)
in N c c . V) ago E +�_-+
O c �' O
c-o O.2 _ .N C Q
a, U u Li- 5� : 0 Q bro
u O 0 0 ti.>
N•L - ra
_c- 0v OL_ N c ...... o
o a) •
O U u a)0 c
L. O (13 N i "> N
D N
0 QN c0 •uQ 0.) (I O
Q � 0;-, 0 N 0 -a 0
N
O_ N O c
N a--+ tII c (/1 v1 0 L. -C
�v, ��0 N13c • E
NN uu O N
co bAv R� v a u v) E a-+ - 0 v lau 0(3 c�1)NO 0_ - (I) LA
�® (D ONO 4' co c ?�
_ —0_0 N N �.,
_0 >N"n Q N.� Q 0
N N L .N .a
a� c� c.� Q.0 a) v) u c GJ
Uc c0 co .V L. 0u u o L.
0� t0c Q Q 0 co u M
U• •> +� Qas
0o 0N._ . . ® ® 0 tz
®._ a_ u U �.fp CU
•
c
c O
.1 .
_
ro
-a r,
O
tIO
U
O a)
cc Z.'5
E m
a)
O
Q as
-0 CO "
O
aJ V
E C
a,
c
N
CU
= O
-o -7
a)
i V
a) n
V)
a,
o
.. o
:: v)
L.
4 •i
+-,
N
tn
RI (T5
1— a) t—
o O ..
-a O C
L. x
"0 5 C
m
c Z a,
VI bA
a CO
c c 0 O.CO rt3
u
°O
V
co
a)
Emergency Preparedness: Managing Health Alerts
0
N N
a) 47-;
v
Q
a)
a) -
(13
v a)
bcA
co r6
X
Q a)
a,
-OaJ
to
a
o
N�
a) c N
V_ aJ
E a)
N '0 Q
O
O x
�� 0
rzc z
=x E
2° as
I!OI
-o
0_ cn u
o z
73
u v ce V
i
U <
u2 i o
HOST: Intensive community based engagement, assessment and referrals
Community justice: Probation and parole supervision - culturally responsive services
e
s
e
1
1
e
•
•
e
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
1
1
e
e
1
1
1
1
1
7r m N
suoilI!W ($)
6£Ad
8E/kJ
LEM
9E i
SE M
ad
£ad
Z£lkd
L £M
OEM
6ZAJ
8ZAd
1
I
i
Lad
9ZAJ
S ZAJ
® 17?J d
Intervention and Case Management
Intervention - Contracted Peer Services
in
0
•Zill
VI
a)
O CO
N :4:.r a)
O co ii
N 4- (I)
o
z
E 0 >, 'E
4 .V i r-
Q.r.: W
V d)
. -o
i
O C
O • ® E 4-
Q. N fa
o oo�i i
O 0 c
> a. to L)
tol
.OO cv
-C O cli 0
v 0
O
a)
c6 CDN OD ® u = 0
1- CLU •
— •0)
cu -a a) o c Q > �.0
.
J 42) ��o -o a)oO
Cov) tt'ub
N
® N® c ®_. W w c
C
fa ii to O as , In O
• •(C-+ E ro 0
V•.
7:1
'En MU
00 .1- O z 0
.
O O C N W
.Q� �� O� O p®
OV) Oi� �iA a6i�a
rt.. O .� �,,, S. dJ :►.. a)U
fa > �+
Z c oc 0 oc
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: August 30, 2023
SUBJECT: First Reading of Ordinance No. 2023-015 - LBNW, LLC, Plan Amendment and
Zone Change
RECOMMENDED MOTION:
Move approval of first reading of Ordinance No. 2023-015 by title only.
BACKGROUND AND POLICY IMPLICATIONS:
LBNW, LLC, requests approval to change the Comprehensive Plan designation (land use file
no. 247-21-000881-PA) of the subject properties from Agriculture to Rural Industrial, and
further requests approval to change the zone (land use file no. 247-21-000882-ZC) of the
subject properties from Exclusive Farm Use to Rural Industrial.
The entirety of the record can be viewed from the project website at:
https://www.deschutes.org/cd/page/247-23-000398-I u ba-remand-I bnw-Ilc-comprehensive-
plan-amendment-and-zone-change
BUDGET IMPACTS:
None.
ATTENDANCE:
Anthony Raguine, Principal Planner
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County
Code Title 23, the Deschutes County
Comprehensive Plan, to Change the
Comprehensive Plan Map Designation for
Certain Property From Agriculture to Rural
Industrial, and Amending Deschutes County
Code Title 18, the Deschutes County Zoning
Map, to Change the Zone Designation for
Certain Property From Exclusive Farm Use to
Rural Industrial.
ORDINANCE NO. 2023-015
WHEREAS, LBNW LLC, applied for changes to both the Deschutes County Comprehensive
Plan Map (247-21-000881-PA) and the Deschutes County Zoning Map (247-21-000882-ZC), to
change the comprehensive plan designation of the subject property from Agricultural (AG) to Rural
Industrial (RI), and a corresponding zone change from Exclusive Farm Use (EFU) to Rural Industrial
(RI); and
WHEREAS, pursuant to a Land Use Board of Appeals ("Land Use Board of Appeals") remand
and after notice was given in accordance with applicable law, a public hearing was held on June
28, 2023, before the Deschutes County Board of County Commissioners ("Board");
WHEREAS, pursuant to DCC 22.28.030(C) and the LUBA remand, the Board heard limited de
novo the applications to change the comprehensive plan designation of the subject property from
Agricultural (AG) to Rural Industrial (RI) and a corresponding zone change from Exclusive Farm Use
(EFU) to Rural Industrial (RI); now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as
follows:
Section 1. AMENDMENT. DCC Title 23, Deschutes County Comprehensive Plan Map, is
amended to change the plan designation for certain property described in Exhibit "A" and depicted
PAGE 1 OF 3 - ORDINANCE NO. 2023-015
on the map set forth as Exhibit "B" from AG to RI, with both exhibits attached and incorporated by
reference herein.
Section 2. AMENDMENT. DCC Title 18, Zoning Map, is amended to change the zone designation
from EFU to RI for certain property described in Exhibit "A" and depicted on the map set forth as Exhibit
"C", with both exhibits attached and incorporated by reference herein.
Section 3. AMENDMENT. DCC Section 23.01.010, Introduction, is amended to read as
described in Exhibit "D" attached and incorporated by reference herein, with new language
underlined.
Section 4. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative
History, is amended to read as described in Exhibit "E" attached and incorporated by reference
herein, with new language underlined.
Section 5. FINDINGS. The Board adopts as its findings in support of this Ordinance the
Decision of the Board on remand as set forth in Exhibit "G" and incorporated by reference herein.
The Board also incorporates in its findings in support of this decision, the original Decision of the
Board attached as Exhibit "F", the Decision of the Hearings Officer, attached as Exhibit "H", and the
Updated Economic, Social, Environmental, and Energy analysis, attached as Exhibit "I", each
incorporated by reference herein.
Section 6. EFFECTIVE DATE. This Ordinance takes effect on the 90th day after the date of
adoption.
Dated this of , 2023 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ANTHONY DEBONE, Chair
PATTI ADAIR, Vice Chair
ATTEST:
Recording Secretary PHIL CHANG, Commissioner
Date of 1 St Reading: 30th day of August, 2023.
Date of 2" Reading: 13th day of September, 2023.
PAGE 2 OF 3 - ORDINANCE NO. 2023-015
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Anthony DeBone X
Patti Adair X
Phil Chang X
Effective date: 12th day of December, 2023.
ATTEST
Recording Secretary
PAGE 3 OF 3 - ORDINANCE NO. 2023-015
Exhibit "A" to Ordinance 2023-015
Legal Descriptions of Affected Properties
For Informational Purposes Only: Parcel No. 1612230000305 (commonly known
as 65301 N. HWY 97, Bend, OR 97701)
(Legal Description Begins Below)
File No. 414664AM
A parcel of land located in the NW 1/4 SE 1/4 of Section 23, Township 16 South,
Range 12, East of the Willamette Meridian, Deschutes County, Oregon, lying Westerly
of the Central Oregon Irrigation's Pilot Butte Canal, and more particularly described as
follows:
Commencing at the North One -Quarter corner of said Section 23; thence South
00°04'40" East, 3,651.07 feet along the North -South centerline of said Section 23 to the
true point of beginning; thence South 89°44'29" East 444.09 feet to a point on the
centerline of the Pilot Butte Canal (as constructed); thence South 04°43'33" West,
194.02 feet along said canal centerline; thence South 21°51'49" West, 123.14 feet along
said canal centerline to a point on the South line of said NW 1/4 SE 1/4; thence North
89°44'29" West, 381.83 feet along said South line to the Southwest corner of said NW
1/4 SE 1/4; thence North 00°04'40" West, 307.93 feet along the West line of said NW
1/4 SE 1/4 to the true point of beginning.
EXCEPTING THEREFROM the right-of-way of the Pilot Butte Canal.
1-
EXHIBITATO ORDINANCE 2023-015
For Informational Purposes Only: Parcel No. 1612230000301 (commonly known
as 65305 N. HWY 97, Bend, OR 97701)
(Legal Description Begins Below)
File No. 414726AM
Description of a parcel of land situate in a portion of the Southwest Quarter of the
Northeast Quarter (SW 1/4 NE 1/4) and the Northwest Quarter of the Southeast
Quarter (NW 1/4 SE 1/4) of Section Twenty -Three (23), Township Sixteen (16) South,
Range Twelve (12), East of the Willamette Meridian, Deschutes County, Oregon,
Westerly of Central Oregon Irrigation District's (C.O.I.D.'s) Pilot Butte Canal (P.B.C) and
now to be more particularly described as follows:
Commencing at a 3/4" pin at the North 1/4 corner of said Section 23, the initial point;
thence South 00°04'40" East along the Westerly line of said NE 1/4, 1,319.37 feet to a
3/4" pipe and the true point of beginning; thence South 89°44'27" East along the
Northerly line of said SW 1/4 NE 1/4, 55.72 feet; thence along the centerline of
C.O.I.D.'s P.B.C. Canal as constructed as follows: South 11° 11'43" East, 286.69 feet;
thence South 12°29'54" East, 422.34 feet; thence South 28°43'42" East, 285.24 feet;
thence South 10° 16'16" West, 175.47 feet; thence South 03°55'21" East, 458.45 feet;
thence South 21°05'56" East, 91.18 feet; thence South 00°46'50" West, 307.68 feet;
thence South 18°31'30" East, 204.98 feet, thus ending boundary along said center line;
thence South 18° 18'10" East, 70.74 feet to a 1 /2" pipe on Easterly bank of said canal;
thence South 04°43'33" West along said canal. bank, 299.37 feet to a 1 / 2" pipe; thence
South 21°51'49" West along said canal bank 123.14 feet to a 1 / 2" pipe; thence North
89°44'29" West along the Southerly line of said NW 1/4 SE 1/4, 381.83 feet to a 3/4"
pipe; thence North 00°04'40" West along the Westerly line of said NW 1/4 SE 1/4,
1,319.27 feet to a 5/8" pin at the center of said section; thence North 00°04'40" West
along Westerly line of said SW 1/4 NE 1/4, 1,319.87 feet to the point of beginning.
EXCEPTING THEREFROM that portion thereof conveyed to Robert C. Fair, etal, by
Deed recorded June 22, 1981, in Book 343, Page 15, Deschutes County Deed Records,
more particularly Described as follows:
A parcel of land located in the NW 1/4 SE 1/4 of Section 23, Township 16 South,
Range 12, East of the Willamette Meridian, Deschutes County, Oregon, lying Westerly
of the Central Oregon Irrigation's Pilot Butte Canal, and more particularly described as
follows:
Commencing at the North One -Quarter corner of said Section 23; thence South
00°04'40" East, 3,651.07 feet along the North -South centerline of said Section 23 to the
true point of beginning; thence South 89°44'29" East 444.09 feet to a point on the
centerline of the Pilot Butte Canal (as constructed); thence South 04°43'33" West,
194.02 feet along said canal centerline; thence South 21°51'49" West, 123.14 feet along
said canal centerline to a point on the South line of said NW 1/4 SE 1/4; thence North
89°44'29" West, 381.83 feet along said South line to the Southwest corner of said NW
1/4 SE 1/4; thence North 00°04'40" West, 307.93 feet along the West line of said NW
1/4 SE 1/4 to the true point of beginning.
ALSO EXCEPTING THEREFROM the right-of-way of the Pilot Butte Canal.
2-
EXHIBIT A TO ORDINANCE 2023-015
For Informational Purposes Oniy: ! arc?I No. 1612230000500 (commonly known
as 65315 HWY 97, Bend, OR 97701)
(Legal Description Begins Below)
That portion of the Northwest Quarter of the Southeast Quarter (NW1/4 SE1/4) of Section 23, Township 16
South, Range 12, East of the Willamette Meridian, Deschutes County, Oregon, described as follows:
Commencing at the Southwest corner of the NW1/4 SE1/4 of said Section; thence East along the South line
of the NW1/4 SE1/4 of said section a distance of 381 feet to the East line of the Pilot Butte Canal and the
True Point of Beginning; thence continuing along said South line, a distance of 71 feet to the Westerly line of
The Dalles-California Highway; thence Northeasterly along the Westerly line of said highway, a distance of
460 feet; thence West and parallel to the South line of the NW1/4 SEl/4 of said section, a distance of 205 feet
to the East line of the Pilot Butte Canal; thence Southerly along the East line of said canal to the True Point
of Beginning.
EXCEPTING THEREFROM that portion granted to the State of Oregon, by and through its Department of
Transportation in stipulated final judgment recorded September 21, 1992 in Book 276, Page 2146,
Deschutes County, Oregon
3-
EXHIBIT A TO ORDINANCE 2023-015
Legend
INN
RREA
Plan Amendment From
Agriculture (AG)
to
Rural Industrial (RI)
LIMESTONE AVE
Proposed Plan Amendment Boundary
16-12-23-00-00305
Comprehensive Plan Designation
AG -Agriculture
OS&C - Open Space & Conservation
RREA - Rural Residential Exception Area
MIN RI - Rural Industrial
16-12-23-00-00301
16-12-23.00-00500
OS&C
PROPOSED
COMPREHENSIVE PLAN MAP
Plan Amendment From Agriculture (AG) to Rural Industrial (RI)
Exhibit "B"
to Ordinance 2023-015
300
600
1,200
OS&C
OS&C
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
Tony DeBone, Chair
Patti Adair, Vice Chair
Phil Chang, Commissioner
ATTEST: Recording Secretary
Feet Dated this day of , 2023
Effective Date: , 2023
August 21, 2023
RR10:
Zone Change From
Exclusive Farm Use (EFUTRB)
to
Rural Industrial (RI)
:01MESTONE%AVE
RR10
Legend
QProposed Plan Amendment Boundary
Zoning
EFUTRB - Tumalo/Redmond/Bend Subzone
OS&C - Open Space & Conservation
RR10 - Rural Residential
- RI - Rural Industrial
16=12-23-00700305
-12-23-00-00301
OS&C
16-12-23-00-00500
PROPOSED ZONING MAP
Zone Change From Exclusive Farm Use (EFUTRB) to Rural Industrial (RI)
Exhibit "C"
to Ordinance 2023-015
� V
os&c
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
Tony DeBone, Chair
Patti Adair, Vice Chair
Phil Chang, Commissioner
0 30o 600 1,200
1 IFeet
August 21. 2023
ATTEST: Recording Secretary
Dated this day of , 2023
Effective Date: , 2023
secti,ow 522 Legi,s1,ative Historu
Background
This section contains the legislative history of this Comprehensive Plan.
Table 5.12.1 Comprehensive Plan Ordinance History
Ordinance
Date Adopted/
Effective
Chapter/Section
Amendment
2011-003
8-10-1 1/ 1 1-9-1 I
All, except
Transportation, Tumalo
and Terrebonne
Community Plans,
Deschutes Junction,
Destination Resorts and
ordinances adopted in
2011
Comprehensive Plan update
2011-027
10-31-1 1 / 1 1-9-1 I
2.5, 2.6, 3.4, 3.10, 3.5,
4.6, 5.3, 5.8, 5. I I ,
23.40A, 23.40B,
23.40.065, 23.01.010
Housekeeping amendments to
ensure a smooth transition to
the updated Plan
2012-005
8-20-12/ 1 1-19-12
23.60, 23.64 (repealed),
3.7 (revised), Appendix C
(added)
Updated Transportation
System Plan
2012-012
8-20-12/8-20-12
4.1, 4.2
La Pine Urban Growth
Boundary
2012-016
12-3-12/3-4-13
3.9
Housekeeping amendments to
Destination Resort Chapter
2013-002
1-7-13/ 1-7-13
4.2
Central Oregon Regional
Large -lot Employment Land
Need Analysis
2013-009
2-6-13/5-8-13
1.3
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
2013-012
5-8-13/8-6-13
23.01.010
Comprehensive Plan Map
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2013-007
5-29-13/8-27-13
3.10, 3.11
Newberry Country: A Plan
for Southern Deschutes
County
1
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 12 LEGISLATIVE HISTORY
2013-016
10-21-13/ 10-21-13
23.01.010
Comprehensive Plan Map
Amendment, including certain
property within City of Sisters
Urban Growth Boundary
2014-005
2-26-14/2-26-14
23.01.010
Comprehensive Plan Map
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2014-012
4-2- 14/7- I -14
3. 10, 3. I I
Housekeeping amendments to
Title 23.
2014-021
8-27-14/11-25-14
23.01.010,
5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
2014-021
8-27-14/11-25-14
23.01.010,
5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
2014-027
12-15-14/3-31-15
23.01.010,
5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Industrial
2015-021
1 1-9-15/2-22-16
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Surface Mining.
2015-029
1 1-23-15/ 1 1-30-15
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Tumalo
Residential 5-Acre Minimum
to Tumalo Industrial
2015-018
12-9-15/3-27-16
23.01.010,
2.2, 4.3
Housekeeping Amendments
to Title 23.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
2
2015-010
12-2- 15/ 12 2- 15
2.6
Comprehensive Plan Text and
Map Amendment recognizing
Greater Sage -Grouse Habitat
Inventories
2016-001
12-21-15/04-5-16
23.01.010;
5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from, Agriculture to
Rural Industrial (exception
area)
2016-007
2-10-16/5-10-16
23.01.010;
5.10
Comprehensive Plan
Amendment to add an
exception to Statewide
Planning Goal I I to allow
sewers in unincorporated
lands in Southern Deschutes
County
2016-005
11-28-16/2-16-17
23.01.010,
2.2, 3.3
Comprehensive Plan
Amendment recognizing non-
resource lands process
allowed under State law to
change EFU zoning
2016-022
9-28-16/ 1 1-14-16
23.01.010,
1.3, 4.2
Comprehensive plan
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2016-029
12-14-16/ 12/28/ 16
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from, Agriculture to
Rural Industrial
2017-007
10-30-17/10-30-17
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
20 18-002
1-3-18/1-25-18
23.01, 2.6
Comprehensive Plan
Amendment permitting
churches in the Wildlife Area
Combining Zone
3
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20 I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 12 LEGISLATIVE HISTORY
2018-006
8-22-18/ 1 1-20-18
1
23.01.010, 5.8, 5.9
Housekeeping Amendments
correcting tax lot numbers in
Non -Significant Mining Mineral
and Aggregate Inventory;
modifying Goal 5 Inventory of
Cultural and Historic
Resources
2018-011
9-12-18/ 12-1 1-18
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
2018-005
9-19-18/10-10-18
23.01.010, 2.5, Tumalo
Community Plan,
Newberry Country Plan
Comprehensive Plan Map
Amendment, removing Flood
Plain Comprehensive Plan
Designation; Comprehensive
Plan Amendment adding Flood
Plain Combining Zone
purpose statement.
2018-008
9-26-18/10-26-18
23.01.010, 3.4
Comprehensive Plan
Amendment allowing for the
potential of new properties to
be designated as Rural
Commercial or Rural
Industrial
2019-002
1-2-19/4-2-19
23.01.010, 5.8
Comprehensive Plan Map
Amendment changing
designation of certain
property from Surface Mining
to Rural Residential Exception
Area; Modifying Goal 5
Mineral and Aggregate
Inventory; Modifying Non -
Significant Mining Mineral and
Aggregate Inventory
2019-001
1-16-19/4-16-19
1.3, 3.3, 4.2, 5.10, 23.01
Comprehensive Plan and Text
Amendment to add a new
zone to Title 19: Westside
Transect Zone.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
4
2019-003
02-12-19/03-12-19
T
23.01.010, 4.2
Comprehensive Plan Map
Amendment changing
designation of certain
property from Agriculture to
Redmond Urban Growth
Area for the Large Lot
Industrial Program
2019-004
02-12-19/03-12-19
23.01.010, 4.2
Comprehensive Plan Map
Amendment changing
designation of certain
property from Agriculture to
Redmond Urban Growth
Area for the expansion of the
Deschutes County
Fairgrounds and relocation of
Oregon Military Department
National Guard Armory.
2019-01 1
05-01-19/05-16/ 19
23.01.010, 4.2
Comprehensive Plan Map
Amendment to adjust the
Bend Urban Growth
Boundary to accommodate
the refinement of the Skyline
Ranch Road alignment and the
refinement of the West Area
Master Plan Area 1 boundary.
The ordinance also amends
the Comprehensive Plan
designation of Urban Area
Reserve for those lands
leaving the UGB.
2019-006
03-13-19/06-11-19
23.01.010,
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
2019-016
1 1-25-19/02-24-20
23.01.01, 2.5
Comprehensive Plan and Text
amendments incorporating
language from DLCD's 2014
Model Flood Ordinance and
Establishing a purpose
statement for the Flood Plain
Zone.
5
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 12 LEGISLATIVE HISTORY
2019-019
12- 1 1 - 1 9/ 1 2-1 1-19
23.01.01,
2.5
Comprehensive Plan and Text
amendments to provide
procedures related to the
division of certain split zoned
properties containing Flood
Plain zoning and involving a
former or piped irrigation
canal.
2020-001
12-1 1-19/ 12-1 1-19
23.01.01,
2.5
Comprehensive Plan and Text
amendments to provide
procedures related to the
division of certain split zoned
properties containing Flood
Plain zoning and involving a
former or piped irrigation
canal.
2020-002
2-26-20/5-26-20
23.01.01,
4.2,
5.2
Comprehensive Plan Map
Amendment to adjust the
Redmond Urban Growth
Boundary through an equal
exchange of land to/from the
Redmond UGB. The exchange
property is being offered to
better achieve land needs that
were detailed in the 2012 SB
1544 by providing more
development ready land
within the Redmond UGB.
The ordinance also amends
the Comprehensive Plan
designation of Urban Area
Reserve for those lands
leaving the UGB.
2020-003
02-26-20/05-26-20
23.01.01,
5.10
Comprehensive Plan
Amendment with exception
to Statewide Planning Goal 11
(Public Facilities and Services)
to allow sewer on rural lands
to serve the City of Bend
Outback Water Facility.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20 I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 12 LEGISLATIVE HISTORY
6
2020-008
06-24-20/09-22-20
23.01.010, Appendix C
Comprehensive Plan
Transportation System Plan
Amendment to add
roundabouts at US 20/Cook-
O.B. Riley and US 20/Old
Bend -Redmond Hwy
intersections; amend Tables
5.3.T I and 5.3.T2 and amend
TSP text.
2020-007
07-29-20/10-27-20
23.01.010, 2.6
Housekeeping Amendments
correcting references to two
Sage Grouse ordinances.
2020-006
08-12-20/ 1 1-10-20
23.01.01, 2.1 1, 5.9
Comprehensive Plan and Text
amendments to update the
County's Resource List and
Historic Preservation
Ordinance to comply with the
State Historic Preservation
Rule.
2020-009
08-19-20/ 1 1-17-20
23.01.010, Appendix C
Comprehensive Plan
Transportation System Plan
Amendment to add reference
to J turns on US 97 raised
median between Bend and
Redmond; delete language
about disconnecting
Vandevert Road from US 97.
2020-013
08-26-20/ 1 1 /24/20
23.01.01, 5.8
Comprehensive Plan Text
And Map Designation for
Certain Properties from
Surface Mine (SM) and
Agriculture (AG) To Rural
Residential Exception Area
(RREA) and Remove Surface
Mining Site 461 from the
County's Goal 5 Inventory of
Significant Mineral and
Aggregate Resource Sites.
2021-002
01-27-21/04-27-21
23.01.01
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) To Rural Industrial (RI)
7
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 12 LEGISLATIVE HISTORY
2021-005
06-16-21/06-16-21
23.01.01, 4.2
Comprehensive Plan Map
Amendment Designation for
Certain Property from
Agriculture (AG) To
Redmond Urban Growth
Area (RUGA) and text
amendment
2021-008
06-30-21/09-28-21
23.01.01
Comprehensive Plan Map
Amendment Designation for
Certain Property Adding
Redmond Urban Growth
Area (RUGA) and Fixing
Scrivener's Error in Ord.
2020-022
2022-00 I
04-13-22/07-12-22
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
2022-003
04-20-22/07- 19-22
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
2022-006
06-22-22/08- 19-22
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Rural
Residential Exception Area
(RREA) to Bend Urban
Growth Area
2022-01 I
07-27-22/ I 0-25-22
(superseded by
23.01.010
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) To Rural Industrial (RI)
Ord. 2023-015)
2022-013
12-14-22/03-14-23
23.01.010
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20 I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
8
2023-001
03-01-23/05-30-23
23.01.010, 5.9
Housekeeping Amendments
correcting the location for the
Lynch and Roberts Store
Advertisement, a designated
Cultural and Historic
Resource
2023-007
04-26-23/6-25-23
23.01.010
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
2023-010
06-21-23/9-17-23
23.01.010
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
2023-018
08-30-23/ 1 1-29-23
23.01.010
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
2023-015
9-13-23/12-12-23
23.01.010
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) to Rural Industrial (RI)
9 DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. I LEGISLATIVE HISTORY
seoti,ovi, 5.12 Leg sL&tti-ve 1-1- stor j
Background
This section contains the legislative history of this Comprehensive Plan.
Table 5.12.1 Comprehensive Plan Ordinance History
Ordinance
Date Adopted/
Effective
Chapter/Section
Amendment
2011-003
8-10-1 1/ 1 1-9-1 I
All, except
Transportation, Tumalo
and Terrebonne
Community Plans,
Deschutes Junction,
Destination Resorts and
ordinances adopted in
2011
Comprehensive Plan update
2011-027
10-31-1 1 / 1 1-9-1 I
2.5, 2.6, 3.4, 3.10, 3.5,
4.6, 5.3, 5.8, 5. I I ,
23.40A, 23.40B,
23.40.065, 23.01.010
Housekeeping amendments to
ensure a smooth transition to
the updated Plan
2012-005
8-20-12/ 1 1-19-12
23.60, 23.64 (repealed),
3.7 (revised), Appendix C
(added)
Updated Transportation
System Plan
2012-012
8-20-12/8-20-12
4.1, 4.2
La Pine Urban Growth
Boundary
2012-016
12-3-12/3-4-13
3.9
Housekeeping amendments to
Destination Resort Chapter
2013-002
1-7-13/ 1-7-13
4.2
Central Oregon Regional
Large -lot Employment Land
Need Analysis
2013-009
2-6-13/5-8-13
1.3
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
2013-012
5-8-13/8-6-13
23.01.010
Comprehensive Plan Map
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2013-007
5-29-13/8-27-13
3.10, 3.11
Newberry Country: A Plan
for Southern Deschutes
County
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 12 LEGISLATIVE HISTORY
2013-016
10-21-13/ 10-21-13
23.01.010
Comprehensive Plan Map
Amendment, including certain
property within City of Sisters
Urban Growth Boundary
2014-005
2-26-14/2-26-14
23.01.010
Comprehensive Plan Map
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2014-012
4-2- 14/7- I -14
3.10, 3. I I
Housekeeping amendments to
Title 23.
2014-021
8-27-14/ 1 1-25-14
23.01.010,
5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
2014-021
8-27-14/ 1 1-25-14
23.01.010,
5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver Urban
Unincorporated Community
Forest to Sunriver Urban
Unincorporated Community
Utility
2014-027
12-15-14/3-31-15
23.01.010,
5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Industrial
2015-021
1 1-9-15/2-22-16
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Surface Mining.
2015-029
1 1-23-15/ 1 1-30-15
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Tumalo
Residential 5-Acre Minimum
to Tumalo Industrial
2015-018
12-9-15/3-27-16
23.01.010,
2.2, 4.3
Housekeeping Amendments
to Title 23.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20 I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 12 LEGISLATIVE HISTORY
2
2015-010
12-2- 15/ 12-2-15
2.6
Comprehensive Plan Text and
Map Amendment recognizing
Greater Sage -Grouse Habitat
Inventories
2016-001
12-21-15/04-5-16
23.01.010;
5.10
Comprehensive Plan Map
Amendment, changing
designation of certain
property from, Agriculture to
Rural Industrial (exception
area)
2016-007
2-10-16/5-10-16
23.01.010;
5.10
Comprehensive Plan
Amendment to add an
exception to Statewide
Planning Goal 11 to allow
sewers in unincorporated
lands in Southern Deschutes
County
2016-005
11-28-16/2-16-17
23.01.010,
2.2, 3.3
Comprehensive Plan
Amendment recognizing non-
resource lands process
allowed under State law to
change EFU zoning
2016-022
9-28-16/ 1 1-14-16
23.01.010,
1.3, 4.2
Comprehensive plan
Amendment, including certain
property within City of Bend
Urban Growth Boundary
2016-029
12-14-16/ 12/28/ 16
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from, Agriculture to
Rural Industrial
2017-007
10-30-17/10-30-17
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
2018-002
1-3-18/1-25-18
23.01, 2.6
Comprehensive Plan
Amendment permitting
churches in the Wildlife Area
Combining Zone
3
DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 12 LEGISLATIVE HISTORY
2018-006
8-22-18/ 1 1-20-18
23.01.010, 5.8, 5.9
Housekeeping Amendments
correcting tax lot numbers in
Non -Significant Mining Mineral
and Aggregate Inventory;
modifying Goal 5 Inventory of
Cultural and Historic
Resources
2018-01 1
9-12-18/ 12-1 1-18
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
2018-005
9-19-18/10-10-18
23.01.010, 2.5, Tumalo
Community Plan,
Newberry Country Plan
Comprehensive Plan Map
Amendment, removing Flood
Plain Comprehensive Plan
Designation; Comprehensive
Plan Amendment adding Flood
Plain Combining Zone
purpose statement.
2018-008
9-26-18/ 10-26-18
23.01.010, 3.4
Comprehensive Plan
Amendment allowing for the
potential of new properties to
be designated as Rural
Commercial or Rural
Industrial
2019-002
1-2-19/4-2-19
23.01.010, 5.8
Comprehensive Plan Map
Amendment changing
designation of certain
property from Surface Mining
to Rural Residential Exception
Area; Modifying Goal 5
Mineral and Aggregate
Inventory; Modifying Non -
Significant Mining Mineral and
Aggregate Inventory
2019-001
1-16-19/4-16-19
1.3, 3.3, 4.2, 5.10, 23.01
Comprehensive Plan and Text
Amendment to add a new
zone to Title 19: Westside
Transect Zone.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20 I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
4
2019-003
02-12-19/03-12-19
23.01.010, 4.2
Comprehensive Plan Map
Amendment changing
designation of certain
property from Agriculture to
Redmond Urban Growth
Area for the Large Lot
Industrial Program
2019-004
02-12-19/03-12-19
23.01.010, 4.2
Comprehensive Plan Map
Amendment changing
designation of certain
property from Agriculture to
Redmond Urban Growth
Area for the expansion of the
Deschutes County
Fairgrounds and relocation of
Oregon Military Department
National Guard Armory.
2019-01 1
05-01-19/05-16/ 19
23.01.010, 4.2
Comprehensive Plan Map
Amendment to adjust the
Bend Urban Growth
Boundary to accommodate
the refinement of the Skyline
Ranch Road alignment and the
refinement of the West Area
Master Plan Area I boundary.
The ordinance also amends
the Comprehensive Plan
designation of Urban Area
Reserve for those lands
leaving the UGB.
2019-006
03-13-19/06-11-19
23.01.010,
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture to
Rural Residential Exception
Area
2019-016
I I-25-19/02-24-20
23.01.0 I , 2.5
Comprehensive Plan and Text
amendments incorporating
language from DLCD's 2014
Model Flood Ordinance and
Establishing a purpose
statement for the Flood Plain
Zone.
5
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20 I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. I LEGISLATIVE HISTORY
2019-019
12-1 1-19/ 12-1 1-19
23.01.01,
2.5
Comprehensive Plan and Text
amendments to provide
procedures related to the
division of certain split zoned
properties containing Flood
Plain zoning and involving a
former or piped irrigation
canal.
2020-001
12-1 1-19/ 12-1 1-19
23.01.01,
2.5
Comprehensive Plan and Text
amendments to provide
procedures related to the
division of certain split zoned
properties containing Flood
Plain zoning and involving a
former or piped irrigation
canal.
2020-002
2-26-20/5-26-20
23.01.01,
4.2,
5.2
Comprehensive Plan Map
Amendment to adjust the
Redmond Urban Growth
Boundary through an equal
exchange of land to/from the
Redmond UGB. The exchange
property is being offered to
better achieve land needs that
were detailed in the 2012 SB
1544 by providing more
development ready land
within the Redmond UGB.
The ordinance also amends
the Comprehensive Plan
designation of Urban Area
Reserve for those lands
leaving the UGB.
2020-003
02-26-20/05-26-20
23.01.01,
5.10
Comprehensive Plan
Amendment with exception
to Statewide Planning Goal 11
(Public Facilities and Services)
to allow sewer on rural lands
to serve the City of Bend
Outback Water Facility.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20 I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
6
2020-008
06-24-20/09-22-20
23.01.010, Appendix C
Comprehensive Plan
Transportation System Plan
Amendment to add
roundabouts at US 20/Cook-
O.B. Riley and US 20/Old
Bend -Redmond Hwy
intersections; amend Tables
5.3.T I and 5.3.T2 and amend
TSP text.
2020-007
07-29-20/10-27-20
23.01.010, 2.6
Housekeeping Amendments
correcting references to two
Sage Grouse ordinances.
2020-006
08-12-20/ 1 1-10-20
23.01.01, 2.1 1, 5.9
Comprehensive Plan and Text
amendments to update the
County's Resource List and
Historic Preservation
Ordinance to comply with the
State Historic Preservation
Rule.
2020-009
08-19-20/ 1 1-17-20
23.01.010, Appendix C
Comprehensive Plan
Transportation System Plan
Amendment to add reference
to J turns on US 97 raised
median between Bend and
Redmond; delete language
about disconnecting
Vandevert Road from US 97.
2020-0 13
08-26-20/ 1 I /24/20
23.01.01, 5.8
Comprehensive Plan Text
And Map Designation for
Certain Properties from
Surface Mine (SM) and
Agriculture (AG) To Rural
Residential Exception Area
(RREA) and Remove Surface
Mining Site 461 from the
County's Goal 5 Inventory of
Significant Mineral and
Aggregate Resource Sites.
2021-002
01-27-21 /04-27-21
23.01.0 I
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) To Rural Industrial (RI)
7
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20 I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5. 12 LEGISLATIVE HISTORY
2021-005
06-16-21/06-16-21
23.01.01, 4.2
Comprehensive Plan Map
Amendment Designation for
Certain Property from
Agriculture (AG) To
Redmond Urban Growth
Area (RUGA) and text
amendment
2021-008
06-30-21/09-28-21
23.01.01
Comprehensive Plan Map
Amendment Designation for
Certain Property Adding
Redmond Urban Growth
Area (RUGA) and Fixing
Scrivener's Error in Ord.
2020-022
2022-001
04-13-22/07-12-22
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
2022-003
04-20-22/07-19-22
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
2022-006
06-22-22/08- 19-22
23.01.010
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Rural
Residential Exception Area
(RREA) to Bend Urban
Growth Area
2022-01 I
07-27-22/ I 0-25-22
(superseded by
23.01.010
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) To Rural Industrial (RI)
Ord. 2023-015)
2022-013
12-14-22/03-14-23
23.01.010
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
DESCHUTES COUNTY COMPREHENSIVE PLAN - 20 I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
8
2023-00 I
03-01-23/05-30-23
23.01.010, 5.9
Housekeeping Amendments
correcting the location for the
Lynch and Roberts Store
Advertisement, a designated
Cultural and Historic
Resource
2023-007
04-26-23/6-25-23
23.01.010
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
2023-010
06-21-23/9-17-23
23.01.010
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
2023-018
08-30-23/ 1 1-29-23
23.01.010
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
2023-015
9- 13-23/ 12- 12-23
23.0 1.0 i 0
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
(AG) to Rural Industrial (RI)
9 DESCHUTES COUNTY COMPREHENSIVE PLAN - 201 1
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
Exhibit "F" - Ordinance 2022-011
BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FILE NUMBERS: 247-21-0000881-PA/882-ZC
APPLICANT: LBNW LLC
c/o Jake Hermeling
65315 Hwy 97
Bend, OR 97701
OWNERS:
Taxlots 1612230000305 ("Taxlot 305") & 1612230000500 ("Taxlot 500")
LBNW LLC
65314 Hwy 97
Bend, OR 97701
Taxlot 1612230000301 ("Taxlot 301")
Dwight E. & Marilee R. Johnson
18550 Walton Road
Bend, OR 97701
APPLICANT'S Ken Katzaroff
ATTORNEY: D. Adam Smith
Schwabe, Williamson & Wyatt, P.C.
360 SW Bond Street, Suite 500
Bend, OR 97702
STAFF PLANNER: Tarik Rawlings, Associate Planner
tarik.rawlings@deschutes.org, 541-317-3148
REQUEST:
Applicant requests approval of a Comprehensive Plan amendment to
change the designation of the properties from Agricultural (AG) to
Rural Industrial (RI) and a corresponding zoning map amendment to
change the zoning of the properties from Exclusive Farm Use -
Tumalo/Redmond/Bend subzone (EFU-TRB) to Rural Industrial (RI)
LOCATION: Taxlot 305 (3.00 acres) - 65301 Hwy 97, Bend, OR 97701
Taxlot 301 (15.06 acres) - 65305 Hwy 97, Bend, OR 97701
Taxlot 500 (1.06 acres) - 65315 Hwy 97, Bend, OR 97701
1. FINDINGS OF FACT:
Exhibit F to Ordinance 2022-011 1
File Nos. 247-21-0000881-PA/882-ZC
A. Incorporated Findings of Fact: The Findings of Fact from the Hearings Officer's
decision and recommendation dated July 12, 2022 and adopted as Exhibit G of this
ordinance (cited herein as "Hearings Officer Decision"), is hereby incorporated as
part of this decision, except to the extent said findings are inconsistent with the
supplemental findings and conclusions of law herein, and except as modified below.
The Board further adopts as its own all Hearings Officer interpretations of the
Deschutes County Code ("DCC") and Deschutes County Comprehensive Plan
("DCCP"), except to the extent said interpretations are inconsistent with the Board's
interpretations set forth herein, and except as modified below. The Board corrects
and modifies the Hearings Officer Decision as follows:
1. Amend the enumerated "Request" on page 1 as follows (deletions struck through;
additions underlined):
"The applicant requests approval of a Comprehensive Plan Amendment to
change the designation of the property from Agricultural (AG) to Rural
Residential Exception Area (RREA) Rural Industrial Area (RIA). The applicant
also requests approval of a corresponding Zone Change to rezone the
property from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10)
Rural Industrial (RI). The applicant requests approval of the applications
without the necessity for a Statewide Planning Goal 3 and/or a Goal 14
Exception, but includes an application for a Goal 14 Exception in the
alternative, if determined to be necessary for approval of the requested
PAPA and Zone Change"
B. Procedural History: Deschutes County's land use Hearings Officer conducted the
initial public hearing regarding the LBNW LLC comprehensive plan amendment /
zone change application on April 26, 2022. At the conclusion of the hearing, the
Hearings Officer closed the hearing for oral testimony but left the written record
open until June 7, 2022. On May 19, 2022, the Hearings Officer issued an order
extending the written record period until June 14, 2022. On July 12, 2022, the
Hearings Officer issued a written decision recommending approval of the
applications by the Deschutes County Board of County Commissioners ("County
Commissioners" or "Board").
The Board conducted a de novo land use hearing on September 7, 2022, at the
conclusion of which the Board closed the hearing for both oral and written
testimony. The Board deliberated and a majority of the commissioners voted to
approve the applications on September 28, 2022.
C. Deschutes County Land Use Regulations: The DCCP and Title 18 of the DCC were
acknowledged by the Land Conservation and Development Commission ("LCDC") as
Exhibit F to Ordinance 2022-011 2
File Nos. 247-21-0000881-PA/882-ZC
being in compliance with every statewide planning goal, including Goal 14. The
County amended the DCC and its DCCP in 2002 (Ordinances 2002-126 and 2002-
127) in response to LCDC's Unincorporated Communities Rule. Those 2002
ordinances ensured that areas zoned Rural Industrial ("RI") and Rural Commercial
("RC") "remain rural" by "allow[ing] fewer uses and smaller industrial structures * *
*." Central Oregon LandWatch v. Deschutes County, 75 Or LUBA 253, 257, aff'd, 298 Or
App 375, 449 P3d 534 (2019). LCDC acknowledged those 2002 ordinances as
compliant with every statewide planning goal, including Goal 14.
In 2018, the County amended the DCCP (Ordinance 2018-008) to allow the RI
designation and zoning to be applied to land outside of existing exception areas.
On appeal, the Land Use Board of Appeals ("LUBA") upheld that 2018 ordinance,
finding - in part - that the appellant's argument that the County's RI zone
regulations violated Goal 14 by allowing urban uses on rural lands was an
impermissible collateral attack on acknowledged land use regulations. Id. at 260-61.
LCDC acknowledged that 2018 ordinance as compliant with every statewide
planning goal, including Goal 14.
II. ADDITIONAL FINDINGS AND CONCLUSIONS OF LAW:
The Board of County Commissioners approves the requested plan designations and zone
change applications and provides the following supplemental findings and conclusions of
law, organized in the same manner as the "Board Deliberation Matrix" presented by County
staff during the September 28, 2022 deliberations.
A. Goal 14 and the Shaffer Factors; Board Deliberation Matrix Issues 1 and 2.
Opponents Central Oregon LandWatch ("COLW") and 1000 Friends of Oregon ("1000
Friends") argued that the subject applications could not be approved without an exception
to Goal 14. The Hearings Officer disagreed, concluding that the applications complied with
Goal 14 without an exception. The Board agrees with the Hearings Officer, and adopts the
Hearings Officer's findings on this issue as our own. The Board further adopts the
following supplemental findings to clarify two persistent issues that arose in these
proceedings.
The RI Zone Does Not Allow Urban Uses On Rural Lands
First, this Board already conclusively determined in the findings supporting the adoption of
Ordinance No 2021-002 that the County's RI zone does not allow urban uses on rural land.
That determination was predicated on six findings which were first recommended by the
Hearings Officer and then adopted by this Board as part of the aforementioned ordinance.
Although remanded to allow the Board to adopt additional findings on a separate (albeit
related) matter discussed below, the six aforementioned findings demonstrating that the RI
Exhibit F to Ordinance 2022-011 3
File Nos. 247-21-0000881-PA/882-ZC
zone does not allow urban uses on rural land were reviewed by both LUBA and the Court
of Appeals. Central Oregon LandWatch v. Deschutes County, _Or LUBA_ (LUBA No 2021-028)
("Acetil, aff'd, 315 Or App 673, 501 P3d 1121 (2021). For its part, LUBA summarized and
described those six findings by noting that "the county determined that even the most
intensive industrial use that could be approved on the subject property under the RI
regulations and use limitation would not constitute an urban use." Id. (slip op at *11). The
Hearings Officer in this matter again repeated those six findings, concluding that they were
"not constrained to the facts and circumstances at issue in the Aceti application" meaning
that those "findings apply universally to any application submitted relying on the County's
DCC and DCCP RI provisions." See Hearing Officer Decision, pg 42. For ease of reference,
those six findings are repeated herein:
"First, LUBA has rejected the argument that DCC 18.100.010 allows urban uses as
constituting an impermissible collateral attack on an acknowledged land use regulation.
[Central Oregon LandWatch v. Deschutes County, 79 Or LUBA 253, aff'd, 298 Or App
37s,449 P3d 534 (2019)].
"Second, DCC Chapter 18.100 implements DCCP Policies 3.4.9 and 3.4.23, which together
direct land use regulations for the Rural Commercial and Rural Industrial zones to 'allow
uses less intense than those allowed in unincorporated communities as defined by
Oregon Administrative Rule 660-022 or its successor,' to 'assure that urban uses are not
permitted on rural industrial lands.' The BOCC adopted this finding in support of
Ordinance 2018-126, which was appealed and sustained by LUBA and the Court of
Appeals.
"Third, as the BOCC found in adopting Ordinance 2018-126, which was appealed and
sustained by LUBA and the Court of Appeals, the application of DCC Title 18 to any
development proposed on Rural Commercial or Rural Industrial designated land will
ensure that the development approved is consistent with the requirements set forth in
DCCP Policies 3.4.12 and 3.4.27 do not adversely affect surrounding area agricultural or
forest land, or the development policies limiting building size (DCCP Policies 3.4.14 and
3.4.28), sewers (DCCP Policies 3.4.18 and3.4.31) and water (DCCP Policies 3.4.19 and
3.4.32) intended to limit the scope and intensity of development on rural land.
"Fourth, DCCP Policy 3.4.28 includes a direction that, for lands designated and zoned RI,
new industrial uses shall be limited to a maximum floor area of 7,500 square feet per use
within a building, except for the primary processing of raw materials produced in rural
area, for which there is no floor area per use limitation.
"Fifth, DCCP Policy 3.4.31 includes a direction that, for lands designated and zoned RI,
residential and industrial uses shall be served by DEQ approved on -site sewage disposal
systems.
Exhibit F to Ordinance 2022-011 4
File Nos. 247-21-0000881-PA/882-ZC
"Sixth, DCCP Policy 3.4.32 includes a direction that, for lands designated and zoned RI,
residential and industrial uses shall be served by on -site wells or public water systems."
Neither COLW nor 1000 Friends provided argument in these proceedings that directly
responded to the six aforementioned findings or otherwise presented any argument that
gives this Board pause when it comes to re -adopting those same findings. Accordingly, this
Board follows suit with the Hearings Officer and again adopts the six aforementioned
findings as our own, conclusively demonstrating that the RI zone does not allow urban uses
on rural lands.
In the interest of consistency, we also take note that this Board reached a similar
conclusion when considering the aforementioned Aceti application on remand. Those
findings, adopted as Exhibit F to Ordinance No 2022-010 state the following:
"* * * the Board of County Commissioners now expressly finds that the policies and
provisions of the DCCP and DCC are independently sufficient to both demonstrate
that post -acknowledgment plan amendments that apply the Rural Industrial (RI)
plan designation and zoning to rural land are consistent with Goal 14 and that uses
and development permitted pursuant to those acknowledged provisions constitute
rural uses, do not constitute urban uses, and maintain the land as rural land. Given
that finding, any further analysis under Shaffer is redundant and precautionary
only."
Pursuant to ORS 40.090(7), the Board takes judicial notice of Ordinance No 2022-010, and
incorporates by reference herein the findings adopted as Exhibit F in that matter.
The Shaffer Factors Are Inapplicable
Second, the Board finds that the "Shaffer factors" are not relevant to these proceedings.
See Shaffer v. Jackson County, 17 Or LUBA 922 (1989). LUBA explained the "Shaffer factors"
as follows: "whether a residential, commercial, industrial or other type of use is 'urban' or
'rural' requires a case by case determination, based on relevant factors identified in various
opinions by [[LUBA]] and the courts" Aceti (slip op at *14) (quoting Shaffer, 17 Or LUBA at
946). Notably, COLW and 1000 Friends disagreed in these proceedings on the necessity of
utilizing the Shaffer factors to determine if Goal 14 was implicated. Specifically, COLW's
April 26, 2022 submittal argued that the County was required to use the Shaffer factors to
determine that "all of the allowed uses in the County's RI zone are rural." But 1000 Friends'
April 26, 2022 submittal argued that the "Shaffer factors are not appropriate * * * because
the eventual use of the property is uncertain, making it impossible to determine whether
the Shaffer factors are satisfied."1
1 On the narrow issue of the Shaffer factors' applicability, the Hearings Officer generally
agreed with 1000 Friends argument. See Hearings Officer Recommendation, pg 39.
Exhibit F to Ordinance 2022-011 5
File Nos. 247-21-0000881-PA/882-ZC
Both COLW and 1000 Friends' arguments in these proceedings neglect LUBA's recent Aceti
decision. Responding to 1000 Friends' view of the Shaffer factors, LUBA held that "[w]hile it
may be more difficult for [the Aceti applicant] to demonstrate that all of the uses that RI
zoning authorized on the subject property are not urban uses, petitioner * * * cited no
authority that require[d] [the Aceti applicant] to propose specific industrial uses before the
county can determine whether the plan designation or zone change would violate Goal 14."
Aceti (slip op at *12). Responding to COLW's view of the Shaffer factors, LUBA held that the
Aceti applicant did not need to analyze all of the RI uses because "the county determined
that even the most intensive industrial use that could be approved on [that] subject
property under the RI regulations and use limitation would not constitute an urban use."
Id. (slip op at *11).
As understood by this Board, LUBA's two aforementioned holdings suggest that the Shaffer
factors were not necessarily diapositive in the recent Aceti matter. Further bolstering that
point of view is LUBA repeatedly describing in the Aceti matter that applying the Shaffer
factors was a "belt -and -suspenders approach in response to petitioner's Goal 14 challenge."
Id. (slip op at *13). LUBA remanded the Aceti matter back to the County to allow this Board
to further bolster that Shaffer analysis.
Consistent with Board findings in the Aceti remand decision (i.e. Ordinance No 2022-010
discussed above), this Board finds that Applicant herein was not required to apply the
Shaffer factors in this case or otherwise conduct a Shaffer analysis because the County
already conclusively determined in past proceedings that the RI zone does not allow urban
uses on rural land. This Board further finds that any argument that suggests that RI zone
does allow urban uses on rural lands is inconsistent with Board findings supporting the
remanded Ordinance No 2021-002 (original Aceti decision), the recent Ordinance No 2022-
010 (remanded Aceti decision), and the findings herein, and is also an inappropriate
collateral attack on the acknowledged 2002 and 2018 amendments originally implementing
the RI zone. Last, this Board finds that the analysis of the Shaffer factors in the Aceti
remand proceedings, and any findings issued in Ordinance No 2022-010 regarding Shaffer,
were in direct response to the facts and circumstances at issue in that matter and were
thereby not intended to set precedent for future applications of the RI zone.
B. Goal 5 Compliance; Board Deliberation Matrix Issue 3
COLW initially argued in its May 31, 2022 submittal that the subject application violates
Goal 5 because the map amendment / zone change will introduce new "conflicting uses" -
i.e. those uses allowed in the RI zone - on properties governed by the County's Landscape
Management Combining Zone. The Landscape Management Combining Zone was adopted
as part of the County's Goal 5 program to protect scenic resources in Deschutes County.
COLW's May 31 submittal included as an attachment a copy of Ordinance No 92-05 initially
codifying the County's Landscape Management Combining Zone as part of DCC Chapter
Exhibit F to Ordinance 2022-011 6
File Nos. 247-21-0000881-PA/882-ZC
18.84. COLW renewed its Goal 5 argument in a September 7, 2022 letter provided to this
Board (cited herein as "COLW Sep 7 Letter").
Applicant responded to COLW's argument with a record submittal dated June 7, 2022, and
in its final legal argument before the Hearings Officer, dated June 14, 2022. Therein,
Applicant argued that the uses allowed by the RI zone are not new "conflicting uses"
because the County's original "economic, social, environmental, and energy" ("ESEE")
analysis adopted as part of Ordinance No 92-05 specifically considered all "Development
within the one -quarter mile overlay zone which would excessively interfere with the scenic
or natural appearance of the landscape as seen from the road or alteration of the existing
landscape by removal of vegetative cover." Stated simply, Applicant argued that uses
allowed by the RI zone were not new conflicting uses because they were implicitly already
considered by Ordinance No 92-05 as uses that could "excessively interfere with the scenic
or natural appearance of the landscape as seen from the road."
The Hearings Officer agreed with Applicant's argument and added findings noting that "the
proposed plan amendment and zone change does not remove the subject property from
the [Landscape Management Combining Zone] and thus does not change or diminish the
protection afforded to Goal 5 resources on the property, specifically the [Landscape
Management] designations of lands within % mile from the centerline of Highway 97."2 The
Landscape Management Combing Zone will still overlay portions of the subject properties
despite changes to the applicable base zoning. Accordingly, the RI base zone would not
alter the requirement pursuant to DCC 18.84.050(A) that "any new structure or substantial
exterior alteration of a structure requiring a building permit or an agricultural structure
within [the Landscape Management Combining Zone] shall obtain site plan approval in
accordance with DCC 18.84 prior to construction."
The Board agrees with the arguments and analysis set forth by both Applicant and the
Hearings Officer, and thereby adopts and incorporates those arguments as our findings.
C. Transportation Impacts; Board Deliberation Matrix Issue 4.
COLW objects that a "trip cap," first proposed by Applicant and then imposed by the
Hearings Officer, will not adequately limit the traffic entering and exiting the subject
property. See COLW Sep 7 Letter, pg 10. Citing both Goal 12 (as implemented by OAR 660-
012-0060) and DCC 18.136.020(C) (requiring the map amendment / zone change to be in
the "public interest"), the main thrust of this traffic argument stems from COLW's assertion
that "[t]he record shows that a 'trip cap' will be inadequate to prevent significant effects to
an existing transportation facility." See COLW Sep 7 Letter, pg 10. The Board agrees with
2 247-21-000881-PA, 882-ZC Hearings Officer Recommendation pg. 83
Exhibit F to Ordinance 2022-011 7
File Nos. 247-21-0000881-PA/882-ZC
COLW that this issue requires an evaluation of the substantial evidence in the record. But
the Board disagrees that the record in this case supports COLW's conclusion.
The record shows that three separate traffic experts were all involved with the formulation
of the trip cap and ultimately concurred with its utilization in this case. As noted by the
Hearings Officer, those experts included the applicant's own traffic engineer, Ferguson &
Associates, the County's own Senior Transportation Planner, and traffic engineers with the
Oregon Department of Transportation. See Hearings Officer Decision, pgs 74-77. The
Hearings Officer further explained that COLW's argument suggesting that neither County
staff nor ODOT supported the trip cap, or that the trip cap will be "unenforceable," were
predicated on earlier comments in the record and failed to account for updated comments
from the aforementioned experts. Id. at 77. Last, the Hearings Officer summarized COLW's
traffic arguments, concluding that "[n]ot only did COLW misread comments provided by
ODOT and County staff, it presented no evidence or expert testimony to contradict the
evidence included in the record by the Applicant regarding the [Transportation Planning
Rule.)" Id. at 78.
Following the Hearings Officer proceedings, COLW renewed its traffic arguments relating to
Goal 12 and DCC 18.136.020(C) but failed to provide any evidence or expert testimony to
support its assertions, instead relying entirely on statements submitted by its "Staff
Attorney and Rural Lands Program Manager." Following suit with the Hearings Officer, the
Board accordingly defers to the expert testimony provided by Applicant's engineer, County
staff, and ODOT and finds that the substantial evidence in the record clearly supports that
imposing a trip cap will address any lingering concerns stemming from Goal 12, OAR 660-
012-0060 implementing Goal 12, and/or DCC 18.136.020(C).
D. Goal 3 Compliance and Order 1 Soil Survey Validity; Board Deliberation Matrix
Issue 5.
COLW raised numerous arguments directly or indirectly invoking Goal 3, each of which are
addressed below.
Legal Challenge:
COLW's Goal 3 legal challenge can be easily dismissed. This Board has repeatedly found
that an applicant can rely on a site -specifies soil survey when applying for a map
amendment / zone change. That practice is supported by state statutes (See, e.g. ORS
215.211 (1) and (5)), state rules (See OAR 660-033-0030(5) and 660-033-0045), and case law
(See, e.g., Central Oregon LandWatch v. Deschutes County, 74 Or LUBA 156 (2016)). COLW's
September 7 letter conceded that the aforementioned Central Oregon LandWatch v.
Deschutes County decision stands in direct opposition to its legal position asserted before
this Board, arguing that the aforementioned case "was incorrectly decided and should be
Exhibit F to Ordinance 2022-011 8
File Nos. 247-21-0000881-PA/882-ZC
overturned." See COLW Sep 7 Letter, pg 3. The County is not in a position to "overturn"
LUBA. The Board's findings and conclusions herein follow applicable law.
Substantial Evidence Challenge:
COLW's substantial evidence argument with regard to Goal 3 raised in its September 7
letter is an entirely new argument not addressed by the Hearings Officer and thereby
requiring more substantive findings from this Board. However, COLW's new Goal 3
argument is similar to its Goal 12 argument discussed above in that COLW failed to provide
any expert testimony to support either argument. Enabling "a county to make a better
determination of whether land qualifies as agricultural land," ORS 215.211(1) specifically
allowed evidence to be provided into the record for these proceedings consisting of "more
detailed soils information than that contained in the Web Soil Survey operated by the
United States Natural Resources Conservation Service." However, ORS 215.211(1)(a)
further provides that such evidence must be prepared by a "professional soil classifier"
"certified by and in good standing with the Soil Science Society of America." See, also OAR
660-033-0045(1) and (2). The record demonstrates that Applicant's soil expert, Gary A.
Kitzrow, possess the qualifications required by ORS 215.211 and OAR 660-033-0045(1) and
(2). The record does not include similar evidence demonstrating that COLW's staff member
who provided contrary soil testimony before this Board likewise possesses the requisite
qualifications as required by ORS 215.211(1)(a) and OAR 660-033-0045(1) and (2).
As COLW's staff member was not qualified to provide such testimony, the Board can likely
entirely disregard COLW's September 7 letter attempting to discredit Applicant's Order 1
Soil Surveys. The Board nevertheless still examined that testimony and finds it
unpersuasive. Applicant's expert's Order 1 Soil Studies show that 53.1% of the 15.06 acre
Taxiot 301, 87.7% of the 3.00 acre Taxiot 305, and 87.7% of the 1.06 acre Taxiot 500 consist
of generally unsuitable soils. COLW challenges the methodology utilized to calculate those
percentages, arguing that the acreage under a canal crossing two of the three subject
properties should be excluded because including the canal acreage "artificially increased
the denominator in [the Order 1 Soils studies] calculation of Class I -VI soils." See COLW Sep
7 Letter, pg 3. Similarly, COLW further argues that Applicant's "hired soil scientist also
improperly exclude[d] land underneath certain developed portions of the subject
property." Id. page 4. Last, COLW argues that the entirety of the acreage under the canal
and some of the developed acreage should instead be counted as "agricultural land"
because those uses fall within the "farm uses" definition pursuant to ORS 215.203(2)(b)(F).
The Board finds COLW's arguments unpersuasive for two primary reasons. First, COLW's
arguments are internally inconsistent. If understanding the "denominator" to represent
the total acreage of a property and the numerator to represent the acreage of generally
unsuitable soil on that property, then deducting the acreage under the canal and the
developed portions of the properties from the "denominator" as initially asserted by COLW
suggests that said acreage should be ignored in its entirety and not play any role in
determining the percentage of generally unsuitable soil on each property. For the
Exhibit F to Ordinance 2022-011 9
File Nos. 247-21-0000881-PA/882-ZC
calculation to align with COLW's argument, the canal and developed acreage would need to
be deducted from both the denominator and the numerator because deducting said
acreage from only the denominator actually increases the resulting percentage of
"generally unsuitable soil."
Second, the Board presumes that perhaps COLW intended to advocate that the canal and
developed acreage should be deducted instead from the "numerator" if calculating the
percent of generally unsuitable soil. That suggestion would be consistent with the rest of
COLW's September 7 testimony wherein COLW argued that both the canal and developed
acreage should be treated as "agricultural land" based on their current usage of that
acreage. The Board finds that COLW's argument is not supported by state rules requiring
Applicant's Order 1 Soil Surveys to analyze the "land," not the current uses of the subject
properties. OAR 660-033-0030(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.")
Stated simply, COLW's argument that the canal and developed acreage should be ignored
in its entirety and deducted from the "denominator" violates OAR 660-033-0030(2) because
said acreage is clearly still "land within the lot or parcel being inventoried." Similarly,
COLW's argument that the canal and developed acreage should be considered "agricultural
land" focuses on the current usage of that acreage rather than the "land" itself, again
violating OAR 660-033-0030(2). The current usage of the canal and developed acreage are
certainly relevant to the broader determination if the subject properties are "suitable for
farm use." On that point, the Board specifically agrees with and incorporates by reference
the Hearings Officer's analysis of those "factors beyond the mere identification of scientific
soil classifications" referenced by OAR 660-033-0030(2). See Hearings Officer Decision, pgs
26-38. Returning to the actual "scientific soil classification," COLW's reliance on those other
factors to try and undermine Applicant's Order 1 Soils Surveys is not persuasive to the
Board.
As the only party to offer testimony from a qualified expert, the substantial evidence in the
record favors the Applicant. But the Board is nevertheless further persuaded by the fact
that the Department of Land Conservation and Development ("DLCD") performed a
"completeness check" on all three Order 1 Soil Surveys in this case pursuant to OAR 660-
033-0045(6)(a). Each Order 1 Soil Survey contains the same DLCD certification confirming
that the "soils assessment is complete and consistent with reporting requirements for
agricultural soils capability." OAR 660-033-0045(4)(b) further requires "[a] soils assessment
that is soundly and scientifically based and that meets reporting requirements as
established by [DLCD]." If the Order 1 Soil Surveys in this case were not "soundly and
scientifically based" - which is the main thrust of COLW's arguments - the Board trusts that
DCLD's certification process would have called that issue to our attention. DLCD did not do
Exhibit F to Ordinance 2022-011 10
File Nos. 247-21-0000881-PA/882-ZC
so, and it is reasonable to rely upon Applicant's Order 1 Soil Survey and DLCD's acceptance
of that survey.
Finally, the Board is persuaded by testimony offered by Kitzrow, Applicant's expert, during
the September 7, 2022 public hearing. Responding directly to COLW's September 7 written
and oral testimony, Kitzrow explained why the acreage labelled as "impact areas" or
"infrastructure" in his Order 1 Surveys were so labelled. Specifically, Kitzrow testified that
he classified that acreage as something other than Class I -VI soils because the
rehabilitation of those previously developed (or still developed) areas was not practical or
economical. For example, the Order 1 Soils Surveys for Taxlot 305 more fully explains that
past development of the subject property in essence destroyed the minimal amounts of
original, native soil. When it comes to the canal acreage on two of the three subject
properties, the development of the canal decades ago impacted any potential Class I -VI
soils within that acreage in the same manner. The Board notes that pursuant to the
"Agricultural Land" definition in OAR 660-033-0020(1)(a)(A), Kitzrow's charge was specifically
to identify if the properties contained "predominantly Class I -VI soils." Rather than fixating
on the obviously impacted areas, Kitrow's focus was accordingly on determining the
maximum extent of the Class I -VI soils remaining on the properties. That is precisely what
Kitzrow did as evidenced by that fact that the majority of the 22 test pits spread across the
19.12 total acres were in areas of the properties that Kitrow's initial assessment suggested
the desired soils would be contained. The Board finds Mr. Kitzrow is a competent expert
and has no reason to doubt the conclusions contained in each of the Order 1 Soils Surveys.
Consistent with those Order 1 Soil Surveys, the Board finds that only 46.9% of Taxlot 301,
18.7% of Taxlot 305, and 12.3% of Taxlot 500 are comprised of Class I -VI soils. The Board
further finds that the soil on these three properties are uniquely poor such that even with
supplemental irrigation water, the soils on all three properties are predominantly Class VII
and VIII.
Miscellaneous Arguments:
In addition to its Goal 3 legal challenge and substantial evidence argument, COLW raised
several other arguments, each of which were not persuasive and thereby can be addressed
summarily.
The Hearing Officer Decision, (pg 38), set forth detailed findings rejecting COLW's argument
that the County's definition of "agricultural use" in DCC 18.04.030 is intended to be more
stringent than case law and the state's definition of agricultural land in OAR 660-033-
0020(1)(a) because the County's "agricultural use" definition includes the term "whether for
profit or not." COLW renewed this argument in its September 7 letter. The Board rejects
this argument for the same reasons as set forth in the Hearings Officer Decision and notes
that DCC 18.04.030 includes a definition of "agricultural land" which is entirely consistent
with the state definition of the same term. The Board further notes that the term
"agricultural use" is purposely and specifically used throughout the DCC, for example (but
Exhibit F to Ordinance 2022-011 11
File Nos. 247-21-0000881-PA/882-ZC
not limited to) DCC 18.16.050(G)(1)(a)(4) with regard to buffering non -farm dwellings, DCC
18.32.020 establishing uses permitted outright in the multiple use agricultural zone, and
DCC 18.52.110(J)(2) imposing limitations on drilling and blasting for surface mining activity.
The Board concurs with the Hearings Officer's interpretations and findings on this issue,
and specifically adopts those interpretations and findings as our own.
COLW also argues that the subject properties are currently in farm use because the canal
on two of the three properties is a "water impoundment." See COLW Sep 7 Letter, pgs 8-9.
COLW's water impoundment argument was presented for the first time to the Board.
However, COLW's new water impoundment theory does not change the Hearings Officer's
findings regarding OAR 660-033-0020(1)(a) (See Hearings Officer Decision, pgs 26-38),
because Central Oregon Irrigation District's Pilot Butte Canal running through Applicant's
properties is not an agricultural activity with the primary purpose of obtaining a profit in
money for Applicant. As previously noted, the Board agrees with and adopts the Hearings
Officer's findings regarding OAR 660-033-0020(1)(a) as the Board's own findings, except to
the extent inconsistence with the findings set forth herein.
Although only indirectly related to Goal 3, the Board notes COLW's new argument in its
September 7 letter regarding DCCP Policy 2.5.24 and water use on the subject properties.
The Board agrees with and incorporates the Hearing Officer's findings on that issue (See
Hearings Officer Decision, pgs 58-59), noting that the proposed map amendment / zone
change application does not yet propose a specific development at this time and that this
policy will be reviewed under any necessary land use process for the site (e.g. conditional
use permit, tentative plat).
Also only indirectly related to Goal 3, the Board notes that COLW renewed in its September
7 letter a persistent argument suggesting that Order 1 Soil Surveys do not constitute a
"change in circumstances" as required for a map amendment / zone change application
pursuant to DCC 18.136.020(D). The Board again agrees with the Hearings Officer's
findings and interpretation on this issue, which specifically note that the Order 1 Soil
Surveys were just one of several enumerated "changes in circumstances." See Hearings
Officer Decisions, pgs 50-54. The Board includes this supplemental finding to address
COLW's assertion that only "changes" to properties subject to a map amendment / zone
change application qualify for consideration under DCC 18.136.020(D). COLW noted that
such changes that would qualify include, for example, "soil and agricultural suitability of the
subject property." COLW Sep 7 Letter, pg 12. The Board first notes that the record does
support that the soil and agricultural suitability of Applicant's properties have likely
changed, as discussed by the Order 1 Soil Surveys. More importantly, the Board disagrees
with COLW's narrow interpretation. Rather than just a change to the subject property, DCC
18.136.020(D) more broadly allows a "change in circumstances." Interpreting that
provision, the Board finds that one such relevant "circumstances" is the accuracy of
information available to the County, a property owner, and the public with regard to quality
of a property's soils. Accordingly, the Board finds that the availability of more accurate
Exhibit F to Ordinance 2022-011 12
File Nos. 247-21-0000881-PA/882-ZC
Order 1 Soils Surveys constitutes a "change in circumstances" pursuant to DCC
18.136.020(D).
E. DCC 22.20.015 Code Enforcement and Land Use; Board Deliberation Matrix
Issue 6.
Although not raised by COLW's September 7 letter submitted to this Board, County staff
asked during the Board's September 28, 2022 deliberations that the Board address COLW's
previous argument regarding DCC 22.20.015. The Board affirms that the Hearings Officer's
findings on this issue (See Hearing Officer Decision, pg 43) are consistent with the Board's
past interpretations of DCC 22.20.015.
IV. DECISION:
Based upon the foregoing Findings of Fact and Conclusions of Law, the Board of County
Commissioners hereby APPROVES Applicant's applications for a DCCP amendment to re-
designate the subject properties from Agriculture (AG) to Rural Industrial Area (RI) and a
corresponding zone map amendment to change the zoning of the properties from
Exclusive Farm Use - Tumalo/Redmond/Bend Subzone (EFU-TRB) to Rural Industrial (RI)
subject to the following conditions of approval:
1. The maximum development on the three subject parcels shall be limited to produce
no more than 32 trips in the PM peak hour and/or 279 daily trips as determined by
the Institute of Engineers Trip Generation Manual, 11 th Edition. The County may
allow development intensity beyond these maximum number of vehicle trips only if
the applicant submits to the County a traffic impact analysis that demonstrates that
the proposed intensification of use would be consistent with the Transportation
Planning Rule and the Deschutes County Code.
Dated this day of , 2022
Exhibit F to Ordinance 2022-011 13
File Nos. 247-21-0000881-PA/882-ZC
BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
FINDINGS OF FACT AND CONCLUSIONS OF LAW ON REMAND
FILE NUMBERS: 247-21-000881-PA, 882-ZC (247-23-000398-A)
APPLICANT/ LBNW LLC
OWNER: 65315 Hwy 97
Bend, OR 97701
APPLICANT'S D. Adam Smith
ATTORNEY: J. Kenneth Katzaroff
Schwabe, Williamson & Wyatt, P.C.
360 SW Bond St, Suite #500
Bend, OR 97702
STAFF PLANNER: Tarik Rawlings, Senior Transportation Planner
Anthony Raguine, Principal Planner
REQUEST:
PROPOSAL:
The Applicant requests proceedings on remand from Central Oregon
Landwatch v. Deschutes County, _ Or LUBA _ (LUBA No 2023-008, April
24, 2023) following the Board of County Commissioner's approval of
original application file numbers 247-21-0000881-PA/882-ZC, and
original Ordinance No 2022-011.
Comprehensive Plan Amendment to change the designation of the
properties from Agriculture (AG) to Rural Industrial (RI) and a
corresponding zoning map amendment to change the zoning from
Exclusive Farm Use - Tumalo/Redmond/Bend Subzone (EFU-TRB) to
Rural Industrial Zone (RI).
LOCATION: Taxlot 305 (3.00 acres) - 65301 Hwy 97, Bend, OR 97701
Taxlot 301 (15.06 acres) - 65305 Hwy 97, Bend, OR 97701
Taxlot 500 (1.06 acres) - 65315 Hwy 97, Bend, OR 97701
1. FINDINGS OF FACT:
A. Procedural History: The Deschutes County Board of County Commissioners
("Board") adopted Ordinance No 2022-011, approving the requested Comprehensive
Plan Amendment and Zone Change of Taxlots 305, 301, and 500 (the "Properties") to
Rural Industrial, with the second and final ordinance reading occurring on December
14, 2022. Central Oregon Landwatch ("COLW") appealed Ordinance No 2022-011 to
the Land Use Board of Appeals ("LUBA"). LUBA remanded the decision on April 24,
Exhibit G to Ordinance 2023-015 1
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
2023, denying all of COLW's arguments except for one. See Central Oregon Landwatch
v. Deschutes County, _ Or LUBA _ (LUBA No 2023-008, April 24, 2023) (the "LUBA
Decision"). The Applicant (LBNW LLC) requested in writing on May 17, 2023, that the
Board proceed with remand proceedings pursuant to Oregon Revised Statutes
("ORS") 215.435 and Deschutes County Code ("DCC") Chapter 22.34.
The Board limited the remand proceedings to the issue remanded by LUBA and
permitted new evidence and testimony to address only the remanded issue.
Following public notice, the Board conducted a remand public hearing on June 28,
2023. Prior to the hearing, the Applicant submitted written argument and evidence,
including an initial draft economic, social, environmental, and energy analysis ("Initial
ESEE Analysis") as required by the LUBA Decision. During the hearing, both the
Applicant and COLW provided oral testimony. At the conclusion of all oral testimony
on June 28, 2023, the Board closed the hearing but left the record open until July 5,
2023, for additional written evidence, a rebuttal period ending July 19, 2023, and
Applicant's final argument required to be submitted prior to July 26, 2023.
Both parties submitted materials for the July 5, 2023, written evidence period. Among
other arguments, COLW's July 5 submittal criticized that the Initial ESEE Analysis did
not comply with applicable state rules. Although disagreeing with the necessity of
revising the Initial ESEE Analysis, the Applicant nevertheless requested a one -week
extension to facilitate the preparation of an updated analysis (the "Updated ESEE
Analysis"). The Board granted the Applicant's request for more time and issued an
order (Order No. 2023-031) extending the rebuttal period until July 19, 2023, and
correspondingly extending Applicant's final argument deadline to July 26, 2023. COLW
did not submit rebuttal testimony and instead elected to end its participation in these
proceedings following the July 5 open record deadline. The Applicant, however,
submitted additional argument and evidence in addition to the Updated ESEE
Analysis at the conclusion of the rebuttal period. The Applicant then submitted its
final legal argument on July 26, 2023.
The Board deliberated on August 16, 2023, and voted 2-1 to again approve the
Applicant's land use application. Consistent with the Board's August 16' motion,
County staff prepared the required Ordinance packet, which was approved by the
Board with first reading occurring on August 30, 2023, and second reading occurring
on September 13, 2023.
B. LUBA Decision and Guidance: The LUBA Decision provides the basis for the remand.
The relevant passage from that decision appears on pages 36-37, reproduced in part
as follows:
"We agree with [COLW] that the [Board] misconstrued the applicable law. * *
* The questions presented here are whether the new RI zoning allows uses on
Exhibit G to Ordinance 2023-015 2
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
the subject propert[ies] 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
[Landscape Management Combining Zone] provided the impacted scenic
resources sufficient protection does not change the requirements to apply
Goal 5 to the PAPA for the subject property. * * *
"* * * the 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)."
As understood by this Board, the purpose of LUBA's remand was to provide this Board
the opportunity - as required by applicable state rules - to consider both the
consequences, if any, stemming from the subject land use application as it relates to
the Goal 5 protected scenic views and perform an ESEE analysis to weigh those
consequences before again deciding to approve or deny that application.
C. Incorporated findings. To the extent not in conflict with these findings or the LUBA
Decision, the Board again adopts and incorporates herein the original findings
supporting the County's previous Ordinance 2022-011. Those incorporated findings
specifically include the Board's original findings, "Exhibit 'F' - Ordinance 2022-011,"
included herein as Exhibit "F," and the Hearings Officer's original decision and
recommendation, "Exhibit 'G' to Ord. 2022-011," included herein as Exhibit "H."
ii. CONCLUSIONS OF LAW:
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:
***
(b) The PAPA allows new uses that could be conflicting uses with a
particular significant Goal 5 resource site on an acknowledged resource
list;
FINDING: The Board notes that the initial issue in almost every remand proceeding
is the scope of the remand. This case is no different, requiring the Board to first
resolve several different arguments debated by the parties relating to the scope of
the remand.
Exhibit G to Ordinance 2023-015 3
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
The Board begins its analysis by acknowledging that the LUBA Decision specifically
cited Oregon Administrative Rule ("OAR") 660-023-0250(3) and further determined
that the at -issue post -acknowledgment plan amendment ("PAPA") application will
allow new uses which could conflict with Deschutes County's Goal 5 scenic view
resources. The LUBA Decision therefore requires the Board to "apply Goal 5,"
meaning that the Board must follow the Procedures and Requirements for Complying
with Goal 5 as set forth in OAR Chapter 660, Division 23, as part of again deciding to
approve or deny the subject PAPA ("the Application").
COLW's July 5 record submittal argued that both County staff and the Applicant
"inaccurately described LUBA's remand order as 'narrow."' COLW further asserted
"OAR 660-023-0250(3) requires a broad inquiry into the impacts on inventoried Goal
5 resources of a decision to allow, limit, or prohibit various conflicting uses." To the
extent COLW's "broad inquiry" argument was meant to suggest that the County needs
to do something beyond an ESEE Analysis or that the ESEE Analysis should consider
issues beyond the enumerated economic, social, environmental, and energy
consequences, the Board disagrees. Rather than an ill-defined "broad inquiry," the
Board unanimously finds that applicable rules specifically set forth in OAR Chapter
660, Division 23, shall guide these remand proceedings.
Next, the Board must resolve a related debate between the parties concerning which
provisions within OAR Chapter 660, Division 23, are applicable to these remand
proceedings. The Applicant's initial June 23 record submittal proposed findings
responding only to OAR 660-023-0040 governing the ESEE Decision Process. In
response, COLW's July 5 record submittal cited OAR 660-023-0230(2) and argued that
"[f]or scenic view resources, 'the requirements of OAR 660- 023-0030 through 660-
023-0050 shall apply." COLW further asserted that "LUBA's remand order requires the
County to apply all three of these administrative rules to the subject PAPA."
The Board notes that COLW quoted only a portion of OAR 660-023-0230(2), which
appears in full as follows (emphasis added):
"Local governments are not required to amend acknowledged comprehensive
plans in order to identify scenic views and sites. If local governments decide to
amend acknowledged plans in order to provide or amend inventories of scenic
resources, the requirements of OAR 660-023-0030 through 660-023-0050 shall
apply."
Given the underlined qualifier in the above -quoted rule, the Board questions COLW's
insistence that any PAPA involving a local government's scenic view resources must
address all three cited provisions: OAR 660-023-0030, OAR 660-023-0040, and OAR
660-023-0050. Instead, the Board suggests that complying with all three
aforementioned rules is required only when a PAPA specifically seeks to "amend
Exhibit G to Ordinance 2023-015 4
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
inventories of scenic resources." When it comes to OAR 660-023-0030 governing the
Goal 5 Inventory Process, for example, the rule clearly does not apply in those
circumstances when a local government does not undertake updating or otherwise
redoing a previously completed Goal 5 inventory.
Despite disagreeing with COLW's argument, the Applicant's July 26 final legal
argument nevertheless addressed COLW's concern and recommended that the
Board adopt findings responding to all three state rule provisions. If nothing else, the
Applicant's suggested findings respond to all three provisions to further explain how
and why those provisions (or subparts therein) do not apply to the Board's decision
on remand. The Board agrees with the Applicant's recommendation, and includes
findings below addressing OAR 660-023-0030, OAR 660-023-0040, and OAR 660-023-
0050.
OAR 660-023-0030, Inventory Process
(1) Inventories provide the information necessary to locate and evaluate
resources and develop programs to protect such resources. The purpose
of the inventory process is to compile or update a list of significant Goal
5 resources in a jurisdiction. This rule divides the inventory process into
four steps. However, all four steps are not necessarily applicable,
depending on the type of Goal 5 resource and the scope of a particular
PAPA or periodic review work task. For example, when proceeding under
a quasi-judicial PAPA for a particular site, the initial inventory step in
section (2) of this rule is not applicable in that a local government may
rely on information submitted by applicants and other participants in
the local process. The inventory process may be followed for a single site,
for sites in a particular geographical area, or for the entire jurisdiction or
urban growth boundary (UGB), and a single inventory process may be
followed for multiple resource categories that are being considered
simultaneously. The standard Goal 5 inventory process consists of the
following steps, which are set out in detail in sections (2) through (5) of
this rule and further explained in sections (6) and (7) of this rule:
(a) Collect information about Goal 5 resource sites;
(b) Determine the adequacy of the information;
(c) Determine the significance of resource sites; and
(d) Adopt a list of significant resource sites.
FINDING: As stated within OAR 660-023-0030 (1), this rule's purpose is "to compile or
update a list of significant Goal 5 resources in a jurisdiction." Importantly here, the
inventory process has already been completed. Accordingly, the Board finds that
Section 5.5 of the Deschutes County Comprehensive Plan ("DCCP") entitled Goal 5
Inventory: Open Spaces, Scenic Views and Sites identifies an area extending 1-mile on
either side of the centerline of certain roadways, including Highway 97 between the
Exhibit G to Ordinance 2023-015 5
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
Bend and Redmond Urban Growth Boundaries ("UGBs"), as a Goal 5 scenic view
resource.
As shown on Exhibit B attached to the Applicant's Initial ESEE Analysis, 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 ("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 does not seek to remove the subject Properties from the County's LM Zone,
nor does the Applicant seek to otherwise amend or modify DCCP Section 5.5 or the
LM Zone's governing provisions contained in DCC Chapter 18.84. The subject PAPA
only seeks to change the base zone from EFU to RI on the Properties. In such a case,
the Board finds that OAR 660-023-0030 specifically provides as follows: "when
proceeding under a quasi-judicial PAPA for a particular site, the initial inventory step
in section (2) of this rule is not applicable in that a local government may rely on
information submitted by applicants and other participants in the local process."
The Board further finds that nothing in the LUBA Decision suggests or requires the
County to amend or modify its long-standing Goal 5 scenic view inventories during
these remand proceedings. The Board reiterates the Applicant's comments in its July
26, 2023, record submittal explaining that the LUBA Decision "relied on the County's
existing Goal 5 program to conclude that uses allowed under the RI Zone could be
conflicting uses." If LUBA's remand were to be interpreted as an invitation to the
County to re -do its scenic view inventory, then the County could conceivably conclude
that there are no longer any scenic view resources on the subject Properties that
warrant protection under Goal 5. And, if there are no such scenic view resources, then
clearly the new uses that would be allowed under the County's RI zone would never
"conflict with inventoried Goal 5 resources" because there wwould be no such
identified Goal 5 resources in the first place. Accordingly, the Board's only option if
electing to update its scenic view inventory for the subject Properties would be to
again conclude that there are significant resources deserving Goal 5 protection as any
other decision would be in direct conflict with the LUBA Decision. The Board does not
believe that LUBA intended the County to waste resources going through such a
perfunctory inventory process.
Rather than inviting the County to begin anew by conducting an inventory pursuant
to OAR 660-023-0050, the Board finds that the LUBA Decision relies on the County's
existing Goal 5 scenic view inventory codified in the DCCP, thereby directing the
County to do the same in these remand proceedings. Specifically, the LUBA Decision
states that the subject PAPA"allows new uses that could conflict with inventoried Goal
5 resources" (emphasis added). The LUBA Decision does not direct the County to
conduct a new inventory of Goal 5 scenic view resources and then decide if the uses
allowed under the RI zone could conflict with those newly identified resources. Stated
Exhibit G to Ordinance 2023-015 6
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
simply, the Board understands the LUBA Decision as requiring the County to
complete the ESEE Decision Process set forth in OAR 660-023-0040 (and then
potentially address OAR 660-023-0050) while relying on the County's existing Goal 5
scenic view inventory.'
Accordingly, the majority of the Board finds that the inventory process required by
OAR 660-023-0030 has already been completed; the results of which are set forth in
DCCP Section 5.5. That inventory includes the entirety of two of the subject Properties
and the majority of the third. The Board's subsequent findings issued in this decision
rely on that existing inventory such that OAR 660-023-0030(2) specifically is not
applicable.
(2) Collect information about Goal 5 resource sites: The inventory process
begins with the collection of existing and available information,
including inventories, surveys, and other applicable data about potential
Goal 5 resource sites. If a PAPA or periodic review work task pertains to
certain specified sites, the local government is not required to collect
information regarding other resource sites in the jurisdiction. When
collecting information about potential Goal 5 sites, local governments
shall, at a minimum:
(a) Notify state and federal resource management agencies and
request current resource information; and
(b) Consider other information submitted in the local process.
FINDING: As discussed in the preceding finding, the Board finds that OAR 660-023-
0030(2) does not apply.
(3) Determine the adequacy of the information: In order to conduct the
Goal 5 process, information about each potential site must be adequate.
A local government may determine that the information about a site is
inadequate to complete the Goal 5 process based on the criteria in this
section. This determination shall be clearly indicated in the record of
proceedings. The issue of adequacy may be raised by the department or
objectors, but final determination is made by the commission or the
Land Use Board of Appeals, as provided by law. When local governments
determine that information about a site is inadequate, they shall not
proceed with the Goal 5 process for such sites unless adequate
information is obtained, and they shall not regulate land uses in order to
protect such sites. The information about a particular Goal 5 resource
1 The Board notes that the County's program to achieve the Goal related to its Goal 5 scenic view
inventory is the adopted LM Zone.
Exhibit G to Ordinance 2023-015 7
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
site shall be deemed adequate if it provides the location, quality and
quantity of the resource, as follows:
(a) Information about location shall include a description or map
of the resource area for each site. The information must be
sufficient to determine whether a resource exists on a particular
site. However, a precise location of the resource for a particular
site, such as would be required for building permits, is not
necessary at this stage in the process.
(b) Information on quality shall indicate a resource site's value
relative to other known examples of the same resource. While a
regional comparison is recommended, a comparison with
resource sites within the jurisdiction itself is sufficient unless
there are no other local examples of the resource. Local
governments shall consider any determinations about resource
quality provided in available state or federal inventories.
(c) Information on quantity shall include an estimate of the
relative abundance or scarcity of the resource.
FINDING: As discussed above, the Board relies on the existing inventory of Goal 5
scenic view resources contained in DCCP Section 5.5. The previous Boards of County
Commissioners that initially adopted the County's Goal 5 program and then
subsequently re -adopted that same program several times throughout the past
decades (most recently as part of the County's current 2030 DCCP update), deemed
the information for the inventoried properties adequate. As the current Board is not
seeking to amend that inventory, the Board does not question those previous
determinations and thereby finds that information about the Goal 5 scenic view
resources contained in the DCCP and elsewhere in the record for these proceedings
is adequate.
(4) Determine the significance of resource sites: For sites where
information is adequate, local governments shall determine whether the
site is significant. This determination shall be adequate if based on the
criteria in subsections (a) through (c) of this section, unless challenged
by the department, objectors, or the commission based upon
contradictory information. The determination of significance shall be
based on:
(a) The quality, quantity, and location information;
(b) Supplemental or superseding significance criteria set out in
OAR 660-023- 0090 through 660-023-0230; and
(c) Any additional criteria adopted by the local government,
provided these criteria do not conflict with the requirements of
OAR 660-023-0090 through 660-023-0230.
Exhibit G to Ordinance 2023-015 8
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
FINDING: The Board relies on the existing inventory of Goal 5 scenic view resources
contained in DCCP Section 5.5. Accordingly, the Board does not seek to amend or alter
previous County Commissioners' determinations that the Goal 5 scenic view resources on
the subject Properties are significant.
As discussed above, if the County were to interpret the LUBA Decision as an invitation to
redo the inventory process as part of these proceedings, the resulting decision under this
subpart conceivably could be that there are no longer any significant Goal 5 scenic view
resources on the subject Properties. The Board does discuss in later findings responding to
OAR 660-023-0040 that that Goal 5 scenic view resources on the subject Properties are
diminished when compared to other similarly situated properties within the LM Zone.
However, the Board's finding recognizing those diminished scenic view resources in the
vicinity of the subject Properties should not be interpreted to mean that the Board finds that
there are no longer any Goal 5 scenic view resources, nor does it mean that the Board is
challenging the veracity of the County's past Goal 5 scenic view decisions.
(5) Adopt a list of significant resource sites: When a local government
determines that a particular resource site is significant, the local
government shall include the site on a list of significant Goal 5 resources
adopted as a part of the comprehensive plan or as a land use regulation.
Local governments shall complete the Goal 5 process for all sites
included on the resource list except as provided in OAR 660-023-0200(2)(c)
for historic resources, and OAR 660-023-0220(3) for open space
acquisition areas.
FINDING: The Board relies on the existing inventory of Goal 5 scenic view resources
contained in DCCP Section 5.5, which specifically contains the list of significant resource sites.
(6) Local governments may determine that a particular resource site is
not significant, provided they maintain a record of that determination.
Local governments shall not proceed with the Goal 5 process for such
sites and shall not regulate land uses in order to protect such sites under
Goal 5.
FINDING: The Board relies on the existing inventory of Goal 5 scenic view resources
contained in DCCP Section 5.5. Accordingly, this decision does not determine that any
particular resource site is not significant. As discussed in response to OAR 660-023-0030(4)
above, the Board specifically disavows any suggestion that the findings below discussing the
diminished quality of the Goal 5 scenic view resources on the subject Properties suggest that
there are no significant Goal 5 scenic view resources on the subject Properties.
Exhibit G to Ordinance 2023-015 9
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
(7) Local governments may adopt limited interim protection measures
for those sites that are determined to be significant, provided:
(a) The measures are determined to be necessary because existing
development regulations are inadequate to prevent irrevocable
harm to the resources on the site during the time necessary to
complete the ESEE process and adopt a permanent program to
achieve Goal 5; and
(b) The measures shall remain effective only for 120 days from the
date they are adopted, or until adoption of a program to achieve
Goal 5, whichever occurs first.
FINDING: The Board relies on the existing inventory of Goal 5 scenic view resources
contained in DCCP Section 5.5. Accordingly, the Board does not seek to adopt interim
protection measures. This subsection (7) is inapplicable.
OAR 660-023-0040, ESEE Decision Process
(1) Local governments shall develop a program to achieve Goal 5 for all
significant resource sites based on an analysis of the economic, social,
environmental, and energy (ESEE) consequences that could result from a
decision to allow, limit, or prohibit a conflicting use. This rule describes
four steps to be followed in conducting an ESEE analysis, as set out in
detail in sections (2) through (5) of this rule. Local governments are not
required to follow these steps sequentially, and some steps anticipate a
return to a previous step. However, findings shall demonstrate that
requirements under each of the steps have been met, regardless of the
sequence followed by the local government. The ESEE analysis need not
be lengthy or complex, but should enable reviewers to gain a clear
understanding of the conflicts and the consequences to be expected. The
steps in the standard ESEE process are as follows:
(a) Identify conflicting uses;
(b) Determine the impact area;
(c) Analyze the ESEE consequences; and
(d) Develop a program to achieve Goal 5.
FINDING: Consistent with the above findings, the Board finds that the LUBA Decision already
"identified conflicting uses" in this case, i.e., the first step as set forth in OAR 660-023-
0040(1)(a) and further identified in OAR 660-023-0040(2). The Board unanimously finds that
those "identified conflicting uses" are those uses allowed outright or conditionally under the
RI zone on the subject Properties that would not have otherwise been allowed under the
current EFU zoning. Accordingly, these findings focus on the second, third, and fourth steps
in the ESEE Decision Process as further detailed by OAR 660-023-0040(3) through (5).
Exhibit G to Ordinance 2023-015 10
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
(2) Identify conflicting uses. Local governments shall identify conflicting
uses that exist, or could occur, with regard to significant Goal 5 resource
sites.** *
FINDING: As noted above, the LUBA Decision already identified the conflicting uses in this
case. The Board accepts and agrees with the identification of the conflicting uses as identified
in the LUBA Decision, as those uses allowed outright or conditionally under the RI zone on
the Subject properties that would not have otherwise been allowed under the current EFU
zoning.
(3) Determine the impact area. Local governments shall determine an
impact area for each significant resource site. The impact area shall be
drawn to include only the area in which allowed uses could adversely
affect the identified resource. The impact area defines the geographic
limits within which to conduct an ESEE analysis for the identified
significant resource site.
FINDING: As noted above, the subject PAPA concerns three Properties identified as Tax Lots
1612230000301, 1612230000305, and 1612230000500. The entirety of Tax Lots
1612230000500 and 1612230000305 fall within the existing LM Zone (i.e., the 1/a-mile corridor
extending from the centerline of Highway 97), and the majority of Tax Lot 161223000301
also falls within the LM Zone.
Initially, the Applicant argued that the impact area in this case should be constrained to the
three subject Properties. The Board presumes that the Applicant initially suggested such a
limited impact area because of the second sentence in OAR 660-023-0040(3) stating that that
the impact area should "include only the area in which allowed uses could adversely affect
the identified resources." This case concerns only the new uses allowed on the three subject
Properties under the RI zone, thereby suggesting that the impact area is only those three
subject Properties.
COLW's _July 5 record submittal argued that the Applicant's identified impact area was too
small of a geographical area, with COLW further noting that that the Applicant's proposed
ESEE analysis described "uses outside of this [identified] impact area." More specifically,
COLW argued that the Applicant's ESEE Analysis repeatedly discussed "development further
on the hillside west of the subject Properties [which] already significantly diminishes the
scenic resources viewed from Highway 97 adjacent to the subject properties." Last, COLW
argued that "minimizing the impacts of the conflicting uses on the subject property's Goal 5
scenic view resources based on conditions outside of the identified impact area is also
contrary to OAR 660-023-0040(3), which requires that '[t]he impact area defines the
geographic limits within which to conduct an ESEE analysis for the identified significant
resource site."'
Exhibit G to Ordinance 2023-015 11
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
As understood by the Board, this "impact area" disagreement between the Applicant and
COLW stems from the Applicant focusing on the second sentence set forth in OAR 660-023-
0040(3) and COLW focusing on the third sentence. The Board further notes that it is hard to
reconcile what appears to be contradictory direction provided by those two sentences.
Nevertheless, the Board does not need to resolve that issue presently because the
Applicant's July 19 rebuttal submittal and July 26 final legal argument both proposed an
expanded impact area to address COLW's concerns. Consistent with the Applicant's
aforementioned submittals, the Board unanimously finds that the appropriate impact area
in this case includes "those properties to the west of Highway 97 and within the existing LM
Zone (i.e., within 14-mile of the centerline of Highway 97) between the 61" Street intersection
to the north and the Tumalo Road off ramp to the south."
The Board favors this expanded impact area for three reasons. First, the expanded impact
area corresponds directly to evidence in the record submitted in support of the Expanded
ESEE Analysis. For example, the Applicant's Exhibits 3 and 4 are a video and pictures
documenting the scenic views looking west from an automobile traveling both north and
south on Highway 97 between the 61 st Street intersection and the Tumalo Road off ramp.
Second, the expanded impact area is supported by case law, specifically LandWatch Lane
County v. Lane County, _Or LUBA_ (LUBA No 2019-048, August 9, 2019). LandWatch Lane
County similarly considered a quasi-judicial PAPA for a single property, and LUBA therein
suggested that the impact area should include at least adjacent land with the same or similar
Goal 5 protections.
Third, the expanded impact area addresses COLW's critique that the Initial ESEE Analysis
documents impacts caused by "development further on the hillside west of the subject
Properties * * *." Examining Applicant's Exhibits 2, 3, 4, and 5, it is clear that most of those
developments built on the hillside and in plain view of Highway 97 are within the expanded
impacted area - i.e., within the LM Zone west of Highway 97 between the 61 St Street
intersection and Tumalo Road.
Last, the Applicant's July 26 final legal argument raises two final issues related to the impact
area that deserve further comment from this Board. First, the Applicant argued that the ESEE
process is intended to be iterative, and it was thereby appropriate to expand the impact area
mid -way through the remand proceedings. To support that argument, the Applicant quoted
language in OAR 660-023-004(1) suggesting that "[I]ocal governments are not required to
follow [the ESEE Decision Process] steps sequentially, and some steps anticipate a return to
a previous step." The majority of the Board agrees with the Applicant's argument and finds
that it was appropriate for the Applicant to "return to the previous [impact area] step" after
submitting the Initial ESEE Analysis because the Applicant was responding to COLW's
comments concerning that Initial ESEE Analysis. The Board further notes that the expanded
impact area was submitted concurrently with the Updated ESEE Analysis.
Exhibit G to Ordinance 2023-015 12
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
More directly related to COLW's criticisms of the Initial ESEE Analysis, the Applicant also
acknowledged in its July 26 final legal argument that the Updated ESEE Analysis includes
"'ESEE consequences to properties outside of the formal impact area." The Applicant argued
that including ESEE consequences outside of the impact area was appropriate because of
the differing definitions of the terms "ESEE Consequence" and "Impact Area" contained in
OAR 660-023-0010(2) and (3), respectively. As understood by the Board, the Applicant
distinguished the two aforementioned terms specifically because the ESEE Consequence
definition does not reference the Impact Area definition, nor does the ESEE Consequence
definition include any language suggesting a geographical limit.
The Board agrees with the Applicant's argument, and unanimously finds that it is appropriate
for the Updated ESEE Analysis to document ESEE Consequences that extend beyond the
impact area to the extent necessary to "enable reviewers to gain a clear understanding of
the conflicts and the consequences to be expected." See OAR 660-023-0040(1). To the extent
the Board's understanding of OAR 660-023-0010(2) and (3) is incorrect, the Board further
finds that those ESEE Consequences described in the Updated ESEE Analysis extending
beyond the impact area were not dispositive to the Board's subsequent OAR 660-023-0040(4)
and (5) findings. Accordingly, the Board notes that it would have reached similar conclusions
and issued similar findings responding to OAR 660-023-0040(4) and (5) even if all ESEE
Consequences addressing properties outside of the impact area were struck from the
Update ESEE Analysis.
(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.
FINDING: The Applicant's Initial ESEE Analysis for the Board's consideration was prepared by
Skidmore Consulting, LLC: Land Use Planning & Development Services. (See Applicant Exhibit
1). COLW's July 5 record submittal criticized that the Initial ESEE Analysis went too far in
grouping "similar conflicting uses," thereby violating OAR 660-023-0040(4). In response, the
Applicant submitted the Updated ESEE Analysis, again prepared by Skidmore Consulting,
Exhibit G to Ordinance 2023-015 13
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
LLC: Land Use Planning & Development Services. That Updated ESEE Analysis analyzes all of
the different uses allowed by the RI Zone in a more comprehensive manner. (See Applicant's
Exhibit 6). Accordingly, the Board need not address COLW's arguments regarding the Initial
ESEE Analysis. Instead, the majority of the Board finds that the Updated ESEE Analysis does
not inappropriately group "similar conflicting uses" contrary to OAR 660-023-0040(4) because
the numerous conflicting uses are all analyzed in the Updated ESEE Analysis.
The Board further notes that although separately analyzed in the Updated ESEE Analysis,
many of the described consequences for each of the conflicting uses are still similar. But
those similarly described consequences do not suggest that the Updated ESEE Analysis is
incorrect or otherwise faulty. Instead, those similarly described consequences reflect the
specific Goal 5 resource at issue. On that point, the Board notes that the County's original
ESEE analysis contained in Ordinance 92-052 summarily described the Goal 5 resource at
issue as the "scenic or natural appearance of the landscape as seen from the road or
alteration of existing landscape by removal of vegetative cover." Viewed through that lens,
the similarly described consequences are understandable for even differing conflicting uses
because many of those differing uses allowed under the RI zone may require, for example,
the removal of the same vegetative cover or otherwise will similarly detract from the natural
appearance of the landscape as seen from an automobile traveling on Highway 97.
As understood by the Board, every ESEE analysis is intended to be context specific, and the
Board is "afforded fairly broad discretion in considering potential impacts from allowing or
prohibiting a particular use * **." See Central Oregon LandWatch v. Deschutes County, Or
LUBA _ (LUBA No 202-019, March 22, 2021) (internal citations omitted). Pursuant to OAR
660-023-0040(1), the Board again notes that an "ESEE analysis need not be lengthy or
complex but should enable the reviewers to gain a clear understanding of the conflicts and
the consequences to be expected." In this case, the majority of the Board finds that the
Updated ESEE Analysis provides a "clear understanding of the conflicts and consequences to
be expected" if the RI uses are allowed on the subject Properties.
The majority of the Board further finds that the Updated ESEE Analysis is supported by
substantial evidence in the record, as it was prepared by a land use consultant with specific
expertise and knowledge of Central Oregon. (See Attachment D to the Applicant's Exhibit 1.)
Additionally, both the Applicant and the Applicant's consultant added select evidence to the
record further confirming that consultant's expert opinions and observations. (See
Attachment A to the Applicant's Exhibit 1, Attachment B to the Applicant's Exhibit 1, Exhibits
3, 4, and 5.) In fact, the Board notes that the record contains absolutely no evidence that
contradicts those opinions and observations contained in the Updated ESEE Analysis. The
only evidence in the record not submitted by County staff or the Applicant is COLW's singular
July 5 record submittal which asserts only legal challenges and includes as attachments only
Ordinance 92-052 and select portions of Ordinance PL-20.
Exhibit G to Ordinance 2023-015 14
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
Accordingly, the majority of the Board specifically adopts and incorporates as its own the
Updated ESEE Analysis. That updated ESEE Analysis is further included as part of these
findings, attached as Exhibit I. Last, the Board notes that these findings, including the
Updated ESEE Analysis, will be included by reference in DCC Chapter 23.01 and Section 5.12
of the DCCP.
(5) Develop a program to achieve Goal 5. Local governments shall
determine whether to allow, limit, or prohibit identified conflicting uses
for significant resource sites. This decision shall be based upon and
supported by the ESEE analysis. A decision to prohibit or limit conflicting
uses protects a resource site. A decision to allow some or all conflicting
uses for a particular site may also be consistent with Goal 5, provided it
is supported by the ESEE analysis. One of the following determinations
shall be reached with regard to conflicting uses for a significant resource
site:
(a) A local government may decide that a significant resource site
is of such importance compared to the conflicting uses, and the
ESEE consequences of allowing the conflicting uses are so
detrimental to the resource, that the conflicting uses should be
prohibited.
(b) A local government may decide that both the resource site and
the conflicting uses are important compared to each other, and,
based on the ESEE analysis, the conflicting uses should be allowed
in a limited way that protects the resource site to a desired extent.
(c) A local government may decide that the conflicting use should
be allowed fully, notwithstanding the possible impacts on the
resource site. The ESEE analysis must demonstrate that the
conflicting use is of sufficient importance relative to the resource
site, and must indicate why measures to protect the resource to
some extent should not be provided, as per subsection (b) of this
section.
FINDING: In addition to being "afforded fairly broad discretion" in conducting the ESEE
Analysis pursuant to OAR 660-023-0040(4), state law further provides the Board the same
"broad discretion" when it comes to determining "whether, how, and to what extent a Goal
5 resource will be protected" pursuant to OAR 660-023-0040(5). See Central Oregon LandWatch
v. Deschutes County,_Or LUBA _ (LUBA No 202-019, March 22, 2021) (internal citations
omitted).
The Board notes that the Applicant's recommendation pursuant to OAR 660-023-0040(5) to
allow, limit, or prohibit the conflicting uses has evolved throughout the course of these
proceedings. Initially, the Applicant's June 23 record submittal advocated for what was
described as the "middle ground" option pursuant to OAR 660-023-0040(5)(b) whereby the
Exhibit G to Ordinance 2023-015 15
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
conflicting uses would be allowed in a "limited way," with those limitations being imposed by
the County's existing LM Zone. The Applicant further noted that it never sought as part of
these proceedings to remove the subject Properties from the LM Zone and the Applicant did
not otherwise propose amending DCC Chapter 18.84 implementing that LM Zone.
COLW's July 5 record submittal alternatively asserted that the Board should prohibit the
conflicting use entirely pursuant to OAR 660-023-0040(5)(a). COLW further argued that
"bootstrapping the existing LM Zone as a program to achieve Goal 5 to protect scenic view
resources from the conflicting uses of the [RI] zone is not sufficient to comply with LUBA's
remand order, because the LM [Z]one was not designed with those industrial conflicting uses
in mind."
The Applicant responded to COLW's July 5 argument in two ways. First, the Applicant's July
19 rebuttal submittal included numerous documents (Exhibits 8 through 14) challenging
COLW's foundational assumption that the LM Zone was not designed to mitigate RI uses. The
Applicant's aforementioned exhibits demonstrate that from the LM Zone's initial creation in
the early 1990s, it has always overlaid other RI zoned properties adjacent to Highway 97.
Second, and more importantly, the Applicant's July 26 final legal argument pivoted away from
recommending that the conflicting uses be allowed in a limited way pursuant to OAR 660-
023-0040(5)(b). In response to COLW's arguments regarding the LM Zone, the Applicant
instead recommended that the Board allow the conflicting uses fully pursuant to OAR 660-
023-0040(5)(c).
As explained further below, the majority of the Board agrees with the Applicant and finds
that the conflicting uses in this case should be allowed fully pursuant to OAR 660-023-
0040(5)(c). During deliberations, Commissioner Chang explained that he preferred the
"middle ground" option allowing the conflicting use in a limited way pursuant to OAR 660-
023-0040(5)(b). Accordingly, no commissioner agreed with COLW's argument to prohibit the
conflicting uses entirely pursuant to OAR 660-023-0040(5)(a).
The Board finds that the Updated ESEE Analysis (included as Exhibit I herein)
comprehensively documents numerous positive consequences of allowing uses allowed
under the RI zone on the subject Properties. Those positive consequences include, for
example, economic opportunities for the subject Properties' owners, employment
opportunities for future employees, and additional services for rural landowners between
the cities of Bend and Redmond. Although the provision governing the RI zone (i.e., DCC
Chapter 18.100) limited the size, scope, and intensity of any industrial use that could be
permitted on the subject Properties, the Updated ESEE Analysis further documents that all
industrial developments are in short supply in Deschutes County. The Board specifically
notes that both industrial developments in the Cities of Bend and Redmond currently have
a 0.80% and 2.45% vacancy rate, respectively. Industrial land as a whole in Deschutes County
Exhibit G to Ordinance 2023-015 16
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
is limited.2 The Updated ESEE Analysis further documents positive environmental
consequences stemming from reduced travel distances lowering carbon emissions for the
numerous rural property owners and existing businesses already located along the Highway
97 corridor between the Cities of Bend and Redmond.
The Board also finds that the Updated ESEE Analysis appropriately documents negative
consequences that will stem from allowing RI uses on the subject Properties. The Countys
Goal 5 scenic view program primarily benefits what are best described as "social" and
"environmental" values, and the Updated ESEE Analysis thereby primarily documents
negative consequences under those categories.
However, the Board finds that the Updated ESEE Analysis demonstrates that the negative
social and environmental consequences of allowing RI uses on the subject Properties are
minimized by the numerous existing developments on surrounding properties. Many of
those existing developments are in direct view of Highway 97, thereby diminishing the
existing scenic view resources. These numerous existing developments, the majority of
which are on properties that are also within the LM Zone, are documented further by the
Applicant's Exhibits 2, 3, 4, and 5 submitted in conjunction with the Updated ESEE Analysis.
Those exhibits demonstrate that a hill rises directly to the west of the subject Properties
blocking the more expansive views enjoyed by other properties also adjacent to Highway 97.
And, numerous structures were permitted to be developed on that hillside, even further
diminishing the scenic view resources near the three subject Properties. Rather than new RI
development in an otherwise unobstructed view shed, the Updated ESEE Analysis
appropriately documents the minimal negative consequences of allowing RI development
on the Properties already surrounded by existing and visible development. To be clear, the
Board does not mean to suggest that the scenic view resources in the vicinity of the subject
Properties are now entirely absent. Instead, the majority of the Board finds that these
existing developments in plain view of Highway 97 already diminished the scenic view
resources near the subject Properties such that the positive consequences of allowing RI
uses outweigh the minimal negative consequences.
Consistent with the aforementioned analysis and as specifically required by OAR 660-023-
0040(5)(c), the Board makes two additional findings. The majority of the Board finds that the
Updated ESEE Analysis demonstrates that allowing RI uses on the subject Properties is "of
sufficient importance" because the Goal 5 scenic view resources are already diminished in
the vicinity of the subject Properties. Stated simply, the majority of the Board finds that the
negative social and environmental consequences caused by visible development in the view
shed has already occurred such that the positive social and environmental consequences of
now allowing RI uses clearly outweigh any increased negatives.
2 The RI Zone only permits rural industrial development and not urban development.
Exhibit G to Ordinance 2023-015 17
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
OAR 660-023-0050, Programs to Achieve Goal 5
(1) For each resource site, local governments shall adopt comprehensive
plan provisions and land use regulations to implement the decisions
made pursuant to OAR 660-023-0040(5). The plan shall describe the
degree of protection intended for each significant resource site. The plan
and implementing ordinances shall clearly identify those conflicting uses
that are allowed and the specific standards or limitations that apply to
the allowed uses. A program to achieve Goal 5 may include zoning
measures that partially or fully allow conflicting uses (see OAR 660-023-
0040(5)(b) and (c)).
FINDING: As previously stated, the Board notes that these findings, including the Updated
ESEE Analysis, will be included by reference in DCC Chapter 23.01 and Section 5.12 of the
DCCP. The majority of the Board finds that no other amendments to the DCC or DCCP are
required to implement the Board's decision pursuant to OAR 660-023-0040(5).
An argument could be made that following the Board's decision to allow the conflicting use
fully, the County may now proceed with removing the subject Properties from the LM Zone.
However, the application before us does not propose to rezone the Properties to remove
the LM zoning designation. The Applicant explained that its initial land use application did
not seek the removal of the subject Properties from the LM Zone, and the County's public
notices and notices to DLCD, for example, did not contemplate such an amendment. The
Board finds that the subject Properties remain in the LM Zone, and that any subsequent
development on the subject Properties must comply with DCC Chapter 18.84.
(2) When a local government has decided to protect a resource site
under OAR 660-023-0040(5)(b) * * *>
FINDING: The Board elected to allow the conflicting use fully pursuant to OAR 660-023-
0040(5)(c). This provision is therefore inapplicable.
(3) In addition to the clear and objective regulations required by section
(2) of this rule, except for aggregate resources, local governments may
adopt an alternative approval process * * *.
FINDING: The Board elected to allow the conflicting use fully pursuant to OAR 660-023-
0040(5)(c). This provision is therefore inapplicable.
IV. DECISION:
Based upon the foregoing Findings of Fact and Conclusions of Law, the Board of County
Commissioners hereby APPROVES on remand the Applicant's applications for a
Comprehensive Plan Map amendment to re -designate the subject Properties from
Exhibit G to Ordinance 2023-015 18
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
Agriculture (AG) to Rural Industrial (RI) and a corresponding zoning map amendment to
change the zoning from Exclusive Farm Use - Tumalo/Redmond/Bend Subzone (EFU-TRB) to
Rural Industrial Zone (RI) subject to the following conditions of approval:
1. The maximum development on the Properties shall be limited to produce no more
than 32 trips in the PM peak hour and/or 279 daily trips as determined by the Institute
of Engineers Trip Generation Manual, 11th Edition. The County may allow
development intensity beyond these maximum number of vehicle trips only if the
Applicant submits to the County a traffic impact analysis that demonstrates that the
proposed intensification of use would be consistent with the Transportation Planning
Rule and the Deschutes County Code.
Dated this 30th day of August 2023
Exhibit G to Ordinance 2023-015 19
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
Exhibit "G" to Ord. 2022-011
DECISION AND RECOMMENDATION
OF THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS: 247-21-0000881-PA/882-ZC
OWNER:
APPLICANT:
Mailing Name: LBNW LLC
Map and Taxlot: 1612230000305
Account: 164853
Situs Address: 65301 N HWY 97, BEND,
OR 97701
Mailing Name: LBNW LLC
Map and Taxlot: 1612230000500
Account: 132821
Situs Address: 65315 HWY 97, BEND, OR 97701
Mailing Name: JOHNSON, DWIGHT E
& MARILEE R
Map and Taxlot: 1612230000301
Account: 132822
Situs Address: 65305 HWY 97, BEND,
OR 97701
LBNW, LLC
c/o Jake Hermeling
65315 Hwy 97
Bend, OR 97701
APPLICANT'S
ATTORNEY: Ken Katzaroff
Schwabe, Williamson & Wyatt P.C.
360 SW Bond Street, Suite 500
Bend, OR 97702
REQUEST:
The applicant requests approval of a Comprehensive
Plan Amendment to change the designation of the
property from Agricultural (AG) to Rural Residential
Exception Area (RREA). The applicant also requests
approval of a corresponding Zone Change to rezone the
property from Exclusive Farm Use (EFU) to Multiple Use
Agricultural (MUA-10). The applicant requests approval
of the applications without the necessity for a Statewide
Planning Goal 3 and/or a Goal 14 Exception, but
includes an application for a Goal 14 Exception in the
alternative, if determined to be necessary for approval
of the requested PAPA and Zone Change
STAFF CONTACT: Tarik Rawlings, Associate Planner
Phone: 541-317-3148
Email: Tarik.Rawlings@deschutes.org
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation
Page 1 of 110
Exhibit "G" to Ordinance 2022-011
PUBLIC HEARING DATE: April 26, 2022
RECORD CLOSED: June 14, 2022
HEARINGS BODY: Stephanie Marshall, Deschutes County Hearings Officer
DECISION DATE: July 12, 2022
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 18.80, Airport Safety Combining Zone (AS)
Chapter 18.100, Rural Industrial Zone (RI)
Chapter 18.120, Exceptions
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 4, Interpretation of Goal 2 Exception
Process Division 6, Forest Lands
Division 12, Transportation Planning
Division 14, Application of the Statewide Planning Goals to Newly Incorporated
Cities, Annexation, and Urban Development on Rural Lands
Division 15, Statewide Planning Goals and Guidelines
Division 33, Agricultural Land
Oregon Revised Statutes (ORS)
Chapter 197.732, Goal Exceptions
Chapter 197.734, Exceptions to Certain Statewide Planning Goal Criteria
Chapter 215.010, Definitions
Chapter 215.211, Agricultural Land, Detailed Soils Assessment
1I. BASIC FINDINGS
LOT OF RECORD: Tax Lot 500 is 1.06 acres in size, Tax Lot 305 is 3.00 acres in size,
and Tax Lot 301 is 15.06 acres in size. These three lots have not previously been verified
as legal lots of record. Per DCC 22.04.040 Verifying Lots of Record, lot of record
verification is required for certain permits:
B. Permits requiring verification
1. Unless an exception applies pursuant to subsection (B)(2) below,
verifying a lot parcel pursuant to subsection (C) shall be
required to the issuance of the following permits:
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 2 of 110
Exhibit "G" to Ordinance 2022-011
a. Any land use permit for a unit of land in the Exclusive
Farm Use Zones (DCC Chapter 18.16), Forest Use Zone
— F1 (DCC Chapter 18.36), or
Forest Use Zone — F2 (DCC Chapter 18.40);
b. Any permit for a lot or parcel that includes wetlands as
show on the
Statewide Wetlands Inventory;
c. Any permit for a lot or parcel subject to wildlife habitat
special assessment;
d. In all zones, a land use permit relocating property lines
that reduces in size a lot or parcel'
e. In all zones, a land use, structural, or non -emergency
on -site sewage disposal system permit if the lot or
parcel is smaller than the minimum area required in the
applicable zone;
In the Powell/Ramsey (PA-14-2, ZC-14-2) decision, the Hearings Officer held to a prior
Zone Change Decision (Belveron ZC-08-04) that a property's lot of record status was not
required to be verified as part of a plan amendment and zone change application. Rather,
the Applicant would be required to receive lot of record verification prior to any
development on the subject property. The Hearings Officer adheres to these prior
decisions and finds this criterion does not apply.
SITE DESCRIPTION: The subject properties are located approximately 4.8 miles south of
the City of Redmond and approximately 4.25 miles north of the City of Bend. The three
subject Tax Lots (301, 305, and 500) constitute a total of approximately 19.12 contiguous
acres and are located on the west side of Highway 97, immediately adjacent to the
highway.
Tax Lot 301 (15.06 acres) is landlocked between Tax Lots 305 (3.00 acres) and 500 (1.06
acres) to the south. Highway 97 corridor, a Central Oregon Irrigation District (COID) canal,
and two (2) Exclusive Farm Use (EFU) properties currently receiving farm tax deferral are
located to the east. A rural residential subdivision is located to the west.
Tax Lots 305 and 500 are developed with structures associated with a historic "diesel
implement and repair shop" use on those properties, which has taken place for the majority
of the last 40 years. Tax Lot 301 is developed with a residential manufactured dwelling
that is currently unoccupied; this Tax Lot is not currently in use. The properties are
relatively level with mild undulating topography and a slight upward slope along the
western boundary adjoining the residential subdivision to the west. Vegetation consists of
juniper, sage brush, and grasses. The subject properties are not currently receiving farm
tax deferral nor are they currently engaged in farm use.
Access to the site is provided from Highway 97, which connects to a private driveway that
traverses the COID irrigation canal that runs through the properties.
Tax Lots 305 and 301 contain 0.20 acres and 2.70 acres of water rights, respectively. The
Natural Resources Conservation Service (NRCS) map shown on the County's GIS
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 3 of 110
Exhibit "G" to Ordinance 2022-011
mapping program identifies three soil complex units on the property: 31A, Deschutes
sandy loam, 0 to 3 percent slopes; 38B, Deskamp-Gosney complex, 0 to 8 percent slopes;
and 58C, Gosney-Rock outcrop-Deskamp complex, 0 to 15 percent slopes.
As discussed in detail below in the Soils section, an Agricultural Soils Capability
Assessment (Order 1 soil survey) was conducted on each of the three properties and
determined that the subject properties do not constitute agricultural land as defined in
Statewide Planning Goal 3 and are generally comprised of unsuited Class 7 and 8 soils
as detailed in Deschutes County Code (DCC) and DLCD definitions.
PROPOSAL: The Applicant requests approval of a Comprehensive Plan Map Amendment
to change the designation of the subject property from Agricultural (AG) designation to a
Rural Industrial (RI) designation. The Applicant also requests approval of a corresponding
Zoning Map Amendment to change the zoning of the subject property from Exclusive Farm
Use (EFU) to Rural Industrial (RI). The Applicant asks that Deschutes County change the
zoning and the plan designation because the RI zoning district is the more appropriate
zone for the subject property as the subject property is not agriculturally viable and is
better suited for uses consistent with the RI Zone and historical uses utilized on the subject
properties may be allowed under the RI Zone. The Applicant's submitted burden of proof
states that the Applicant intends to utilize the subject properties to develop a mini -storage
facility on Tax Lot 301 (a conditional use within the RI Zone) and maintain the existing
equipment repair/storage/rental facilities located on Tax Lots 305 and 500 (an outright use
within the RI Zone).
The Applicant requests approval of the applications without the necessity for a Statewide
Planning Goal 3 and/or a Goal 14 Exception, but includes an application for a Goal 14
Exception in the alternative, if determined to be necessary for approval of the requested
PAPA.
Submitted with the application are three (3) Order 1 Soil Surveys for each of the three (3)
subject properties, titled "Johnson — Order 1 Soil Survey Report" (Tax Lot 301), "LBNW
LLC — Order 1 Soil Survey Report" (Tax Lot 305), and "LBNW LLC — Order 1 Soil Survey
Report" (Tax Lot 500) (hereafter referred to collectively as the "soil study") prepared by
soil scientist Gary Kitzrow, CPSC/CPSS #1741 of Growing Soils Environmental
Associates. The Applicant also submitted a traffic analysis prepared by Scott Ferguson of
Ferguson & Associate, Inc titled "Site Traffic Report and TPR Assessment for Proposed
Zone Change -Deschutes County, OR" hereby referred to as "traffic study." Additionally,
the Applicant submitted an application form, a burden of proof statement, and other
supplemental materials, all of which are included in the record for the subject applications.
SOILS: Tax Lots 305 and 301 contain 0.20 acres and 2.70 acres of water rights,
respectively. The Natural Resources Conservation Service (NRCS) map shown on the
County's GIS mapping program identifies three soil complex units on the property: 31A,
Deschutes sandy loam, 0 to 3 percent slopes; 38B, Deskamp-Gosney complex, 0 to 8
percent slopes; and 58C, Gosney-Rock outcrop/Deskamp complex, 0 to 15 percent
slopes.
The Order 1 soil study was prepared by a certified soils scientist and soil classifier that
determined the subject property is predominantly comprised of soils that do not qualify as
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 4 of 110
Exhibit "G" to Ordinance 2022-011
Agricultural Land.1 The purpose of this soil study was to inventory and assess the soils on
the subject property and to provide more detailed data on soil classifications and ratings
than is contained in the NRCS soils maps. The NRCS soil map units identified on the
property are described below.
31A, Deschutes Sandy Loam, 0 to 3 percent slopes: This soil is composed of 85%
Deschutes soil and similar inclusions and 15% contrasting inclusions. The Deschutes soil
is well drained with a moderately rapid permeability and an available water capacity of
about four (4) inches. The major use of this soil is irrigated cropland and livestock grazing.
The soil capability rating for the Deschutes sandy loam soil is 6S when not irrigated and
3S when irrigated. This soil is considered a high value soil when irrigated. Approximately
16.5 percent (Tax Lot 301), 22 percent (Tax Lot 305), and 97.2 percent (Tax Lot 500) of
the subject properties are composed of 31A soil, respectively.
38B, Deskamp-Gosney complex, 0 to 8 percent slopes: This soil is composed of 50
percent Deskamp soil and similar inclusions, 35 percent Gosney soil and similar
inclusions, and 15 percent contrasting inclusions. The Deskamp soils are somewhat
excessively drained with rapid permeability, and an available water capacity of about 3
inches. The Gosney soils are somewhat excessively drained with rapid permeability, and
an available water capacity of about 1 inch. The contrasting inclusions contain Clovkamp
soils in swales, soils that are very shallow to bedrock, and are on ridges with occasional
rock outcrops. The major use of this soil is for livestock grazing. The Deskamp soils have
ratings of 6e when unirrigated, and 3e when irrigated. The Gosney soils have ratings of
7e when unirrigated, and 7e when irrigated. This soil type is not considered high -value
soil. Approximately 61.4 percent (Tax Lot 301), 47.7 percent (Tax Lot 305), and 2.8
percent (Tax Lot 500) of the subject properties are made up of this soil type, respectively.
58C, Gosney-Rock Outcrop-Deskamp complex, 0 to 15 percent slopes: This soil type is
comprised of 50 percent Gosney soil and similar inclusions, 25 percent rock outcrop, 20
percent Deskamp soil and similar inclusions, and 5 percent contrasting inclusions. Gosney
soils are somewhat excessively drained with rapid permeability. The available water
capacity is about 1 inch. Deskamp soils are somewhat excessively drained with rapid
permeability. Available water capacity is about 3 inches. The major use for this soil type is
livestock grazing. The Gosney soils have ratings of 7e when unirrigated, and 7e when
irrigated. The rock outcrop has a rating of 8, with or without irrigation. The Deskamp soils
have ratings of 6e when unirrigated, and 4e when irrigated. Approximately 22.1 percent
(Tax Lot 301), and 30.3 percent (Tax Lot 305) of two (2) of the subject properties are made
up of this soil type.
The Order 1 soil study includes findings for each of the three tax lots of which the subject
property is comprised, set forth below:
Tax Lot 301: A large (preponderance) of this lot is made up of along
infrastructure/Impact Areas along with the shallow, generally unsuited Class 7,
Gosney (irrigated and nonirrigated). Conversely, Deschutes soils are somewhat
deeper, have defined topsoils and a little less sand than the competing Gosney
1 i As defined in OAR 660-033-0020, 660-033-0030.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation
Page 5 of 110
Exhibit "G" to Ordinance 2022-011
soil units and less rock. This study area and legal lot of record is comprised of 8.00
acres or 53.1% of generally unsuited soils Capability Class 7 and 8 by Deschutes
County and DLCD definitions.
• Tax Lot 305: A large (preponderance) of this lot is made up of along
infrastructure/Impact Areas along with the shallow, generally unsuited Class 7,
Gosney (irrigated and nonirrigated). These lithic, entic Gosney soil mapping units
are shallow, have extremely restrictive rooting capabilities and low water holding
capacities. Conversely, Deskamp and Deschutes soils are somewhat deeper,
have defined topsoils and a little less sand than the competing Gosney soil units
and Tess rock. Noteworthy is the fact that along the western boundary and southern
boundary of this lot are large inclusions of rubble and rock outcrops. This is found
regardless of the associated three soils delineated in this analysis. This study area
and legal lot of record is comprised of 2.45 acres or 81.7% of the landbase as
generally unsuited soils Capability Class 7 and 8 by Deschutes County and DLCD
definitions.
• Tax Lot 500: A large (preponderance) of this lot is made up of along
infrastructure/Impact Areas along with the shallow, generally unsuited Class 7,
Gosney (irrigated and nonirrigated). Conversely, Deschutes soils are somewhat
deeper, have defined topsoils and a little less sand than the competing Gosney
soil units and less rock. This study area and legal lot of record is comprised of 0.93
Acres or 87.7% of generally unsuited soils Capability Class 7 and 8 by Deschutes
County and DLCD definitions.
The Hearings Officer notes that, although the Order 1 soil study refers to "legal lot of
record," Lot of Record determination for the subject properties has not been made, nor is
such a determination relevant to the subject applications, as discussed above. This
Decision and Recommendation shall not constitute verification of or findings on a Lot of
Record determination for the subject properties. Further discussion regarding soils is set
forth in Section III below.
SURROUNDING LAND USES: The subject properties are surrounded by residential
subdivisions to the west, open space state park property to the south, the Highway 97
corridor and two (2) EFU-zoned properties currently receiving farm tax deferral and
containing irrigation rights to the east, and one EFU-Zoned property not receiving farm tax
deferral or containing irrigation rights to the north. The adjacent properties are outlined
below in further detail:
North: North of the subject properties is an area of EFU-zoned property. The adjacent
property to the north, Tax Lot 202 (Assessor's Map 16-12-23) is a 5.63-acre vacant EFU-
zoned property without irrigation rights, not currently receiving farm tax deferral, and
appears to be currently engaged in residential use.
East: East of the subject properties are two parcels zoned EFU. Tax Lot 300 (Assessor's
Map 16-1223) is a 21.56-acre parcel developed with a single-family manufactured
dwelling, an accessory structure, is partially irrigated, and currently receiving farm tax
deferral. Tax Lot 306 (Assessor's Map 16-12-23) is a 20.54-acre parcel developed with a
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 6 of 110
Exhibit "G" to Ordinance 2022-011
single-family dwelling, an accessory structure previously utilized as a medical hardship
dwelling, is partially irrigated, and currently receiving farm tax deferral. Additionally, to the
east and southeast, is the Highway 97 transportation corridor.
West: West of the subject properties are residential subdivisions zoned Rural Residential
(RR10). These include the Whispering Pines Estates Fourth Addition subdivision and the
First Addition to Whispering Pines Estates subdivision. Rosengarth Estates and
Gardenside PUD in the RS Zone. Northwest is a 2.63-acre parcel zoned RR10 located
within the Third Addition to Whispering Pines Estates subdivision.
South: South of the subject properties is a 35.89-acre vacant parcel zoned Open Space &
Conservation (OS&C), owned and operated by the Oregon Parks & Recreation
Department (OPRD). This property is recognized as Tax Lot 700 (Assessor's Map 16-12-
23).
Additionally, along the eastern boundary of Tax Lots 301 and 305, and along the western
boundary of Tax Lot 500 is an irrigation canal operated by COID.
LAND USE HISTORY:
• NCU-73-33: Non -conforming use approval for a "farm equipment business" on Tax Lot
305. In file NUV-91-1 the Hearings Officer provided the following description of this
approval:
On February 27, 1973, Terry Mills applied for, and the Deschutes County Planning
Commission approved, an application to expand a nonconforming use (File No. NCU-73-
33). The application and attached map indicated the proposed expansion was only for
property lying west of the Pilot Butte Canal on what is now Tax Lots 305 and 301.
However, the Planning Commission approved Mr. Milts' plan to expand his truck and
equipment repair and sales business by adding to the existing structure on the east side of
the canal (Tax Lot 500) and/or adding a new building west of the canal (Tax Lot 305),
constructing a bridge spanning the canal, and keeping uses on the remainder of the parcels
limited to "equipment storage and display and agricultural use." The decision allowed Mr.
Mills until January 1, 1985, to complete the approved expansion.
• Z-78-23: Zone Change approval from A-1 (Exclusive Agricultural) to A-S (Rural
Service Center) • SP-79-21: Site plan review for a "diesel implement and repair
business" on Tax Lot 500.
• PL-15: Deschutes County revised Zoning Ordinance changing the zoning of the
subject properties to "EFU-20".
• NUV-96-1: Nonconforming use verification review for a commercial use in the EFU
Zone on Tax Lot 500, 301 and 305, specifically a "truck, machinery and equipment
repair, storage and sales business". This request was denied by the Hearings Officer,
who concluded:
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 7 of 110
Exhibit "G" to Ordinance 2022-011
PUBLIC AGENCY COMMENTS: The Planning Division mailed notice on October 6, 2021,
to several public agencies and received the following comments:
Deschutes County Senior Transportation Planner, Peter Russell
1 have reviewed the transmittal materials for 247-21-000881-PA/882-ZC for three
properties totaling approximately 19 acres to change the Comprehensive Plan designation
from Agriculture to Rural Industrial and the zoning from Exclusive Farm Use (EFU) to
Rural Industrial (RI). The properties lie in the Exclusive Farm Use (EFU), Airport Safety
(AS), and Landscape Management (LM) zones at 65301, 65305, and 65315 Hwy 97, aka
County Assessor's Map 16-12-23, Tax Lot 305, 16-12-23, Tax Lot 301, and 16-1223, Tax
Lot 500, respectively.
The submitted traffic analysis by Ferguson & Associates dated Aug. 11, 2021, is deficient
in several areas and does not comply with Deschutes County Code (DCC) 18.116.310 or
the Transportation Planning Rule (TPR) and is thus unacceptable. Examples of the traffic
analysis' deficiencies include the following major areas. DCC 18116.310(E)(4) requires a
20-year timeframe for analysis; the study has no such analysis. The traffic analysis lack
any operational analysis, thus making it impossible to determine the before/after volume -
capacity ratio of the access, which means it is impossible to determine if the plan
amendment/zone change has any significant effect. Without determining if there is a
significant effect or not, the traffic analysis does not comply with the TPR at Oregon
Administrative Rule (OAR) 660-00120060. The traffic analysis assumes a right -in, right -
out access point; yet there is no physical obstruction (pork chop barrier or raised median)
restricting moves to RIRO. The property is slightly closer to Bend than Redmond, yet the
trip distribution is almost exclusively skewed toward trips being to/from Redmond. Staff
finds that a dubious assumption given Redmond's population of roughly 25,000 vs. Bend's
roughly 91,000. Staff disagrees with the baseline trip assumptions under the current
zoning. In several recent plan amendment/zone changes involving EFU, the current
highest trip generator was a single-family home. The traffic analysis should use one of
the specific outright permitted uses found in DCC 18.16.020. The current study
significantly understates the p.m. peak hour trips of the EFU zoning. The traffic analysis
does not include a reasonable worst case scenario of the outright permitted uses under
the Rural Industrial zone. If the Applicant believes the traffic analysis is a reasonable -
worst case scenario, then the Applicant needs to provide further justification or rationale.
The study simply states "...the assumed uses generated more traffic than the site could
handle with existing access configurations, no further examination of potential uses was
examined." There is no supporting evidence for this claim; nor is there any explanation
why the existing access could not be modified to accommodate more traffic. Finally, the
traffic study references a potential mini -storage, but there is not a simultaneous site plan
submittal for any specific use.
The property accesses US 97, a public highway under the jurisdiction of the Oregon
Department of Transportation (ODOT). Therefore the access permit requirements of DCC
17.48.210(A) do not apply.
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate
of $4, 757 per p.m. peak hour trip. As the plan amendment/zone change by itself does not
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 8 of 110
Exhibit "G" to Ordinance 2022-011
generate any traffic, no SDCs apply at this time. SDCs will be assessed based on
development of the property. When development occurs, the SDC is due prior to issuance
of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is
due within 60 days of the land use decision becoming final.
THE PROVIDED SDC RATE IS ONLY VALID UNTIL JUNE 30, 2022. DESCHUTES
COUNTY'S SDC RATE IS INDEXED AND RESETS EVERY JULY 1. WHEN PAYING
AN SDC, THE ACTUAL AMOUNT DUE IS DETERMINED BY USING THE CURRENT
SDC RATE AT THE DATE THE BUILDING PERMIT IS PULLED.
REVISED TRAFFIC STUDY AND RESPONSE FROM SENIOR TRANSPORTATION
PLANNER: Upon receipt of the County Senior Transportation Planner's initial comment,
above, the Applicant submitted a revised traffic study, dated March 18, 2022, sent to staff
via email on April 6, 2022. In response, the following comment was offered by the County's
Senior Transportation Planner:
I have reviewed the March 18, 2022, revised traffic study for 247-21-000881-PA/882-ZC
for three properties totaling approximately 19 acres to change the Comprehensive Plan
designation from Agriculture to Rural Industrial and the zoning from Exclusive Farm Use
(EFU) to Rural Industrial (RI). The properties lie in the Exclusive Farm Use (EFU), Airport
Safety (AS), and Landscape Management (LM) zones at 65301, 65305, and 65315 Hwy
97, aka County Assessor's Map 16-12-23, Tax Lot 305, 16-12-23, Tax Lot 301, and 16-
12-23, Tax Lot 500, respectively. For reasons state below, staff finds the revised traffic
study insufficient.
The revised TIA again does not make an apples -to -apples comparison of the potential trip
generation from the site based on existing zoning vs. requested zoning. In staff's Oct. 22,
2021, comment staff specifically required traffic analysis that compares reasonable worst -
scenario using outright permitted uses in the existing Exclusive Farm Use (EFU) zone to
the requested Rural Industrial (RI) use. Those uses are listed under Deschutes County
Code (DCC) 18.100.010. Instead, the traffic analysis falters on two points. First, the traffic
study uses Warehouse, which is a conditional use in the RI zone at DCC 18.100.020(M).
Second, there are several higher traffic generators listed under conditional uses at DCC
18.100.020.
As an aside, on the one hand the Applicant argues this is not productive agricultural land
and on the other the traffic engineer argues there are agricultural uses that would generate
more trips than a single-family zone. (The County historically uses a single-family as the
highest trip generator in EFU). Staff looks to the hearing officer to reconcile this paradox
of not being agriculturally viable land, yet potentially producing more trips based on
agricultural activities.
Again, the TIA uses Mini -Warehouse as a use for the Rural Industrial (RI) use, yet there
is not a simultaneous site plan application for that land use. While the TIA refers to
"intention" that is not the same as an actual land use application. The current land use
application is only for a plan amendment/zone change. The TIA needs to analyze a
reasonable worst -case use based on the current edition of the Institute of Traffic
Engineers Trip Generation Handbook, which is the 11 to
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 9 of 110
Exhibit "G" to Ordinance 2022-011
As a matter of practice, Deschutes County when reviewing the potential traffic impacts of
plan amendment/zone changes, has required Applicants to use a reasonable worst -case
scenario of outright permitted uses in the current zone vs. outright permitted uses in the
requested zone. If the traffic engineer insists on analyzing counter to accepted County
practice, then the traffic analysis should be apples -to -apples and use reasonable worst -
case scenario for both the conditional uses of DCC 18.100.020 and DCC 18.100.020.
Instead, the revised traffic study uses outright permitted in the base case and a conditional
use in the requested zone for an apples -to -oranges comparison. (Staff is opposed to
using conditional uses and only presents this argument to demonstrate another area
where the revised traffic analysis is deficient).
The traffic study argues transit will decrease the 20-year volumes on US 97, but does not
provide any factual evidence, Cascade East Transit (CET) plans for increased service
between Bend and Redmond, the number of buses (both capacity and headway, i.e. time
between buses) to significantly affect the forecast volumes on US 97. The traffic study
also speculates on the effect of rising fuel costs on the 20-year forecast traffic volumes.
Equally valid speculation could ruminate on the rising fuel -efficiency of gas -powered
vehicles and the State's goal to increase the number of electric vehicles in Oregon as
offsetting factors and that future traffic volumes will continue to climb.
The traffic study's views on ODOT methodology for measuring intersection performance
is irrelevant. Those are the agency's adopted measures and are cited in DCC
18.116.310(H).
SENIOR TRANSPORTATION PLANNER COMMENTS TO APPLICANT'S SECOND
RESPONSE: Upon receipt of the County Senior Transportation Planner's second
comment, above, the Applicant submitted additional comments, dated April 8, 2022 and
sent to staff via email on April 8, 2022. In response, the following comment was offered by
the County's Senior Transportation Planner (dated April 11, 2022):
I have reviewed the Applicant's traffic engineer's April 8, 2022, memo which was written
in response to my April 7 assessment of the revised traffic study dated March 18, 2022.
Below are my responses.
• The Applicant is correct, I mistakenly said the revised TIA uses Warehouse (Land
Use 150) and Mini -Warehouse (LU 151), rather than land use actually used, which
was Manufacturing (LU 140). I apologize for the error.
• The Applicant's TIA uses the wrong version of ITE Trip Generation Manual. The
TIA use the 10th
Edition (see page 7 of March 18 TIA. Deschutes County Code (DCC)
18.116.310(F)(2) and
18.116.310(G)(2). The 11fh Edition is the most recent version of the ITE Trip
Generation Manual.
• Staff notes that trip caps are notoriously difficult to monitor and enforce. The only
regulatory ability the County has is to enforce the type of use allowed on the site
and the size of the buildings. The County does not control nor monitor the
number of employees used at a business, the number of labor shifts, the
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 10 of 110
Exhibit "G" to Ordinance 2022-011
start/stop times of those shifts, the number of deliveries to a site, etc. Staff would
appreciate the Applicant's ideas on how to create a functioning trip cap and what
would be the penalty for violation. Staff has used building size as the best proxy
for a trip cap, but there may be other measures.
SENIOR TRANSPORTATION PLANNER COMMENTS TO ODOT MAY 23, 2022
SUBMITTAL: On May 24, 2022, Peter Russell emailed Planning staff to respond to
ODOT May 23, 2022 submittal and the Applicant's May 24, 2022 agreement to ODOT's
proposed language regarding a trip cap:
Tarik,
I have reviewed both the ODOT May 23 submittal regarding the proposed trip
cap for 247-21-000881-PA/882-ZC and the applicant's May 24 agreement to the
agency's language limiting the trip cap to 32 p.m. peak hour trips and 279 daily
trips. I also concur with this limitation. The ODOT language calling for a text
amendment is best addressed during the current update of the Deschutes
County Transportation System Plan (TSP) as a potential change in policy
language. Another option is ODOT can apply to a text amendment to the
development code regarding trip caps and land use development.
If you have any questions, please let me know. Thanks.
Central Oregon Irrigation District, Kelley O'Rourke
Re: 247-21-000881-PA, 882-ZC
1612230000305/65301 N HWY 97, BEND, OR 97701
1612230000500/65315 HWY 97, BEND, OR 97701
1612230000301/ 65305 HWY 97, BEND, OR 97701
Please be advised that Central Oregon Irrigation District (COLD) has reviewed the
provided preliminary application for the above referenced project. The Applicant requests
approval of a Comprehensive Plan Amendment to change the designation of the property
from Agricultural (AG) to Rural Industrial (RI). The Applicant also requests approval of a
corresponding Zone Change to rezone the property from Exclusive Farm Use (EFU) to
Rural Industrial (RI). The subject properties are located at 65301 N HWY 97, 65315 HWY
97 and 65305 HWY 97 in Bend, Oregon (Map and Tax lots: 1612230000305,
1612230000500, 1612230000301).
Listed below are COIDs initial comments to the provided preliminary plans. All
development affecting irrigation facilities shall be in accordance with COID's Development
Handbook and/or as otherwise approved by the District.
Water Rights
• 1612230000305: Has 0.20 acres of appurtenant COID irrigation water rights •
1612230000500: There are no COID water rights
• 1612230000301: Has 2.70 acres of appurtenant COID irrigation water rights
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 11 of 110
Exhibit "G" to Ordinance 2022-011
• All water rights must be removed from these properties prior to approval of the
zone change. COID requests property owners contact COID to request removal
of the water rights.
Canal and Laterals
• COID's main canal is located within tax lots 1612230000305 and 1612230000301
and has a ROW of 75-feet with a road easement of the west side of 20-feet. The
easement appears to extend onto tax lot 1612230000500. COID will need the
marginal limit plus 20-feet in areas where the canal and road exceed the
easement. Any irrigation conveyance, District or private, which passes through
the subject property shall not be encroached upon or crossed without written
permission from COID. No structures of any kind, including fence, are permitted
within COID property/easement/right of way. Comply with Requirements of COID
Developer Handbook including restriction on drilling / blasting and excavation
within and adjacent to the existing canal embankment.
• COID's POD is located at the southern property line on tax lot 305 for *A-17. There
are private delivery ditches that run through each property to access the water
rights. *A-18 has a POD at the northern property line of tax lot 301, the easement
is 20' each side of center. Please note: a portion of *A-18 is piped. Please contact
COID to discuss these facilities.
All crossing shall be in accordance with COID's Development Handbook and must
be approved by COID. A crossing license shall be required for the existing bridge.
Please provided COID with the existing recorded crossing license for the bridge
that spans across the Pilot Butter Canal. If the recorded document does not exist,
contact COID for information on the process, timing, fees to obtain a crossing
license.
• Policies, standards and requirements set forth in the COID Developer Handbook
must be complied with.
• Please note that COID facilities are located within the vicinity of the subject
property; contact COID if any work and/or crossings will be done near the COID
facilities.
Our comments are based on the information provided, which we understand to be
preliminary nature at this time. Our comments are subject to change and additional
requirements may be made as site planning progresses and additional information
becomes available. Please provide updated documents to COID for review as they
become available.
ODOT Region 4, Don Morehouse, Senior Transportation Planner
On April 20, 2022, Don Morehouse emailed Mr. Rawlings regarding the application as
follows:
Hi Tarik,
Although we are holding off on the review of the traffic impact study and land use
application associated with 21-881-PA/882-ZC because it is incomplete, it does appear
that this proposal will constitute a change of use requiring that the applicant submit a new
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 12 of 110
Exhibit "G" to Ordinance 2022-011
road approach permit application through our District 10 office. Quinn Shubert is the point
of contact:
Quinn Shubert
Permits Specialist
ODOT District 10
63055 North Hwy 97
Bend, OR 97703
C: 541-410-0706
On May 23, 2022, Mr. Morehouse emailed Planning Staff as follows:
Hi Tarik,
I'd like to replace the comment I sent back on April 20, 22 with the following two comments
pertaining to this Plan Amendment/Zone Change (21-881-PA/882-ZC) application:
• The Deschutes County Development Code should be amended to address the
concept of a Trip Cap. Ideally, this suggested code provision would require the
applicant to submit a Development Code Amendment application with a traffic
impact analysis to show whether or not the Transportation Planning Rule is
satisfied with the increase of a Trip Cap.
• ODOT agrees with a Trip Cap of 32 PM peak hour trips and 279 daily trips.
Please let me know if you have any further questions. Thanks
Proposed Condition of Approval
On May 24, 2022, legal counsel advised County Planning Staff, ODOT and the Senior
Transportation Planner of a proposed condition of approval regarding trip caps as follows:
Don, Peter and Tarik:
To be consistent with ODOT's comments, we are revising our proposed COA to
read as follows:
"The maximum development on the three subject parcels shall be limited to
produce no more than 32 trips in the PM peak hour and/or 279 daily trips as
determined by the Institute of Engineers Trip Generation Manual, 11 th Edition. The
County may allow development intensity beyond these maximum number of
vehicle trips only if the applicant submits to the County a traffic impact analysis
that demonstrates that the proposed intensification of use would be consistent with
the Transportation Planning Rule and the Deschutes County Code."
If this works for everyone, we will submit a letter into the record as soon as
possible.
Thereafter, on May 24, 2022, legal counsel requested County Planning Staff to include
the entire email chain into the record for the applications, stating:
A separate correspondence is likely superfluous as this email chain already
includes the proposed condition of approval and written concurrence thereof from
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 13 of 110
Exhibit "G" to Ordinance 2022-011
both ODOT and County staff. If you disagree and prefer a separate
correspondence, please let me know. The applicant, of course, still contemplates
providing a comprehensive open record submittal by the new May 31, 2022
deadline.
The following agencies did not respond to the notice: Deschutes County Assessor, Bend
Fire Department, City of Bend Planning Department, City of Bend Public Works
Department, City of Bend Growth Management Department, Redmond Airport, Oregon
Department of Aviation, and Deschutes County Road Department.
PUBLIC COMMENTS: The Planning Division mailed notice of the conditional use
application to all property owners within 750 feet of the subject property on October 6,
2021. The Applicant also complied with the posted notice requirements of Section
22.24.030(B) of Title 22. The Applicant submitted a Land Use Action Sign Affidavit
indicating the Applicant posted notice of the land use action on October 6, 2021.
Supportive public comments were received from 44 individuals, one of which appears to
be associated with the existing business uses on Tax Lots 305 and 500. The names of
the supporting commenters are listed below.
Oppositional public comments were received from one neighboring property owner, from
Central Oregon LandWatch, and from 1000 Friends of Oregon. The oppositional
comments are detailed below. The supportive public comments do not specify approval
criteria and are summarized herein as generally supportive of the subject applications for
reasons including economic opportunities, improvement of the subject properties since
the current owners took over, the character of the Applicant, and the need for industrial
uses due to regional growth.
Supporting commenters:
1. Dirk van der Velde
2. Shoshana Buckendorf
3. Micah Frazier
4. Anthony Jimenez
5. Brandon Olson
6. Cody King
7. Craig Shurtleff
8. Donnie Eggers
9. Dee Shields
10. Julie Porfirio
11. Jill Shaffer
12. Nick Alker
13. Nick Greenlee
14. Stephen Wagner
15. Truett Nealy
22. Michael Van Skaik 43. Joseph Seevers
23. Derek Ridgley 44. Rebecca Hermeling
24. Whitney Nordham
25. Sam DeLay
26. Jeremy Stafford
27. Tom Price
28. Ali Luengo
29. Kenna Aubrey
30. Laurie Luoma
31. Sarah Chmiel
32. Jillian Gish
33. Haley Offerman
34. Joshua Wurth
35. Erik Retzman
36. Grace Stafford
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 14 of 110
Exhibit "G" to Ordinance 2022-011
16. Bob Trapnell
17. Gerardo Arreola
18. Joseph Seevers
19. Mike Musco
20. Mark Rylant
21. Paula Johnson
37. Marilee Johnson
38. Adam Fuller-Ellifit
39. Theresa Vachon
40. Mike Vachon
41. Marty Petersen
42. Mark Rylant
An oppositional comment was received from Jay Musson, a resident and owner of property
located at 65468 73rd Street, Bend, OR 97703 on October 9, 2021:
"I own the property at address 65468 73rd which backs up to the subject property
in this file number. Our property is part of a development called Whispering Pines
#4. We have a community well as well as covenants such as no large farm animals
(cows and pigs etc). Just like developments in the cities of Bend and Redmond.
The only difference is our lots are all about 2.5 acres. All of the properties along
73rd backing up to this subject property are single family houses. The last thing
we need in is an industry moving in behind us with large buildings, equipment and
possible pollution. In fact the east side of this subject property (the jagged side) is
the Central Oregon Irrigation Canal. I'm sure they don't want pollution entering
their canal. I therefore strongly object to this proposed zone change. Keep
industry in town, not in a pristine residential and agriculture area."
Mr. Musson offered a second public comment on April 15, 2022:
"I own property 65468 73rd ST that backs up to the subject property. I want to
announce my opposition to this proposed zone change. This is farm country, not
asphalt and tin can storage building country. This kind of development belongs in
a city. Also rain runoff from the asphalt into the COCC irrigation canal which
borders this property cannot be good. If the owner of this property wants to make
money on this piece of property grow some hemp."
Another oppositional comment was received from Kristy Sabo, the Wild Lands and Water
Program Manager with Central Oregon LandWatch ("COLW") on October 19, 2021:
"I'm writing today to express concern from Central Oregon LandWatch about
whether application file nos. 247-21-000881-PA and 247-21-000882-ZC meet the
necessary criteria for a zone change and a plan amendment with goal exceptions.
These two applications across three tax lots request that land zoned EFU-TRB,
exclusive farm use, be rezoned to Rural Industrial. While we are still reviewing the
applications and all of the issues, we are initially concerned that the applications
include no adequate showing that rezoning and a plan change is appropriate. The
proposed use cannot be approved without exceptions to Statewide Planning Goals
3, 11, 12 and 14. Because no exceptions have been justified, the application must
be denied. The proposed designation is expressly prohibited by the County's
acknowledged comprehensive plan. We are concerned that the proposal would
unnecessarily take agricultural land out of production. The comprehensive plan
provides multiple opportunities for the proposed use that do not require rezoning.
The proposed use will have a negative impact on surrounding rural land uses.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 15 of 110
Exhibit "G" to Ordinance 2022-011
Please add LandWatch to your list of interested parties and let us know of any
decisions or hearings."
On April 26, 2022, COLW, through Rory Isbell, Staff Attorney and Rural Lands Program
Manager, submitted a formal letter in opposition to the applications, primarily alleging that
the proposed plan amendment and zone change do not comply with Goals 3 and 14 and
alleging that the subject property is rural agricultural land, outside of an urban growth
boundary, where new urban industrial uses are prohibited. The letter states, in relevant
part:
Goal 3
The subject property is agricultural land as defined by Goal 3, OAR 660-033-
0020(1)(a) and DCC 18.040.030 [definitions omitted].
The subject property was correctly designated as agricultural land and is correctly
zoned for exclusive farm use (the lack of mistakes in the designation and zoning
of agricultural lands in Deschutes County is discussed further below). The subject
property is predominantly land capability Class 111 irrigated and Class IV unirrigated
and thus is agricultural land as a matter of law. Statewide Planning Goal 3, OAR
660-015-0000(3); OAR 660-033-0020(1)(a); DCC 18.04.030. The property's 388
and 31A soils are both Class 111 when irrigated, and because this property is within
the boundaries of COID and has water rights, the property is irrigated and contains
predominantly NRCS Class Ill soils.
LandWatch requests the Hearings Officer to take official notice of a true and
correct copy of the U.S. Department of Agriculture, NRCS Soil Survey of the Upper
Deschutes River Area, Oregon, including parts of Deschutes, Jefferson, and
Klamath Counties, 284 pp. The Upper Deschutes River Area, Oregon Soil Survey
is attached as Exhibit 1.
LandWatch also requests the Hearings Officer to take official notice of the soils
map with legend and the land capability classifications, both irrigated and
unirrigated, of the subject property attached as Exhibit 2. These exhibits are true
and correct copies of the portions of the official USDA NRCS Upper Deschutes
River Area Soil Survey depicting the subject property.2
These materials are produced and maintained as public records and are
published as official publications of the U.S. Department of Agriculture. They
contain information the accuracy of which cannot reasonably be questioned, and
so are appropriate subjects for judicial notice. These materials from the U.S.
Department of Agriculture, NRCS Upper Deschutes River Area Soil Survey are
designed to assist the Hearings Officer in determining the law regarding the
definition of agricultural land in DCC 18.04.030, OAR 660-033-0020(1)(a), OAR
660-015- 0000(3), and Statewide Planning Goal 3.
The official NRCS Upper Deschutes River Area Soil Survey relates to the content
of law and policy on the definition of "agricultural land" in Oregon and does not
concern only the parties in the case at bar. The Hearings Officer is requested to
2https://websoilsurvey.sc.egov.usda.qov/App/WebSoilSurvey.aspx. Accessed April 26, 2022.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 16 of 110
Exhibit "G" to Ordinance 2022-011
take official notice of the NRCS Upper Deschutes River Area Soil Survey and the
attached excerpts thereof as legislative facts. State v. O'Key, 321 Or. 285, 309
n.35, 899 P.2d 663 (1995) ("When a court, in determining what the law -
statutory, decisional, or constitutional - is or should be, takes judicial notice of
certain facts, it is taking judicial notice of legislative facts").
The application's inclusion of additional soils information - an Order 1 soil survey
- obtained by a person pursuant to ORS 215.211 and OAR 660-033-0030(5), in
no way nullifies the official NRCS soil capability classifications for the subject
property. The additional soils information "does not otherwise affect the process
by which a county determines whether land qualifies as agricultural land." ORS
215.211. The NRCS National Soil Survey Handbook states that ..Order 1 soil
surveys and site -specific data collected are supplements to the official soil
survey, but they do not replace or change the official soil survey." Exhibit 3.
The applicant's additional soil information could be used to identify "land in other
soil classes that is suitable for farm use," OAR 660-033-0020(1)(a)(B), but cannot
nullify or otherwise make void the official NRCS soil capability classifications for
the subject property which are used to define agricultural land, OAR 660-033-
0020(1)(a)(A). The subject property is suitable for a variety of farm uses,
including grazing. It is a common practice in Central Oregon to rotate livestock
between pastures, and nothing prevents this 19-acre property that has water
rights from serving as seasonal rangeland. The Oregon Department of Land
Conservation and Development, Oregon Department of Agriculture, and Oregon
Department of Fish and Wildlife recently submitted a comment letter on a similar
application in Deschutes County where an applicant sought to rezone and
redesignate Goal 3- protected agricultural land. The state agencies describe the
many ways in which land of NRCS Class VI-VIII soils in Deschutes County can
be put to farm use, and how Goal 3's protections of agricultural land are not
limited to lands classified by the NRCS as Class I -VI. Exhibit 4.
In any event, the subject property both has been and is currently engaged in farm
use, proving its suitability for farm use. The applicant's own aerial photos of the
property clearly indicate irrigated crops being grown on tax lots 301 and 305.
Application Exhibit 1 at 1-2. These tax lots contain certificated water rights from
Central Oregon Irrigation District for agricultural irrigation use. Application Exhibit
4 at 1-2. Even though these water rights have been temporarily leased to
instream use, they can be returned to agricultural irrigation use on the subject
property at any time, further facilitating the agricultural suitability of the subject
property.
Even if not currently producing farm crops, the application describes the subject
property as "used for farm and other equipment service and storage facilities and
related outbuildings." Application at 4. Farm use of land includes the on -site
maintenance of equipment and facilities used for other farm activities, ORS
215.203(2), and thus the property is also currently engaged in farm use.
Goal 14
The application proposes allowing urban uses on rural land outside of an urban
growth boundary, which violates Goal 14. LUBA has articulated a test, using the
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 17 of 110
Exhibit "G" to Ordinance 2022-011
Shaffer factors, to determine whether a specific use is urban or rural. The
applicant here has not met its burden to show the application meets the relevant
Shaffer factors. Shaffer v. Jackson Countv,17 Or LUBA 922 (1989); Columbia
Riverkeeper v. Columbia Countv, 70 Or LUBA 171 (2014). Instead, the applicant
seeks a zone change to Rural Industrial which would allow a wide variety of
industrial uses at any point in the future, but fails to analyze whether those
industrial uses would be urban or rural under the Shaffer factors.
The County's RI zone, including its allowed uses, was acknowledged when the
comprehensive plan limited the zone to exception areas that were committed to
urban uses. Thus the RI Zone and its allowed uses are not per se rural. Without
a showing that all of the allowed uses in the County's R[ zone are rural using the
Shaffer factors, and application fails to comply with Goal 14.
The application also seeks an "irrevocably committed" exception to Goal 14.
However, a local government may only adopt an exception to a goal when the
land is irrevocably committed to uses not allowed by the applicable goal because
those uses are impracticable. OAR 660-004- 0028(1). As described above, the
subject properly is agricultural land by definition, and it has been and currently is
employed for rural farm uses. Agricultural uses allowed by Goal 3 are not
impracticable, and thus the applicant's burden for a goal exception to Goal 14 is
not met- OAR 660-004-0028(3)(a). The surrounding area also includes several
properties in agricultural use, making the relationship between the property and
"exception area" and "adjacent lands" no [sic] irrevocably committed. OAR 660 -
004-0028(2)(b) -(c).
Relatedly, the subject property is not irrevocably committed to urban uses,
making the exceptions process outlined at OAR 660-014-0030 unavailable.
DCC 18.120.010 Nonconforming uses
The DCC, at DCC 18.120.010, states that "(n]o nonconforming use or structure
may be resumed after a one-year period of interruption or abandonment unless
the resumed use conforms with the provisions of DCC Title 18 in effect at the
time of the proposed resumption." This application repeatedly asserts that its
nonconforming uses have been operated continuously since the 1970s to justify
several of the relevant approval criteria. However, the application includes no
evidence of continuous operation without any one-year gaps. LandWatch
concurs with the staff report that such evidence is also required to support the
application's request for an "irrevocably committed" goal exception, and that a
non -conforming use verification is required to establish that the present and
historic uses of the property were lawfully established and continued without
alteration, abandonment, or interruption.
DCC 18.136.020 Rezoning Standards
This application may seek to serve the landowner's private interest by increasing
the development potential of the subject properly. It will not, however, serve the
public interest, which would be harmed by the removal of the County's
agricultural land base; increased noise, traffic, and pollution in a rural area; and
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 18 of 110
Exhibit "G" to Ordinance 2022-011
marked public safety risks imposed by allowing industrial uses and their
concomitant traffic and pollution along an open water way and state highway.
Such harms to the public interest mean noncompliance with the County's
rezoning standards at DCC 18.136.020: [quotation of code omitted]
As for DCC 18.136.020(D), there has been no change in circumstances since the
properly was last zoned. The applicant states that the current uses on the
property have been in operation for the majority of the past 40 years. Application
at 14, 37. The soils and agricultural suitability of the subject property have also
not changed since it was planned and zoned for agricultural use by the County.
There has further been no mistake in the current EFU zoning of the subject
property. The County embarked on legislative efforts in both 2014 and 2019 to
establish that errors exist in its EFU zoning designations, but concluded both
times that no such errors exist. In 2015, the County consulted with Jon Andersen,
who was a Senior Planner, and later became the Community Development
Department Director, when the County developed its first comprehensive plan.
Mr. Andersen confirmed that none of the County's agricultural land designations
were made in error. Exhibit 5 (January 15, 2015 Deschutes County Community
Development Department notes from phone conversation with John Andersen).
DLCD also commented to the County at the time that it was "unable to determine
the nature and scope of the mapping error" of agricultural land designations.
Exhibit 6 (January 8, 2015 DLCD letter).
Conclusion
This application requests to convert 19 acres of agricultural land to allow urban,
industrial uses, and fails to comply with Goals 3 and 14 as well as provisions of
the Deschutes County Code. The property is rural, agricultural land and has not
been proven to be irrevocably committed to urban uses. LandWatch respectfully
requests this application be denied' We also request the record be left open for
14 days to accommodate additional written comment on this very complex land
use application.
1000 Friends of Oregon, through Dan Lawler, Rural Lands Senior Attorney, also submitted
public comment in opposition to the applications on April 26, 2022:
Dear Hearings Officer,
Thank you for the opportunity to provide testimony on the comprehensive plan and
zoning map amendment application identified as App 247-21-000881-PZ, 882-Z
(the "Rezone'). The following testimony is submitted by 1000 Friends of Oregon.
1000 Friends of Oregon is a nonprofit membership organization that works with
Oregonians to support livable urban and rural communities, protect family farms,
forests and natural areas; and provide transportation and housing choices. We
have members in all parts of Oregon, including Deschutes County.
1000 Friends of Oregon requests that the Hearings Officer include this letter in the
record for the April 26, 2022 hearing and that the county send any notices related
to the Rezone to danAfriends.orq and andrewanfriends.orq. 1000 Friends of
Oregon also requests a 14-day open records period following this hearing to
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 19 of 110
Exhibit "G" to Ordinance 2022-011
provide the public with more time to review the lengthy application materials and
staff report.
1000 Friends recommends that the Hearings Officer deny the Rezone because the
application fails to demonstrate compliance with approval criteria for amendments
to comprehensive plan and zoning designations. More specifically, the staff report
and application do not demonstrate that the subject property is not agricultural land
under Goal 3 or that the proposal complies with Goal 14. The following paragraphs
provide more detail on 1000 Friends' concerns.
The Subject Property is Agricultural Land Under Goal 3
1000 Friends recommends that the Hearings Officer deny the Rezone because the
subject property qualifies as agricultural land under Goal 3 and, thus, an exception
to Goal 3 is required to change the property's comprehensive plan and zoning
designations. First, the application and staff report fail to adequately consider
potential use of the 31A soils on the subject property.
When irrigated, 31A soils are categorized within Class Ill, which is productive and
valuable for farm use. While the applicant claims that irrigation is not available to
the subject property, the property is within Central Oregon Irrigation District
boundaries and neither the application nor the staff report explain why the property
owner can't work with the District to obtain water. Further, while the applicant may
plan to continue to lease the property's water rights, neither the application nor the
staff report explain why the property owner is unable to use the water rights for
agriculture. The application and staff report also fail to explain why the property
owner is unable to utilize a water distribution system to irrigate the property using
the Pilot Butte Canal. Therefore, the Hearings Officer should deny the Rezone
because the application and staff report fail to adequately consider use of irrigated
31A soils and do not demonstrate that the property is not agricultural land.
The application and staff report also fail to adequately consider whether the subject
property can be used for grazing. While the applicant argues that the property is
not suitable for grazing due to poor soils, both 388 and 58C soils can support
viable grazing operations. The applicant's calculations regarding profitability of
cattle grazing on the property fail to analyze its potential use with rotational
grazing, which is a common practice in Central Oregon. Rotational grazing slows
consumption of forage on pastureland by allowing animals to graze on a number
of properties throughout the year. If the subject property was used for rotational
grazing, rather than as the only location for grazing, it could likely support a greater
number of cattle and make a potential grazing operation more profitable. However,
the applicant's analysis fails to consider this possibility. Thus, the Hearings Officer
should deny the Rezone because the application and staff report fail to
demonstrate that the property is unsuitable for grazing and that the land is not
protected under Goal 3.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 20 of 110
Exhibit "G" to Ordinance 2022-011
The Application Does Not Satisfy Goal 14
As an initial matter, the Shaffer factors are not appropriate for determining whether
the Rezone makes the property urban or rural in the context of Goal 14. As Page
14 of the Staff Report acknowledges, Shaffer v. Jackson County, 16 Or LUBA 871
(1988), involved a map amendment for an asphalt batch plant — a specific use —
subject to that application. Because the specific use of the property was known in
those proceedings, the county could evaluate the map amendment to determine
the number of workers, dependence on site -specific resources, suitability of the
use to a rural area, and reliance on public facilities and services. In this case,
however, the applicant is not applying for development of a specific use on the
property. While the applicant states that it intends to build a mini -storage facility
and to continue equipment repairs on -site, nothing requires the applicant to follow
through on that plan. Instead, the applicant could use the property for any land
uses permitted in the Rural Industrial zone after the property's comprehensive plan
and zoning designations change. Thus, 1000 Friends urges the Hearings Officer
not to use the Shaffer framework for analysis of Goal 14 because the eventual use
of the property is uncertain, making it impossible to determine whether the Shaffer
factors are satisfied.
Next, the applicant's argument that the application does not require an exception
to Goal 14 is not supported by substantial evidence. The applicant states that the
Rezone "should not require a Goal exception because the County's RI zoning
complies with Goal 14 by ensuring areas with this zoning remain rural by limiting
the uses allowed." Staff Report Page 57. This statement is a mere assertion that
lacks evidentiary support. To show with substantial evidence that the Rezone does
not facilitate urban use of the property, the applicant and county must evaluate
whether the uses permitted outright and conditionally in the Rural Industrial zone
are urban or rural in nature. The use -by -use analysis is especially important here
because the Rural Industrial zone was adopted when the comprehensive plan
limited the zone to exception areas, meaning that the uses in that zone did not
have to be rural in nature to be allowed in such areas. However, the subject
property is not in an exception area and thus, analysis of the uses in the Rural
Industrial zone is necessary to determine whether the Rezone facilitates urban or
rural use of the property.
The applicant's alternative argument that the area is irrevocably committed to uses
not allowed under the applicable goal is not supported by substantial evidence and
does not demonstrate compliance with OAR 660-004-0028(2)(a). As discussed
earlier in this letter, the applicant has not demonstrated that the property is not
protected agricultural land and thus, the characteristics of the land (suitability for
grazing, presence of Class III soils when irrigated, and possibility of irrigation)
indicate that the property could be used for agriculture. Further, the applicant fails
to explain why the presence of a couple small structures that cover a small
percentage of the property make agriculture impossible or impracticable. Nothing
prevents the property owner from removing the structures and using the soil
underneath to supporting grazing operations. The applicant's statement that the
existing improvements on and past use of the property irrevocably commit the
property to non -farm use are mere assertions that lack the support of substantial
evidence.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 21 of 110
Exhibit "G" to Ordinance 2022-011
In addition, the applicant's description of the characteristics of adjacent lands
under OAR 660-004-0028(2)(b) conflicts with staff's findings regarding such lands.
On Page 66 of the Staff Report, the applicant states that neither Tax lot 300 or 306
are used for active farming, while staff notes that both of these properties appear
to be in farm use and receive farm tax assessments. The applicant cites nothing
to support its assertion that farming does not occur on these properties, while the
county cites aerial photography and farm tax assessments for its position. Thus,
substantial evidence in the record suggests that the characteristics of some
adjacent lands are rural and agricultural in nature and that the subject property is
not irrevocably committed to non -rural uses. The Hearings Officer should deny the
Rezone because the applicant dos not support its findings for OAR 660-004-
0028(2)(b) with substantial evidence and, in fact, evidence in the record
undermines the applicant's position.
As an additional point, the assertion that the property is irrevocably committed to
use as "an equipment service/repair and rental/sales facility" undermines the
applicant's argument that uses on the property will be rural after the Rezone. The
argument regarding irrevocably committed exceptions relies on the notion that the
property has not been and will not be used for rural purposes. Further the
commercial nature of service, repair, rental, and sales facilities indicates that the
use is more urban than rural. The applicant's arguments on these points conflict
and thus, the Hearings Officer should reject the applicant's Goal 14 arguments for
lack of substantial evidence.
NOTICE REQUIREMENT: On April 1, 2022, the Planning Division mailed a Notice of
Public Hearing to all property owners within 750 feet of the subject property and agencies.
A Notice of Public Hearing was published in the Bend Bulletin on Friday, April 1, 2022.
Notice of the first evidentiary hearing was submitted to the Department of Land
Conservation and Development on March 15, 2022.
REVIEW PERIOD: The subject application(s) were submitted on September 30, 2021,
and deemed incomplete by the Planning Division on October 28, 2021. Upon the
Applicant's confirmation that no further information or materials would be provided in
response to the County's incomplete letter, the subject applications were deemed
complete on March 7, 2022. According to Deschutes County Code 22.20.040(D), the
review of the proposed quasi-judicial plan amendment and zone change application is not
subject to the 150-day review period.
III. FINDINGS & CONCLUSIONS
In order to approve the comprehensive plan amendment and zone change request, the
proposal must comply with the criteria found in statutes, statewide planning goals and
guidelines and their implementing administrative rules, County comprehensive plan, and
land use procedures ordinance. Each of these approval criteria is addressed in the
findings below.
The Hearings Officer sets forth the following Preliminary Findings and Conclusions on the
key issues in these applications below. These Preliminary Findings and Conclusions are
incorporated by reference, as if fully set forth therein, in the analysis of individual criteria.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 22 of 110
Exhibit "G" to Ordinance 2022-011
A. PRELIMINARY FINDINGS AND CONCLUSIONS
1. HEARINGS OFFICER'S FINDINGS AND CONCLUSIONS REGARDING
USE OF ORDER 1 SOILS SURVEY
In 1979, Deschutes County adopted its first comprehensive plan and zoning ordinance
that implemented the Statewide Land Use Planning Goals. The County's comprehensive
plan map was developed without the benefit of detailed soils mapping information. The
map was prepared and EFU zoning was applied to the subject property prior to the
USDA/NRCS's publication of the "Soil Survey of Upper Deschutes River Area, Oregon."
That soil survey provides general soils information, but not an assessment of soils on each
parcel in the study area.
The NRCS soil survey maps are Order II soil surveys, which extrapolate data from the
Upper Deschutes River Survey to determine LCC soil classifications at a landscape level.
The Applicant's soil scientist conducted a more detailed Order I survey, which analyzed
actual on -the -ground soil compositions on the subject property. The Hearings Officer finds
that Order I soils surveys may contradict NRCS soil classifications performed at a higher,
landscape level.
The argument advanced by COLW that an Order I survey cannot contradict NRCS soil
survey classifications for a particular property has been rejected by the Oregon Legislature
in ORS 215.211(1) and DLCD in OAR 660-033-0030. It has also been rejected by
Deschutes County Hearings Officers and the Board of County Commissioners.
ORS 215.211(1) and (5) and the implementing regulations in OAR 660-033-0030,
specifically and intentionally permit a more detailed soil analysis (an Order I Soil Survey)
to be used when determining whether a specific property should qualify as agricultural
land. The Applicant opted to provide more detailed Order I Soil Surveys prepared by
Kitzrow, who is a Certified Professional Soil Classifier. Exs. 7-9 to Burden of Proof.
In recent years, Deschutes County has recognized the value in rezoning non -productive
agricultural lands and has issued decisions approving plan amendments and zone
changes where the applicant has demonstrated the property is not agricultural land.
Deschutes County has approved the reclassification and rezoning of EFU parcels based
on data and conclusions set forth in Order I soils surveys and other evidence that
demonstrated a particular property was not "agricultural land," due to the lack of viability
of farm use to make a profit in money and considering accepted farming practices for soils
other than Class I -VI. See, e.g., Kelly Porter Burns Landholdings LLC Decision/File Nos.
247-16-000317-ZC/318-PA; Division of State Lands Decision/File Nos. PA-11-7 and ZC-
11-2; Paget Decision/File Nos. PA-07-1, ZC-07-1; The Daniels Group/File Nos. PA-08-1,
ZC-08-1; Swisher Decision/File Nos. 247-21-000616-PA/617-ZC. The Board of County
Commissioners recently affirmed the Hearings Officer's decision in the Swisher files and
adopted Ordinance No. 2022-003.
On the DLCD website, it explains:
NRCS does not have the ability to map each parcel of land, so it looks at larger
areas. This means that the map may miss a pocket of different soils. DLCD has a
process landowners can use to challenge NRCS soils information on a specific
property. Owners who believe soil on their property has been incorrectly mapped
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 23 of 110
Exhibit "G" to Ordinance 2022-011
may retain a "professional soil classifier ... certified and in good standing with the
Soil Science Society of America (ORS 215.211) through a process administered
by DLCD. This soils professional can conduct an assessment that may result in a
change of the allowable uses for a property.
The Hearings Officer agrees with the Applicant's final legal argument, submitted on June
14, 2022, which states, in relevant part at page 2:
This statutory and regulatory scheme makes sense, as it would have been
impracticable for a county to have conducted an individualized soils analysis on a
farm -by -farm basis when it adopted its original zoning ordinances. Precluding the
availability of a property owner to achieve a new zoning designation based upon a
superior, more detailed and site -specific soils analysis would, to put it mildly, be
absurd and cannot be what the legislature intended.3
Kitzrow explained and discussed the original intended uses of both Order I and Order III
soil studies in his May 22, 2022 testimony:
"Order I Soil Surveys are site -specific and have a high confidence interval and
specificity. In other words, while Order Ill USDA soil surveys (published at
1:24,000) are a foundation for soil series/map unit concepts in the general area
under review our current maps for this Order I Soil Survey are inventoried at a
scale of 1:831 and 1:738 for this site -specific report In fact, in the original USDA
map cited in our original report and henceforth sanctioned by the DLCD, it says
right in the notation for the actual enclosed soil map, "Soil Map may not be valid
at this scale" which it is not in this particular case. * * * Soil series concepts for
the subject area in the USDA report are certainly valid and based upon solid Soil
Survey principles, however, the actual soil map units, distribution and
quantification of each unit is not always valid at this very detailed site -specific
finite land base. This is a major distinct between Order I and Order 111 Soil
Surveys. Order I Soil Surveys are represented by a scale reflective of the very
small land base under consideration. Order 111 Soil Surveys are general in nature
since their intended use is for agriculture, ranching and forest management and
not for land use decisions and rezoning considerations. Given these facts
above, our current Order 1 Soil Survey is, in fact, a REPLACEMENT and
NOT a supplement for the subject properties regarding soil map and
Capability Class/Soil Efficacy considerations."
Exhibit A (emphasis in original).
The Soil Survey of the Deschutes Area, Oregon4 describes Class VII soils as "not suitable
for cultivation and of severely limited use for pasture or as woodland." It describes Class
VIII soils as "not suitable for growing vegetation for commercial uses." The Soil Survey of
Upper Deschutes River Area, Oregon describes the broad, general level of soil surveying
completed by NRCS on page 16, "At the less detailed level, map units are mainly
associations and complexes. The average size of the delineations for most management
purposes was 160 acres. Most of the land mapped at this level is used as woodland and
rangeland. At the more detailed level, map units are mainly consociations and
3 The stated public purpose of the EFU zone is to preserve "Agricultural Lands" (ORS 215.243) but
"Agricultural Lands" are not present on the subject property.
4 https://www.nres.usda.gov/Internet/FSE_MANUSCRIPTS/oregon/OR620/0/or620_text.pdf
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 24 of 110
Exhibit "G" to Ordinance 2022-011
complexes.... Most of the land mapped at the more detailed level is used as irrigated and
nonirrigated cropland."
As quoted in the Hearings Officer's Decision and Recommendation to the Deschutes
County Board of Commissioners in the Swisher decision, File Nos. 247-21-000616-
PA/617-ZC:
The real issue is "map accuracy" which is based upon set standards for maps.
National Map Accuracy Standard (NMAS) provides insurance that maps conform
to established accuracy specifications, thereby providing consistency and
confidence in their use in geospatial applications. An example of such a standard:
"maps on publication scales larger than 1:20,000, not more than 10 percent of the
points tested shall be in error by more than 1/30 inch, measured on the publication
scale; for maps on publication scales of 1:20,000 or smaller, 1/50 inch." The error
stated is specific for a percentage of points, and to suggest that accuracy in maps
is the unattainable freedom from error as the COL letter does, is not a relevant or
a serious argument.
When one map shows point data like an Order-1 soil survey the accuracy can be
measured, and when another map does not (like the NRCS soil map) there is a
shortage of information, so the accuracy of the NRCS map cannot be determined
for point data. The accuracy of the NRCS estimate of the percentage of
components in the 388 soil complex can be shown to be very inaccurate in this
case, and it clearly underestimates the Class 7 and Class 8.
The Hearings Officer finds that NRCS soil survey maps are not definitive or "binding" with
respect to a determination of whether the subject property is, or is not, agricultural land.
This is consistent with the ruling of the Land Use Board of Appeals (LUBA) in Central
Oregon Landwatch v. Deschutes County (Aceti), Or LUBA (LUBA NO. 2016-
012, August 10, 2016 (Aceti I). There, LUBA confirmed that OAR 660-033-0030(5)(a) and
(5)(b) allow the County to rely on more detailed data on soil capability than provided by
NRCS soil maps to define agricultural land, provided the soils survey has been certified
by DLCD, which has occurred here. It found that the County's reliance on the applicant's
more -detailed soils analysis prepared by a soil scientist supported a finding that the
property was "nonagricultural land" even though the NRCS soil study mapped it as high -
value farmland.
The Aceti ruling is summarized as follows:
LUBA found that it was appropriate for Deschutes County to rely on a site -
specific soils survey prepared by soils scientist Roger Borine to find that a
majority of the property is comprised of Class Vll and VIII soils rather than on
information provided by the NRCS Soil Survey. LUBA noted that the NRCS's
maps are intended for use at a higher landscape level rather than on a property -
by -property basis.
First, LUBA affirmed the County's determination that the subject property, which had been
irrigated and used to grow hay in 1996 and earlier years, was not agricultural land based
on the Order 1 soils survey which showed that the poor soils on the property are Class VII
and VIII soils when irrigated, as well as when not irrigated.
Second, LUBA determined the applicant had established that the subject property was not
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 25 of 110
Exhibit "G" to Ordinance 2022-011
"agricultural lands," as "other than Class I -VI Lands taking into consideration farming
practices." LUBA ruled:
"It is not an accepted farm practice in Central Oregon to irrigate and cultivate poor
quality Class VIl and VIII soils — particularly where, as here those soils are adjacent
to rural industrial uses, urban density residential neighborhoods that complain
about dust and chemicals and to high traffic counts on the surrounding roads and
highways. Irrigating rock is not productive."
The Hearings Officer also rejects the argument that NRCS land classifications based on
its soil maps cannot be varied, unless a landowner requests an Order 1 soils study to
qualify additional land as agricultural land. This is directly contrary to LUBA's holding in
Central Oregon Landwatch v. Deschutes County and Aceti, LUBA No. 2016-012:
"The Borine Study is evidence a reasonable person would rely on and the county
was entitled to rely on it. As intervenor notes, the NRCS maps are intended for use
at a higher landscape level and include the express statement `Warning: Soil
Ratings may not be valid at this scale.' Conversely, the Borine Study extensively
studied the site with multiple on -site observations and the study's conclusions are
uncontradicted, other than by petitioner's conclusions based on historical farm use
of the property. This study supports the county's conclusion that the site is not
predominantly Class VI soils."
ORS 215.211(1) specifically allows for the submittal by a certified soil scientist of an
assessment of the capability of the land based on more detailed soils information than that
contained in the Web Soil Survey operated by the NRCS to "assist a county to make a
better determination of whether land qualifies as agricultural land." The Applicant followed
this procedure by selecting a professional soil classifier who is certified by and in good
standing with the Soil Science Society of America to prepare the Order 1 soils report.
DLCD reviewed the soils report pursuant to ORS 215.211(2) and determined it could be
utilized in this land use proceeding. The Hearings Officer finds that the law is settled when
it comes to an applicant's ability to rely on an Order I Soil Survey such as the surveys
prepared by Kitzrow in this matter.
The Hearings Officer agrees that soils classifications are not the only determining factor
with respect to whether a parcel is "agricultural land." The Hearings Officer's findings on
all relevant factors to be considered in determining whether the subject property is
"agricultural land," are set forth in detail below.
For all the foregoing reasons, the Hearings Officer finds that the County is not bound by
the landscape level NRCS Order II study on which classification of soils on the subject
property is based. The Hearings Officer finds it is appropriate for the County to consider
the Applicant's Order I soils survey, certified for the County's consideration by DLCD.
2. HEARINGS OFFICER'S FINDINGS AND CONCLUSIONS REGARDING
WHETHER THE SUBJECT PROPERTY IS "AGRICULTURAL LAND"
For purposes of this Decision and Recommendation, the Hearings Officer considers the
definition of "Agricultural Land," in OAR 660-033-020(1)(a), as defined in Goal 3, which
includes:
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 26 of 110
Exhibit "G" to Ordinance 2022-011
(A) lands classified by the NRCS as predominantly Class I -VI soils in Eastern
Oregon;
(B) Land in other soil classes that is suitable for farm use as defined in ORS
215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic
conditions; existing and future availability of water for farm irrigation purposes;
existing land use patterns; technological and energy inputs required; and accepted
farming practices; and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent
or nearby agricultural lands.
a. OAR 660-033-0020(1)(a)(A) Findings and Conclusions
The first prong defines "agricultural land" to include soils classified predominantly as Class
I -VI in Eastern Oregon.5 The subject property meets this definition, but it is not controlling.
As the Hearings Officer found above, the County may rely on the DLCD-certified Order
soil survey submitted by the Applicant. That study shows that the soils on the subject
property are not predominantly Class I -VI soils. The Kitzrow Soil Surveys show that Lot
301 is comprised of 53.1% of Class VII and VIII soils, and that both Lot 500 and Lot 305
are comprised of 87.7% of Class VII and VIII soils. The County is entitled under applicable
law to rely on the Order I soils survey in these applications in making a determination that
the soils on the Subject Property are not predominantly Class I -VI soils. Kitzrow also
explained in his Soil Surveys that the addition of irrigation waters will not improve the
growing of farm crops on most of the site. No evidence was presented to rebut this
evidence.
The Hearings Officer finds that the more detailed, onsite soil study submitted by the
Applicant provides property -specific information not available from the NRCS mapping.
There is no evidence in the record to rebut the Applicant's soils study. Therefore, the
Hearings Officer finds that the subject property does not constitute "agricultural land"
under OAR 660-033-0020(1)(a)(A).
b. OAR 660-033-0020(1)(a)(C) Findings and Conclusions
No party has argued that the subject property is necessary to permit farm practices on
nearby lands under this subsection, and no evidence has been submitted that any "farm
use" on surrounding properties has depended upon use of the subject property to
undertake farm practices. There is no showing that the subject property is necessary for
farming practices on any surrounding agricultural lands. There is no evidence that the
subject property contributes to any such practices, nor that other lands depend on use of
the subject property to undertake any farm practices.
The Hearings Officer finds there is no evidence in the record that the subject property is
"land that is necessary to permit farm practices to be undertaken on adjacent or nearby
agricultural lands. Questions concerning the "impact on adjacent or nearby agricultural
lands," do not answer the inquiry of whether the subject property is "necessary to permit
farm practices to be undertaken on adjacent or nearby agricultural lands." OAR 660-033-
0020(1)(a)(C).
5 Eastern Oregon is defined at OAR 660-033-0020(5) to include Deschutes County.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 27 of 110
Exhibit "G" to Ordinance 2022-011
For these reasons, the Hearings Officer finds that the subject property does not constitute
"agricultural land" under OAR 660-033-0020(1)(a)(C).
c. OAR 660-033-0020(1)(b) Findings and Conclusions
The Hearings Officer finds there is no evidence in the record that the subject property is
adjacent to or intermingled with lands in capability classes I -VI within a farm unit.
Therefore, the Hearings Officer finds that the subject property does not constitute
"agricultural land" under OAR 660-033-0020(1)(b). Specific findings on each applicable
criterion are set forth in Section III(B) of this Decision and Recommendation.
d. OAR 660-033-0020(1)(a)(B) Findings and Conclusions
The Hearings Officer reviews evidence in the record to determine whether the subject
property constitutes "agricultural land" under OAR 660-033-0020(1)(a)(B) as "Land in
other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking
into consideration soil fertility; suitability for grazing; climatic conditions; existing
and future availability of water for farm irrigation purposes; existing land use
patterns; technological and energy inputs required; and accepted farming
practices." (emphasis added). Competing evidence was presented by the Applicant,
COLW and 1000 Friends of Oregon.
This provision acknowledges that, even if a property is comprised of poor soils (aka "Land
in other soil classes" that are not classified I -VI in Eastern Oregon), it may nonetheless be
"suitable for farm use" under one or more of the seven considerations set forth in OAR
660-033-0020(1)(a)(B). In other words, if any of the seven considerations are such that
they compensate for the poor soils on a property and render such property "suitable
for farm use," - employment for the primary purpose of obtaining a profit in money - that
property is determined to constitute agricultural land.
OAR 660-033-0020(1)(a)(B) begins with the statutory definition of "farm use" in ORS
215.203(2)(a) which informs the determination of whether a property is "suitable for farm
use." The Hearings Officer finds that the critical question, in analyzing the seven
considerations, is whether any of those considerations essentially improve the conditions
on the subject property — poor soils notwithstanding - to a point that it can be employed
for the "primary purpose of obtaining a profit in money by raising, harvesting and
selling crops or the feeding, breeding, management and sale of, or the produce of
livestock, poultry, fur -bearing animals or honeybees or for dairying and the sale of dairying
products or any other agricultural or horticultural use or animal husbandry or any
combination thereof." ORS 215.203(2)(a) (emphasis added). Aerial photograph evidence
of past irrigation of the subject property is not dispositive without evidence that the property
was irrigated and engaged in "farm use," for the primary purpose of obtaining a profit in
money." There is no such evidence; rather, the aerial photographs evidence shows site
condition
"Farm use" is not whether a person can engage in any type of agricultural or horticultural
use or animal husbandry on a particular parcel of property. It is informed by whether such
use can be made for the primary purpose of obtaining a profit in money. Therefore, the
Hearings Officer rejects the argument that the subject property is "capable of any number
of activities included in the definition of farm use," because "farm use" as defined by the
Oregon Legislature "means the current employment of land for the primary purpose
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 28 of 110
Exhibit "G" to Ordinance 2022-011
of obtaining a profit in money." ORS 215.203(2)(a); see also Goal 3. This is a critical
omission by commentators in opposition to the applications in their submissions.
Speculation about whether the property could employ greenhouses, goat grazing, plant
nurseries and the like is not enough. There are many properties in Central Oregon that
are not engaged in "farm use," but on which agricultural activities take place. However,
the idea that a person who owns EFU-zoned property with poor soils is essentially limited
to use their property for hobby farm type activities is not supported by the law.
The Hearings Officer finds that the definition of "farm use" in ORS 215.203(2)(a) refers to
"land," - not "lands," - and does not include any reference to "combination" or requirement
to "combine" with other agricultural operations for grazing rotation, or the like. Therefore,
if the subject property, in and of itself cannot be engaged in farm use for the primary
purpose of obtaining a profit in money, it does not constitute agricultural land. There is no
requirement in ORS 215.203(2)(a) or OAR Chapter 660-033 that a certain property must
"combine" its operations with other properties in order to be employed for the primary
purpose of obtaining a profit in money and thus, engaged in farm use.
What the statutory definition of "farm use" means is that, merely because a parcel of
property is zoned EFU and some type of agricultural activity could take place on it, or
whether the property owner could join forces with another agricultural operations, does
not mean that a property owner is forced to engage in agricultural activity if the property
owner cannot use its own property for farming to obtain a profit in money. This is so,
whether the barrier to obtaining a profit in money is due to soil fertility, suitability for
grazing, climactic conditions, existing and future irrigation rights, existing land use
patterns, technology and energy inputs required and accepted farming practices, any or
all of these factors. In short, "farm use" under the statutory definition means more than just
having a cow or horses, growing a patch of grapes, or having a passion for rural living. An
owner must be able to obtain a profit in money for any use to be considered "farm use."
The Hearings Officer finds that the list of considerations in OAR 660-033-0020(1)(a)(B) in
determining whether land in other soil classes are "suitable for farm use," are considered
in relation to one another. No one consideration is determinative of whether a property
with poor soils is nonetheless "suitable for farm use."
COLW argues that the subject property may be used for some agricultural purpose and
lists dozens of potential "agricultural commodities produced in Deschutes County,"
pursuant to the 2012 USDA Census. Without any information as to whether the agricultural
practices on properties in the vicinity of the subject property constitutes "farm use," in that
they make a profit in money from such uses, COLW relies on Humfleet's Nubian Dairy
Goats and Whistle Stop Farm and Flowers as examples. The Hearings Officer finds that
it is not enough to introduce evidence of agricultural use of other properties without
evidence of the profitability of such use. Speculation is not evidence, so an inference that
uses on other properties "must be profitable" is not enough. Such an inference does not
transfer to the subject property, either. Nor does it refute the substantial evidence in the
record that establishes it is impractical to engage in allegedly potential agricultural uses of
the subject property because one cannot make a profit in money from those uses.
Therefore, the record shows the property is not suitable for farm use.
The question is not whether an owner could engage in agricultural uses on a property; it
is whether it is impractical to attempt to make a "farm use" of the property, as the term is
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 29 of 110
Exhibit "G" to Ordinance 2022-011
defined in state law. The Hearings Officer finds that it is not an applicant's burden to prove
that no agricultural use could ever be made of a property. An applicant must prove that
the land is not suitable for farm use because one cannot employ the subject property with
the primary purpose of making a profit from any potential "agricultural use" of such
property.
Soil Fertility
Unrebutted evidence in the record establishes that the predominant soil type on all three
tax lots that comprise the subject property are Capability Class VII and VIII. Kitzrow
explained the Soil Surveys in Exhibit A, noting that the Class VII and VIII "Order I
delineations on Lot 301 will not benefit substantially from the addition of irrigation waters
hence the poor Capability Class rating." With regard to Lot 301, Kitzrow stated that the
property "does not have any farming opportunities" because "[o]nly two very small areas
are `undisturbed' on this lot dating back to before 1985. * * * The remainder of this property
has been highly altered, degraded and permanently debilitated. * * * A preponderance
(87.7%) of the 1.06 acs is comprised of Capability Class 7 and 8 soils. Irrigation will not
improve the growing of farm crops on most of the site." With regard to Lot 305, Kitzrow
concluded that the property "will not produce crops on a large majority of this lot" because
of "the proportion and degree of ancient site alteration and degradation dating back to
before 1985. * * * A preponderance (87.7%) of the 3.0 acs is comprised of Class 7 and 8
soils. Irrigation will not improve the growing of farm crops."
While COLW argued that soil fertility is not always necessary for commercial agricultural
operations because farm equipment could be and/or has been stored on the property, the
Hearings Officer finds that the subject property's resource capability is the proper
determination. The Applicant is not required to engage in joint management or use with
other lands that do constitute productive farm land. Moreover, storage and maintenance
of equipment is not, in and of itself, a farm use unless such equipment is for the production
of crops or a farm use on the subject property. Therefore, the Hearings Officer rejects the
arguments of COLW that certain uses of the subject property could be made that are not
dependent on soil type because none of the suggested uses constitute "farm use," without
any associated cultivation of crops or livestock.
Suitability for Grazing
The Applicant's burden of proof sets forth the following:
The primary agricultural use conducted on properties with poor soils is grazing
cattle. Given the high cost of irrigating and maintaining the property as pasture or
cropland (high labor costs, labor-intensive, high cost of irrigation equipment and
electricity, high cost of fertilizer, etc.), dry land grazing is the accepted farm use of
poor soils in Deschutes County.
However, the extremely poor soils found on the Subject Property prevent it from
providing sufficient feed for livestock for dryland grazing. That, the dry climate, the
proximity to Highway 97, and area development prevent grazing from being a
viable or potentially profitable use of the Subject Property. The soils are so poor
that they would not support the production of crops for a profit.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 30 of 110
Exhibit "G" to Ordinance 2022-011
When assessing the potential income from dryland grazing, Deschutes County
uses a formula and assumptions developed by the OSU Extension Service. This
formula is used by the County to decide whether EFU-zoned land is generally
unsuitable for farm use.
• One AUM is the equivalent to the forage required for a 1000 Ib. cow and
calf to graze for 30 days (900 pounds of forage)
• On good quality forage, an animal unit will gain 2 pounds per day
• Two animal units will eat as much in one month as one animal unit will eat
in two months.
• Forage production on dry land is not continuous. Once the forage is eaten,
it generally will not grow back until the following spring.
• An average market price for beef is $1.20 per pound.
Based on these assumptions, the value of beef production on the entire subject
property can be calculated using the following formula:
30 days x 2#/dav/acre = 60.0 lbs. Beef/acre
(1 acre per AUM)
60.0 lbs. Beef/acre x 19.12 acres x $1.20/Ib. = $1,382.40 per year gross income
Thus, the total gross beef production potential for the Subject Property would be
approximately $1,382.40 annually. This figure represents gross income and does
not take into account real property taxes, fencing costs, land preparation, purchase
costs of livestock, veterinary costs, or any other costs of production, which would
exceed income. In addition, as the Subject Property abuts a busy state highway,
the cost for liability insurance due to the risk of livestock escape and the potential
for a vehicle/livestock accident, would likely be expensive
While COLW argued that neighboring Humfleet's Nubian Dairy Goats (the "Humfleet
Property") is evidence that the Applicant could undertake a similar agricultural use on the
subject property, there is no evidence that the Humfleet Property is a for -profit goat farm,
or that the primary purpose of the Humfleet Property is "obtaining a profit in money" from
such operation, under the "farm use" definition in ORS 215.203(2)(a).
COLW also assumed, without evidence, that the Humfleet Property has "lower quality
[soils] compared to the subject properties." This assumption is based only on NRCS soil
data and ignores the Order I Soil Surveys of the subject property in the record. There is
no Order I soil survey of the Humfleet Property from which to make a valid comparison of
the quality of soils.
COLW ignored the location and characteristics of the subject properties in its comparison,
as well. Unrebutted evidence in the record shows that Tax Lot 500 is adjacent to Highway
97, which is the busiest stretch of highway in Central Oregon, is covered in gravel and has
an old building in the middle of the parcel. There is no evidence that growing crops or
raising livestock on this parcel is, or could be, viable — only speculation. Tax Lot 305 is
developed with a large building and gravel covers most of the remaining land. Tax Lot 301
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 31 of 110
Exhibit "G" to Ordinance 2022-011
is only 400 feet at its widest point, and includes an irrigation ditch and easement, which
takes up a substantial portion of the narrow lot.
The current owner of Tax Lot 301, Dwight Johnson, explained that the subject properties
do not have comparable attributes to the Humfleet Property, including barns suitable for
livestock, a working irrigation system (including an irrigation pond and irrigation hand lines)
and mature grass pastures. The Humfleet Property is not compromised by an irrigation
district easement that renders a significant portion of the property useless, unlike the
subject property, which has an easement that borders its east side. Finally, the Humfleet
Property borders BLM land, which is undeveloped and does not present conflicting
neighboring uses, unlike the neighboring residential properties to the subject property.
Johnson not only owns Tax Lot 301, but also Bend Soap Company, a successful goat
operation in Central Oregon. He submitted a letter to the record (Exhibit QQ) that lists
numerous reasons including the poor soils, small parcel sizes, parcel configuration, high
costs of fencing and irrigation improvements and proximity to neighboring residential
developments as evidence of why the subject property is not suitable for grazing. The
letter concludes by stating, "For the reasons provided above, the subject property is not
suitable for any agricultural uses and is specifically not suitable for raising goats." Because
the subject properties do not have the attributes of the Humfleet Property, he determined
that it will be far too expensive to construct similar improvements just to raise a few goats.
The lack of suitability of the subject property for dryland grazing as a viable or profitable
use of the subject property is established by substantial evidence in the record. The
Hearings Officer finds the Applicant has established that this factor has been established
by the Applicant for purposes of determining the subject property is not "agricultural land"
under OAR 660-033-020(1)(a)(B).
Climatic Conditions
There is little debate that climatic conditions contribute to the inability to engage in "farm
use" for the purpose of making a profit in money. Evidence in the record (Exhibit G, J and
K) show that climatic conditions on the subject property are challenging, and are likely to
get worse. The climate is extremely arid and receives very little rain or snow throughout
the year. The evidence shows that these conditions will continue to worsen as the "22-
year megadrought" conditions continue to impact the region. The poor soil conditions on
the subject property render the climatic conditions particularly impactful.
Whether or not other properties are engaged in agricultural use does not show that climatic
conditions do not preclude "farm use" on the subject property. This is so, combined with
the poor soils on the property and proximity to Highway 97. The relevant issue is whether
or not agricultural activities can be engaged in on the subject property for the purpose of
making a profit in money, considering climatic conditions. Substantial evidence shows that
they cannot.
The Hearings Officer finds the Applicant has established that climatic conditions on the
subject property are a factor in determining it is not "agricultural land" under OAR 660-
033-020(1)(a)(B).
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 32 of 110
Exhibit "G" to Ordinance 2022-011
Existing and Future Availability of Water for Farm Irrigation Purposes
Regarding existing and future availability for water for farm irrigation purposes,
commentators do not take into consideration whether any agricultural activities could be
utilized for the primary purpose of making a profit in money on the property, such that the
suggested agricultural activities constitute "farm use" under the statutory definition. There
is no evidence that the subject property could be used for any of the listed activities in
ORS 215.203(2)(a) for the primary purpose of obtaining a profit in money, whether or not
the property is irrigated.
The Applicant's burden of proof sets forth the following:
As explained above, two of the three Tax Lots comprising the Subject Property
have existing COID water rights, but they are leased to the Deschutes River and
no changes to that are planned for the future. The Pilot Butte Canal running along
the eastern portion of two of the Tax Lots comprising the Subject Property is not
sufficient to provide irrigation to the Subject Property. A Federal right of way exists
on the canal that goes to 50 feet at the toe of the canal. At its widest, the Subject
Property is 400 feet wide; even taking the 50 feet from the toe of the canal, at its
widest, it is 300 feet. This is insufficient for farming purposes, which is supported
by the fact that no historic farming use has been made. Finally, while a water
distribution system exists on the Subject Property, it has been effectively
extinguished by common ownership of Tax Lots 301 and 305.
The Applicant argues that the property's exiting irrigation rights, currently leased back and
not in use on the property, should not be considered in evaluating the property's potential
for agricultural uses. In its May 31, 2022 open record letter at page 4, the Applicant states:
As understood by the Applicant, staff's primary concern regarding Goal 3 stems
from irrigation water previously utilized on the Properties. Specifically, the Staff
Report clarifies that "Staff recognizes that the property may not be found to be
suitable for farm use regardless of the irrigation status, however, staff requests the
Hearings Officer make specific findings on question (sic) if the leased water rights
are unavailable to the property for the purposes of this analysis." (Page 38). Staff's
concerns are understandable in light of a 2014 land use decision issued by the
then Board of County Commissioners concerning property owned by NNP IV -NCR,
;LC (File No PA-13-1,. ZC-13-1; "Newland'). The Board in Newland opined that
"having irrigation water rights is the most important factor in farm usen throughout
the country. Farm use in Central Oregon is primarily dependent upon having water
to irrigate land for crops, hay, fields, pasture, and any other water dependent farm
use."
This case is easily distinguishable from the Newland matter. As clarified by the
preceding hearings officer's detailed analysis, the Newland property included soil
units which where [sic] Class VII when nonirrigated but Class Ill when irrigated.
Like the Newland property, the Applicant's irrigation water has consistently been
leased back for Deschutes River in -stream flows since 2016 as part of COID's
Instream Lease Program. See Exhibit B. But differing from the Newland property,
the irrigation water in this case is irrelevant to the soil classification. Exhibit A
clarifies that the predominate soil units on all three Properties are Class VII and VII
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 33 of 110
Exhibit "G" to Ordinance 2022-011
"even with supplemental irrigation water" and that "Irrigation does not improve most
of each property and therefore the lack of usable land is the governing factor when
considering the value and utility of each parcel."
With regard to Lot 301, Kitzrow concluded that the lot's "Class [VII] and [VIII] Order
I delineations will not benefit substantially from the addition of irrigation waters
hence the poor Capability Class rating." With regard to Lot 500, Kitzrow concluded
that "Irrigation will not improve the growing farm crops on most of the site." And
with regard to Lot 305, Kitzrow concluded that "Irrigation will not improve the
growing of farm crops. This site is permanently degraded and will not produce
crops on a large majority of this lot of record."
Regarding the Applicant's irrigation water specifically and Central Oregon's limited
water resources generally, the Applicant additionally submits Exhibits C to K to
the record.
The irrigation water on the subject property has been leased back each year since 2016
to improve Deschutes River in -stream flows. Exhibit B. This consideration alone is not
dispositive and further must be considered in light of unrebutted testimony of Kitzrow that
concludes the predominate soil type on the property is Class VII/Class VIII, even with
irrigation water, Exhibit A; Exhibits 7-9 to the Burden of Proof. The Hearings Officer finds
it is irrelevant whether if the leased water rights are available to the property for the
purposes of this analysis. The leased irrigation rights do not compensate for the poor soils
in a manner such that the subject property could be engaged in "farm use," for the primary
purpose of obtaining a profit in money. The Hearings Officer finds there is no evidence
that a reasonable farmer would expect to apply irrigation water to the poor soils on the
subject property (considering its size and location, as well) and still obtain a profit in money
from agricultural uses on the property, with or without existing irrigation rights.
Without any evidence to the contrary to refute the evidence submitted by the Applicant,
the Hearings Officer finds that the Applicant has established that existing and future
availability of water for farm irrigation purposes is a factor in determining the subject
property is not "agricultural land" under OAR 660-033-020(1)(a)(B).
Existing Land Use Patterns
The Applicant stated in its burden of proof that, "surrounding land use patterns also do not
support an agricultural use of the Subject Property. Much of the surrounding lands are
zoned residential and consist of a residential subdivision. Other surrounding land is zoned
open space / parks, and is not used for agricultural purposes. The land nearby zoned
EFU-TRB is not currently used for farming or other agricultural uses."
The Hearings Officer disagrees with the Applicant with respect to the last sentence quoted
from the burden of proof above. Some nearby properties are engaged in agricultural uses,
as evidenced by irrigation rights and farm tax deferral. However, there is no evidence as
to whether the agricultural use of such properties constitutes "farm use," for the primary
purpose of obtaining a profit in money. The property immediately to the north, while zoned
EFU, is vacant, without irrigation rights and is not currently receiving farm tax deferral. To
the south of the subject property is a parcel zoned Open Space and Conservation (OS&C),
owned and operated by the Oregon Parks & Recreation Department. Only properties to
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 34 of 110
Exhibit "G" to Ordinance 2022-011
the east of the subject property that are zoned EFU, are partially irrigated and receiving
farm tax deferral, while also having been developed with manufactured homes.
Nonetheless, the Hearings Officer finds that existing land use patterns are a factor in
determining the subject property is not "agricultural land" under OAR 660-033-
020(1)(a)(B). This is particularly so with the Highway 97 transportation corridor
immediately adjacent to the subject property to the east and southeast, and rural
residential uses to the west.. The record shows that, as traffic on Highway 97 has
increased and a flood of new residents have located to Central Oregon over the past 30-
40 years, farm land adjacent to the busy thoroughfare has been impacted by these
changes. Drought conditions persist in the region, as well. Surrounding areas have been
re -dedicated to rural residential use, as opposed to farming, and large farm tracts over 80
acres in size around the subject property do not exist.
The area is characterized by the heavily trafficked Highway 97 and a mix of rural
residential uses, vacant EFU property that lacks irrigation rights, a tract that is not currently
in use but is zoned OS&C, and resident -occupied, partially irrigated EFU parcels. There
are various non -farm uses in the area, including a number of non -farm dwellings. The
Hearings Officer finds that this determination does not ask whether the proposal is
"consistent with existing land use pattern," but instead asks whether, considering the
existing land use pattern, the property is agricultural land. I find that it does not.
The Hearings Officer finds the Applicant has established that existing land use patterns is
a factor in determining the subject property is not "agricultural land" under OAR 660-033-
020(1)(a)(B).
Technological and Energy Inputs Required
The Applicant's burden of proof states, "[g]iven the Subject Property has been not been
[sic] farmed in recent (or distant) history, and the land has been used for equipment
service and repair for at least 4 decades, farming the Subject Property at this time would
require immense investment in technological and energy inputs, including irrigation
systems, fertilization, and building proper infrastructure." Technological and energy inputs
required for agricultural use of the subject property also factor into the fact the property is
not suitable for "farm use," because it cannot be so employed for "primary purpose of
obtaining a profit in money."
Suggested uses by commentators do not address the profitability component of the
definition of "farm use," and do not rebut substantial evidence in the record that shows the
required investments that preclude the establishment of a legitimate "farm use" on the
property.
Exhibit QQ sets forth the difficulty associated with grazing goats on the property —
particularly for obtaining a profit in money — and concludes that the same difficulties would
frustrate any other farm operation. The record also includes a letter from Paul Schutt, the
owner of a 40-acre farm in Tumalo. Exhibit O. His testimony speaks specifically to hemp
production and concludes that "even the most experienced farmer would be well advised
not to plant hemp for the foreseeable future," because a "glut in the market is causing
hemp farmers to suffer huge losses." The Applicant observes that this testimony is notable
because hemp was a crop in Central Oregon that, for several years, could justify
expending substantial capital on specialized equipment and structures necessary to
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 35 of 110
Exhibit "G" to Ordinance 2022-011
establish a legitimate farm use. Other substantial evidence in the record on this
consideration is found in Exhibits Q through HH.
The Hearings Officer notes that certain uses, such as storing farm equipment are not, in
and of themselves "farm use," as confirmed by LUBA in Oregon Natural Desert
Association v. Harney County, 42 Or LUBA 149 (2002).
The Hearings Officer finds that agricultural uses of the subject property cannot be
undertaken for the primary purpose of obtaining a profit in money due to the costs
associated with technological and energy inputs required for any such use. No one
presented any evidence to rebut the Applicant's evidence that such costs preclude the
owner from making a profit in money from farming the subject property. Therefore, the
Hearings Officer finds that the Applicant has established that technological and energy
inputs and associated costs thereof is a factor in determining the subject property is not
"agricultural land" under OAR 660-033-020(1)(a)(B).
Accepted Farm Practices
The Applicant's burden of proof states, in part, "[f]arming lands comprised of soils that are
predominately Class 7 and 8 is not an accepted farm practice in Central Oregon. Dryland
grazing, the farm use that can be conducted on the poorest soils in the County, typically
occurs on Class 6 non -irrigated soils that have a higher soils class if irrigated. The
Applicant would have to go above and beyond accepted farming practices to even attempt
to farm the property for dryland grazing. Crops are typically grown on soils in soil class 3
and 4 that have irrigation, which this property has neither."
The definition of "accepted farm practice," like that of "farm use," turns on whether or not
it is occurring for the primary purpose of obtaining a profit. The Wetherell court relied on
the taxation code in ORS 308A.056 to define "accepted farm practice" as "a mode of
operation that is common to farms of a similar nature, necessary for the operation of these
similar farms to obtain a profit in money and customarily utilized in conjunction with farm
use." Wetherell, supra, 52 Or LUBA at 681. LUBA determined in the Aceti I case that it is
not an accepted farming practice in Central Oregon to irrigate and cultivate Class VII and
VIII soils.
The Applicant is not required to show that no agricultural use could ever be made on the
property; only that no reasonable farmer would attempt to engage in "farm use," which is
for the primary purpose of obtaining a profit. The Hearings Officer finds that substantial
evidence in the record submitted by the Applicant, and not rebutted, establishes that
operations required to turn a profit from agricultural uses on the subject property are
unrealistic and not consistent with accepted farm practices. Financial investments that
would be required to attempt to operate the subject property in a similar manner to the
Humfleet Property or the Whistle Stop Farm & Flowers (see Exs. JJ, KK, LL and MM)6 are
infeasible due to the poor soils and other considerations, including location adjacent to
Highway 97, graveled surfaces and other site constraints.
Oregon courts have consistently addressed profitability as an element of the definition of
"agricultural land." In Wetherell v. Douglas County, 342 Or 666 (2007), the Oregon
6 The Applicant notes that Whistle Stop Farm & Flowers is engaging in unpermitted commercial
activities which, in and of itself, is not an accepted farm practice.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 36 of 110
Exhibit "G" to Ordinance 2022-011
Supreme Court held that profitability is a "profit in money" rather than gross income. In
Wetherell, the Court invalidated a rule that precluded a local government from analyzing
profitability in money as part of this consideration. Id. at 683. The Court stated:
"We further conclude that the meaning of profitability," as used in OAR 660-033-
0030(5), essentially mirrors that of "profit." For the reasons described above, that
rule's prohibition of any consideration of "profitability" in agricultural land use
determination conflicts with the definition of "farm use" in ORS 215.203(2)(a) and
Goal 3, which permit such consideration. OAR 660-033-0030(5) is therefore
invalid, because it prohibits consideration of "profitability." The factfinder may
consider "profitability" which includes consideration of the monetary benefits or
advantages that are or may be associated from the farm use of the property and
the costs or expenses associated with those benefits, to the extent such
consideration is consistent with the remainder of the definition of "agricultural land"
in Goal 3.
Finally, the prohibition in OAR 660-033-0030(5) of the consideration of "gross farm
income" in determining whether a particular parcel of land is suitable for farm use
also is invalid. As discussed above, "profit" is the excess or the net of the returns
or receipts over the costs or expenses associated with the activity that produced
the returns. To determine whether there is or can be a "profit in money" from the
"current employment of [the] land *** by raising, harvesting and selling crops[]" a
factfinder can consider the gross income that is, or could be generated from the
land in question, in addition to other considerations that relate to "profit" or are
relevant under ORS 215.203(a) and Goal 3.
We therefore hold that, because Goal 3 provides that "farm use" is defined by ORS
215.203, which includes a definition of "farm use" as "the current employment of
land for the primary purpose of obtaining a profit in money[,]" LCDC may not
preclude a local government making a land use decision from considering
"profitability" or `gross farm income" in determining whether land is "agricultural
land" because it is "suitable for farm use" under Goal 3. Because OAR 660-033-
0030(5) precludes such consideration, it is invalid.
Id. at 681-683.
The Hearings Officer finds that the Applicant has met its burden of showing the subject
property cannot be used for agricultural purposes for the primary purpose of obtaining a
profit in money and such is not "agricultural land" under all of the considerations of OAR
660-033-020(1)(a)(B)..
The Hearings Officer finds that substantial evidence in the record supports a determination
that the subject property is not suited to commercial farming because no reasonable
farmer would believe he or she could make a profit in money therefrom, considering all of
the factors listed in OAR 660-033-020(1)(a)(B). No one presented any evidence to rebut
the Applicant's evidence that "accepted farming practices" would or could change the poor
soils on the property to render it suitable for "farm use." There are various barriers to the
Applicant, or any other person, that preclude using the subject property to engage in
agricultural activities for a profit.
In conclusion, the Hearings Officer finds that substantial evidence in the record supports
a determination that each of the listed considerations in OAR 660-033-020(1)(a)(B)
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 37 of 110
Exhibit "G" to Ordinance 2022-011
preclude "farm use" on the subject property because no reasonable farmer would expect
to make a profit in money by engaging in agricultural activities on the land.
3. HEARINGS OFFICER'S FINDINGS AND CONCLUSIONS REGARDING
DCC 18.04.030 DEFINITION OF "AGRICULTURAL LAND"
COLW argues that the definition of "agricultural land," in DCC 18.04.030 excludes the
definition of "farm use" in ORS 215.203(2)(a) and up -ends the Oregon Supreme Court's
decision in Wetherell because the County Code definition includes the phrase, "whether
for profit, or not." COLW cites Brentmar v. Jackson County, 321 Or 481, 497, 900 P.2d
1030 (1995) for the proposition that, even in EFU zones, Deschutes County can enact
"more stringent local criteria" than state statutes.
COLW is wrong. The definition of "agricultural land" in DCC 18.04.030 is wholly
consistent with ORS 215.203(2)(a) and case law in this state and does not exclude the
"profit in money" component which defines "farm use" and guides analysis of whether or
not property is in fact "agricultural land":
'Agricultural Land" means lands classified by the U.S. Natural Resources
Conservation Service (NRCS) as predominately Class I -VI soils, and other lands
in different soil classes which are suitable for farm use, taking into consideration
soil fertility, suitability for grazing and cropping, climatic conditions, existing and
future availability of water for farm irrigation purposes, existing land use patterns,
technological and energy inputs required, and accepted farming practices. Lands
in other classes which are necessary to permit farm practices to be undertaken
on adjacent or nearby lands shall be included as agricultural lands in any event.
COLW instead relies on the definition of "agricultural use," which is not relevant. Many
properties can be engaged in "agricultural use," even if such properties do not constitute
"agricultural land." (hobby farms, for example). Merely because a property can be put
to some, more broadly defined "agricultural use," does not make it "agricultural land," for
the reasons set forth in detail in this Decision and Recommendation.
"Agricultural use" means any use of land, whether for profit or not, related to
raising, harvesting and selling crops or by the feeding, breeding, management
and sale of, or the produce of, livestock, poultry, fur -bearing animals or
honeybees or for dairying and the sale of dairy products or any other agricultural
or horticultural use or animal husbandry or any combination thereof not
specifically covered elsewhere in the applicable zone. Agricultural use includes
the preparation and storage of the products raised on such land for human and
animal use and disposal by marketing or otherwise. Agricultural use also includes
the propagation, cultivation, maintenance and harvesting of aquatic species.
Agricultural use does not include the use of land subject to the provisions of ORS
chapter 321, except land used exclusively for growing cultured Christmas trees.
The Hearings Officer finds that application of the County Code definition of "agricultural
land" does not change the analysis in this Decision and Recommendation.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 38 of 110
Exhibit "G" to Ordinance 2022-011
4. HEARINGS OFFICER'S FINDINGS AND CONCLUSIONS REGARDING
RURAL INDUSTRIAL USES AND GOAL 14
The Hearings Officer finds that the arguments of COLW and 1000 Friends concerning
Goal 14 are improper attempts to re -litigate a matter that has been before the Deschutes
County Hearings Officer, the Board of County Commissioners, LUBA and the Court of
Appeals. Central Oregon LandWatch v. Deschutes County, Or LUBA (LUBA No
2021-028 ("Aceti), aff'd 315 Or App 673, 501 P3d 1121 (2021). Moreover, COLW and
1000 Friends disagree on whether the factors set forth in Shaffer v. Jackson County, 17
Or LUBA 922 (1989) are applicable. See also Columbia Riverkeeper v. Columbia County,
70 Or LUBA 171 (2014). For the reasons set forth in detail below, the Hearings Officer
finds that the Shaffer factors are not applicable because the eventual use of the subject
property is uncertain, making it impossible to determine whether the Shaffer factors are
satisfied.
As the Hearings Officer finds below, a use -by -use analysis of the uses permitted outright
and conditionally in the RI zone to determine whether such uses are urban or rural in
nature has been made by the Deschutes County Board of County Commissioners. Those
findings are binding on the County in consideration of the subject applications.
a. Analysis of LUBA and Court of Appeals Decisions in Aceti
The recent Aceti LUBA opinion states, in relevant part:
In 2018, the county amended the DCCP to allow RI designations and zoning of
land outside the three existing exception areas. Petitioner appealed those
amendments [in Central Oregon LandWatch v. Deschutes County, 79 Or LUBA
253, aff'd 298 Or App 375, 449 P3d 534 (2019)], arguing, among other things, that
the county's decision failed to comply with Goal 14 because the amendments
would allow urban uses of rural lands. Petitioner further argued that the DCC RI
zone regulations — which were not amended concurrently in 2018 with the DCCP
amendments — allow urban uses of rural land. We rejected those arguments,
concluding that the 2018 DCCP amendments are consistent with Goal 14 because
(1) any future application for the RI plan designation would have to demonstrate
that it is consistent with Goal 14 and (2) petitioner's argument that the RI zone
regulations allow urban uses was an impermissible, collateral attack on
acknowledged land use regulations.
Aceti (slip op at *3) (internal citations omitted). DLCD has acknowledged the County's RI
code provisions. LUBA's Aceti decision questions whether an analysis of the Shaffer
factors [Shaffer v. Jackson County, 16 Or LUBA 871 (1988)] was necessary because the
applicable DCC RI provisions have been repeatedly acknowledged by DLCD as consistent
with Goal 14. Among other things, it stated:
"* * * the county amended the DCC RI zone regulations in 2002 and DLCD
acknowledged those regulations are consistent with Goal 14. In 2002, the RI plan
designation was limited to certain geographic areas and specific properties.
However, the 2002 Ordinances did not limit uses allowed in the RI zone to
preexisting industrial uses. Instead, the 2002 Ordinances provided that the
purpose of the RI plan designation 'is to recognize existing industrial uses in rural
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 39 of 110
Exhibit "G" to Ordinance 2022-011
areas of the county and to allow the appropriate development of additional
industrial uses that are consistent with the rural character, facilities and services.'
"* * * in 2018, the county amended the DCCP to make the RI plan designation
available for properties other than those already zoned RI. We have no reason to
believe that DLCD's acknowledgment of the 2002 Ordinances as consistent with
Goal 14 was premised on the fact that the RI plan designation was at that time
limited to specific geographic areas. However, we note that certain factors that
indicate the urban nature of a use --such as proximity to a UGB or extension of
public facilities --might be different on a new parcel as compared to those
properties originally zoned RI prior to the 2018 DCCP amendments.
***
"In adopting the 2018 DCCP amendments, the county took a belt -and -
suspenders approach by requiring an applicant for a new RI plan designation to
demonstrate compliance with Goal 14, even though the county had already
concluded (and DLCD acknowledged) that the RI zone itself complies with Goal
14 by limiting uses to those that are rural in character. In [Central Oregon
LandWatch v. Deschutes County, 79 Or LUBA 253, aff'd 298 Or App 375, 449
P3d 534 (2019)], we affirmed that belt -and suspenders approach in response to
petitioner's Goal 14 challenge.
"In this case, the county agreed with intervenor that 'the policies of the DCCP,
implemented by DCC Chapter 18.100, which is an acknowledged land use
regulation, do not allow urban uses on RI designated and zoned land.' Petitioner
does not assign error to that finding on appeal. That might have been the end of
the Goal 14 inquiry. Nevertheless, perhaps because the county took a belt -and -
suspenders approach to support the 2018 DCCP amendments by requiring an
applicant to demonstrate compliance with Goal 14, the county further concluded
that '(s]pecific findings with 'reasonable clarity' must be made to support a
determination that the [DCC] and [DCCP] limit industrial uses to those that are
rural in nature.' In what appears to us to be yet another belt -and -suspenders
approach, the county applied the Shaffer test to explain why applying RI zoning
to the subject property will not result in urban uses.
"Intervenor appears to have accepted and invited that second -step inquiry and
neither assigns error to it on appeal nor argues that the county's Shaffer analysis
is dicta or unnecessary, alternative findings in light of the county's collateral
attack conclusion regarding the acknowledged DCC chapter 18.100. Accordingly,
we assume for purposes of this decision, as the county did and the parties do,
that the fact that the RI zone regulations have been acknowledged by DLCD to
comply with Goal 14 is not independently sufficient to demonstrate the
challenged post -acknowledgment plan amendment applying the RI plan
designation and zone to the subject property also complies with Goal 14."
(slip op at *12-13). Applicant asserts that the final paragraph above, read in conjunction
with the preceding paragraphs, conclusively demonstrates that LUBA's formal Aceti
holding is constrained to what was likely a superfluous "belt and suspenders" Shaffer
analysis at issue in those proceedings. On appeal of this LUBA decision to the Oregon
Court of Appeals, the Court ruled:
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 40 of 110
Exhibit "G" to Ordinance 2022-011
"Aceti first argues that LUBA should not have applied the Shaffer test at all
because the state agency overseeing land use planning, the Land Conservation
and Development Commission, must have already determined that all the uses
permitted in the County's RI zones are rural, not urban, when it acknowledged
the County Plan. However, that argument was not raised before LUBA, and Aceti
does not contend that LUBA committed plain error. Aceti also argues that LUBA
misapplied the Shaffer test. However, Aceti has provided no basis under our
standard of review that would permit us to displace LUBA's application of its own
precedent."
Central Oregon LandWatch v. Deschutes County, 315 Or App 673, 680, 501 P3d 1121
(2021).
Based on the foregoing analysis and citations, the Applicant argues at page 14 of its June
14, 2022 final argument that LUBA and the Court of Appeals were persuaded by the notion
that DLCD's acknowledgement of the County's DCC and DCCP provisions governing the
RI zone should have set the Goal 14 issue to rest, but for the Aceti applicant undertaking
a "belt and suspenders" Shaffer analysis.
The Applicant posits that what is dispositive for the subject application are the BOCC's
findings regarding the RI zone. The Applicant's primary argument on this issue is that the
DCC and DCCP provisions governing the RI zone ensure that no urban uses are allowed
on rural lands. Based on that assertion, the subject application specifically does not
include the same superfluous "belt and suspenders" Shaffer analysis. Therefore, LUBA's
formal Aceti ruling which is constrained to that "belt and suspenders" analysis is
inapplicable to the present application.
b. BOCC's Formal Aceti Findings
The record includes a copy of the Hearings Officer's October 8, 2020 decision in the Aceti
matter. The BOCC, in turn, adopted that decision as its own, with the Hearings Officer's
decision incorporated as the BOCC's findings attached and incorporated into Ordinance
No 2021 -002 adopted on January 27, 2021. Pages 48 and 49 of the Hearings Officer's
decision includes six findings conclusively demonstrating that the law is settled when it
comes to the County's RI zone not allowing urban uses on rural lands.
"First, LUBA has rejected the argument that DCC 18.100.010 allows urban uses
as constituting an impermissible collateral attack on an acknowledged land use
regulation. [Central Oregon LandWatch v. Deschutes County, 79 Or LUBA 253,
aff'd.298 Or App 37s,449 P3d 534 (2019)].
"Second, DCC Chapter 18.100 implements DCCP Policies 3.4.9 and 3.4.23, which
together direct land use regulations for the Rural Commercial and Rural Industrial
zones to 'allow uses less intense than those allowed in unincorporated
communities as defined by Oregon Administrative Rule 660-022 or its successor,'
to 'assure that urban uses are not permitted on rural industrial lands.' The BOCC
adopted this finding in support of Ordinance 2018-126, which was appealed and
sustained by LUBA and the Court of Appeals.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 41 of 110
Exhibit "G" to Ordinance 2022-011
"Third, as the BOCC found in adopting Ordinance 2018-126,which was appealed
and sustained by LUBA and the Court of Appeals, the application of DCC Title 18
to any development proposed on Rural Commercial or Rural Industrial designated
land will ensure that the development approved is consistent with the requirements
set forth in DCCP Policies 3.4.12 and 3.4.27 do not adversely affect surrounding
area agricultural or forest land, or the development policies limiting building size
(DCCP Policies 3.4.14 and 3.4.28), sewers (DCCP Policies 3.4.18 and3.4.31) and
water (DCCP Policies 3.4.19 and 3.4.32) intended to limit the scope and intensity
of development on rural land.
"Fourth, DCCP Policy 3.4.28 includes a direction that, for lands designated and
zoned RI, new industrial uses shall be limited to a maximum floor area of 7,500
square feet per use within a building, except for the primary processing of raw
materials produced in rural area, for which there is no floor area per use limitation.
"Fifth, DCCP Policy 3.4.31 includes a direction that, for lands designated and
zoned RI, residential and industrial uses shall be served by DEQ approved on -site
sewage disposal systems.
"Sixth, DCCP Policy 3.4.32 includes a direction that, for lands designated and
zoned RI, residential and industrial uses shall be served by on -site wells or public
water systems."
The Hearings Officer finds that the above findings are not constrained to the facts and
circumstances at issue in the Aceti application. These findings apply universally to any
application submitted relying on the County's DCC and DCCP RI provisions. LUBA
succinctly described the above six findings as follows:
"* * * the county determined that even the most intensive industrial use that could
be approved on the subject property under the RI regulations and use limitations
would not constitute an urban use. The county found that the DCCP RI policies
and implementing RI zone regulations in DCC 18.100.010 to 18.100.090 limit the
scope and intensity of industrial development in the RI zone so that no urban
industrial use can be allowed on the subject property. For example, as explained
above, new industrial uses are limited to a maximum floor area of 7,500 square
feet within a building and industrial uses must be served by on -site sewage
disposal. DCCP Policy 3.4.28; DCCP Policy 3.4.31; DCC 18. 100.040(H)(1); DCC
18. 100.030(K)."
Aceti (slip op at *11) (internal citations to the record omitted).
The Hearings Officer finds that the law is settled on the question of whether the RI zone
permits urban uses on rural lands. It does not. A belt -and -suspenders Shaffer analysis is
not required. The Hearings Officer adopts the findings of the BOCC set forth in Ordinance
No. 2021-002 (January 27, 2021) by this reference as the Hearings Officer's findings
concerning the "urban" or "rural" nature of uses in the RI zone.
As determined in Aceti, "even the most intensive industrial use that could be
approved on the property under the RI regulations and use limitations would not
constitute an urban use. ... [T]he [Deschutes County Comprehensive Plan] RI
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 42 of 110
Exhibit "G" to Ordinance 2022-011
policies and implementing RI zone regulations in DCC 18.100.010 to 18.100.090
limit the scope and intensity of industrial development in the RI one so that no
urban industrial use can be allowed on the subject property."
The Hearings Officer finds that the findings in the Aceti application, adopted by the BOCC,
are binding interpretations of DCC and DCCP provisions governing the County's RI zone.
The Hearings Officer declines to revisit these findings here, particularly given the well -
established rule that local governments "may err in changing previously adopted
interpretations" if doing so is a product of a design to act arbitrarily or inconsistently from
case to case." Foland v. Jackson County, Or LUBA , (LUBA No 201 3-082,
Jan 30, 2014) (slip op at *4) (citing Alexanderson v. Clackamas County, 126 Or App 549,
552, 869 P2d 873 (1994)).
The Hearings Officer enters the same findings set forth above with respect to this
application and finds that the application complies with Goal 14; no Goal 14 exception is
required.' The County's RI zone does not permit urban uses; this question has been asked
and answered.
The Hearings Officer notes that the Applicant included a "Goal 14 exception" application
in the alternative if the Board of County Commissioners determines that a Goal 14
exception is required. The Applicant's Goal 14 exception application is addressed in detail
in the findings below.
5. HEARINGS OFFICER'S FINDINGS AND CONCLUSIONS REGARDING
DCC 22.20.015
COLW argued in its May 31, 2022 open record submittal that the Hearings Officer should
determine pursuant to DCC 22.20.015 "if the subject property is in violation of applicable
land use regulations" due to "a current farm use or farm equipment maintenance and
storage occurring on the subject property." Presumably, COLW is arguing that the County
cannot approve the subject applications due to an alleged code violation, per DCC
22.20.015(A). COLW did not provide any additional information or argument as to the
relevance of the use of the subject property for such a use, which is allowed outright
pursuant to DCC 18.16.020(A).
The Hearings Officer finds that DCC 22.20.015 is irrelevant because no violation has been
established under DCC 22.20.015(C), and the record does not support a finding that the
subject property is not in compliance with applicable land use regulations and/or
conditions of approval of prior land use decisions or building permits.
The Hearings Officer finds that DCC 22.20.015 does not preclude the County's
consideration of the applications or its approval thereof.
7 The Applicant included an alternative request for a Goal 14 exception to address the possibility
that the Board of County Commissioners will deviate from the aforementioned proclamation when
addressing the Aceti matter on remand. But until and unless that occurs, the Applicant and the
County are entitled to rely on the Board of County Commissioner's precedent.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 43 of 110
Exhibit "G" to Ordinance 2022-011
B. HEARINGS OFFICER'S FINDINGS AND CONCLUSIONS REGARDING
APPLICABLE CRITERIA
Title 18 of the Deschutes County Code, County Zoning
Chapter 18.120. Exceptions
Section 18.120.010. Nonconforming Uses.
Except as otherwise provided in DCC Title 18, the lawful use of a building,
structure or land existing on the effective date of DCC Title 18, any
amendment thereto or any ordinance codified therein may be continued
although such use or structure does not conform with the standards for new
development specified in DCC Title 18. A nonconforming use or structure
may be altered, restored or replaced subject to DCC 18.120.010. No
nonconforming use or structure may be resumed after a one-year period of
interruption or abandonment unless the resumed use conforms with the
provisions of DCC Title 18 in effect at the time of the proposed resumption.
FINDING: In the burden of proof submitted, there are several descriptions of the activities
and uses that have taken place on the subject property related to the previously -verified
nonconforming uses under files NCU-73-33 and SP-79-21. In the Staff Report, staff
questioned whether nonconforming use verification should be made for purposes of the
applications. The Applicant, at the hearing, conceded that the nonconforming uses on the
subject property were potentially abandoned as a matter of law. The Applicant further
agreed that the subject applications are not a replacement for a nonconforming use
verification contemplated by DCC 18.120.010(C).
The Hearings Officer finds that, whether or not current uses of the property are lawful non-
conforming uses, is not relevant to the determination of compliance with the applicable
criteria for the proposal before the County. No applicable DCC provision, statute or rule
requires a non -conforming use verification for purposes of review of the subject
applications.
The Hearings Officer finds that the Applicant need not prove that the current uses of the
property are lawful non -conforming uses to meet its burden of proof.
Chapter 18.136, Amendments
Section 18.136.010, Amendments
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for
text or legislative map changes shall be as set forth in DCC 22.12. A request
by a property owner for a quasi-judicial map amendment shall be
accomplished by filing an application on forms provided by the Planning
Department and shall be subject to applicable procedures of DCC Title 22.
FINDING: The Applicant, also the property owner, requested a quasi-judicial plan
amendment and filed the applications for a plan amendment and zone change. The
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 44 of 110
Exhibit "G" to Ordinance 2022-011
Applicant filed the required Planning Division's land use application forms for the proposal.
The application is reviewed utilizing the applicable procedures contained in Title 22 of the
Deschutes County Code.
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:
FINDING: The Applicant submits that "the proposed rezone best serves the interest of the
community by allowing Applicant to put the Subject Property to its most viable use." The
Hearings Officer finds that the four factors listed in DCC 18.136.020 are considered in
order to determine whether the public interest is best served by rezoning the property. The
Hearings Officer finds that a demonstration of these four factors by the Applicant
constitutes proof that the public interest will be best served by rezoning the property.
A. That the change conforms with the Comprehensive Plan, and the change
is consistent with the plan's introductory statement and goals.
FINDING: The Applicant provided the following response in its burden of proof statement:
Per prior Hearings Officers decisions for Plan amendments and zone changes on
EFU-zoned property, this paragraph establishes two requirements: (1) that the
zone change conforms to the Plan and (2) that the change is consistent with the
plan's introduction statement and goals. Rezoning the Subject Property from EFU-
TRB to RI will conform with the Comprehensive Plan and is consistent with the
plan's introductory statement, as set out below.
1) Conformance with the Comprehensive Plan. Applicant is currently requesting
a Plan amendment to re -designate the Subject Property from Agriculture to
Rural Industrial. The rezone from EFU-TRB to RI will be consistent with the
proposed Plan amendment requesting that that the property be designated
Rural Industrial.
2) Consistency with the Plan's Introductory Statement and Goals. In previous
decisions, the Hearings Officer found the introductory statements and goals
are not approval criteria for proposed plan amendments and zone changes8.
However, the Hearings Officer in the Landholdings decision found that
depending on the language, some plan provisions may apply and found the
following amended comprehensive plan goals and policies require
consideration and that other provisions of the plan do not apply as stated below
in the Landholdings decision:
"Comprehensive plan statements, goals and policies typically are not
intended to, and do not, constitute mandatory approval criteria for quasi-
8 Powell/Ramsey (file no. PA-14-2 / ZC-14-2) and Landholdings (file no. 247-16-000317-ZC, 318-
PA)
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation
Page 45 of 110
Exhibit "G" to Ordinance 2022-011
judicial/and use permit applications. Save Our Skyline v. City of Bend, 48
Or LUBA 192 (2004). There, LUBA held:
'As intervenor correctly points out, local and statutory requirements
that land use decisions be consistent with the comprehensive plan
do not mean that all parts of the comprehensive plan necessarily
are approval standards. [Citations omitted.] Local governments and
this Board have frequently considered the text and context of cited
parts of the comprehensive plan and concluded that the alleged
comprehensive plan standard was not an applicable approval
standard. [Citations omitted.] Even if the comprehensive plan
includes provisions that can operate as approval standards, those
standards are not necessarily relevant to all quasi-judicial land use
permit applications. [Citation omitted.] Moreover, even if a plan
provision is a relevant standard that must be considered, the plan
provision might not constitute a separate mandatory approval
criterion, in the sense that it must be separately satisfied, along with
any other mandatory approval criteria, before the application can
be approved. Instead, that plan provision, even if it constitutes a
relevant standard, may represent a required consideration that
must be balanced with other relevant considerations. [Citations
omitted.]'
LUBA went on to hold in Save Our Skyline that it is appropriate to 'consider
first whether the comprehensive plan itself expressly assigns particular role
to some or all of the plan's goals and policies.' Section 23.08.020 of the
county's comprehensive plan provides as follows:
The purpose of the Comprehensive Plan for Deschutes County is not to
provide a site -specific identification of the appropriate land uses which may
take place on a particular piece of land but rather it is to consider the
significant factors which affect or are affected by development in the
County and provide a general guide to the various decision which must be
made to promote the greatest efficiency and equity possible, which [sic]
managing the continuing growth and change of the area. Part of that
process is identification of an appropriate land use plan, which is then
interpreted to make decision about specific sites (most often in zoning and
subdivision administration) but the plan must also consider the
sociological, economic and environmental consequences of various
actions and provide guidelines and policies for activities which may have
effects beyond physical changes of the land (Emphases added.)
The Hearings Officer previously found that the above -underscored
language strongly suggests the county's plan statements, goals and
policies are not intended to establish approval standards for quasi-judicial
land use permit applications.
In Bothman v. City of Eugene, 51 Or LUBA 426 (2006), LUBA found it
appropriate also to review the language of specific plan policies to
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 46 of 110
Exhibit "G" to Ordinance 2022-011
determine whether and to what extent they may in fact establish decisional
standards. The policies at issue in that case included those ranging from
aspirational statements to planning directives to the city to policies with
language providing 'guidance for decision -making' with respect to specific
rezoning proposals. In Bothman LUBA concluded the planning commission
erred in not considering in a zone change proceeding a plan policy
requiring the city to '[r]ecognize the existing general office and commercial
uses located * * * [in the geographic area including the subject property]
and discourage future rezonings of these properties.' LUBA held that:
'*** even where a plan provision might not constitute an
independently applicable mandatory approval criterion, it may
nonetheless represent a relevant and necessary consideration that
must be reviewed and balanced with other relevant considerations,
pursuant to ordinance provisions that require *** consistency with
applicable plan provision.' (Emphasis added.)
The county's comprehensive plan includes a large number of goals and
policies. The Applicant's burden of proof addresses goals for rural
development, economy, transportation, public facilities, recreation, energy,
natural hazards, destination resorts, open spaces, fish and wildlife, and
forest lands. The Hearings Officer finds these goals are aspirational in
nature and therefore are not intended to create decision standards for the
proposed zone change."
Hearings Officer Karen Green adhered to these findings in the Powell/Ramsey
decision (file nos. PA-14-2/ZC-14-2), and found the above -referenced introductory
statements and goals are not approval criteria for the proposed plan amendment
and zone change.
This Hearings Officer also adheres to the above findings herein. Nevertheless,
depending upon their language, some plan provisions may require "consideration"
even if they are not applicable approval criteria. Save Our Skyline v. City of Bend,
48 Or LUBA 192, 209 (2004). I find that the following amended comprehensive
plan goals and policies require such consideration, and that other provisions of the
plan do not apply...."
The Hearings Officer relies on the analysis set forth in prior Hearings Officers' decisions.
This Decision and Recommendation reviews only the Comprehensive Plan Goals and
policies that apply, addressed in detail in the Comprehensive Plan section below.
Based on the Applicant's demonstration of Comprehensive Plan conformance detailed in
subsequent findings, the Hearings Officer finds that the zone change conforms to the Plan;
and (2) that the change is consistent with the Plan's introduction statement and goals.
Rezoning the Subject Property from EFU-TRB to RI will conform with the Comprehensive
Plan and is consistent with the plan's introductory statement, as set out below.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 47 of 110
Exhibit "G" to Ordinance 2022-011
C. That the change in classification for the subject property is consistent with
the purpose and intent of the proposed zone classification.
FINDING: Section 3.4 of the Comprehensive Plan includes the following language for the
rural industrial designation:
Rural Industrial
The county may apply the Rural Industrial plan designation to specific
property within existing Rural Industrial exception areas, or to any other
specific property that satisfies the requirements for a comprehensive plan
designation change set forth by State Statute, Oregon Administrative Rules,
this Comprehensive Plan and the Deschutes County Development Code, and
that is located outside unincorporated communities and urban growth
boundaries. The Rural Industrial plan designation and zoning brings these
areas and specific properties into compliance with state rules by adopting
zoning to ensure that they remain rural and that the uses allowed are less
intensive than those allowed in unincorporated communities as defined in
OAR 660-022.
The subject property is not within any existing Rural Industrial exception areas and is
located outside unincorporated communities and urban growth boundaries. The County
may apply the RI plan designation to any other specific property (outside of an RI
exception area, and outside unincorporated communities and urban growth boundaries)
that satisfies the requirements for a comprehensive plan designation change set forth by
State Statute, Oregon Administrative Rules, the Deschutes County Comprehensive Plan
("DCCP") and the Deschutes County Development Code. The Hearings Officer finds that
the fact the subject property is outside of an RI exception area does not preclude
consideration of the application.
There is no longer a "purpose" statement in DCC Chapter 18.100 regarding the intent of
the RI zone.9 Chapter 18.100 merely sets forth uses permitted outright, conditional uses,
use limitations, dimensional standards, off-street parking and loading requirements, site
design, "additional requirements" and solar setback requirements and includes a separate
section concerning a limited use combining zone, Deschutes Junction. Without a "purpose
and intent" statement for the RI zone, the Hearings Officer cannot make findings as to
whether the application is consistent with the proposed zone classification's purpose and
intent.
As stated in Section 3.4 of the Comprehensive Plan, RI plan designation and zoning brings
specific properties into compliance with state rules "by adopting zoning to ensure that they
remain rural and that the uses allowed are less intensive than those allowed in
unincorporated communities as defined in OAR 660-022." The Hearings Officer finds the
applications are consistent with the general statement in the DCCP regarding RI plan
9 Former DCC 18.100.010 stated that the purpose of the RI zone is "to encourage employment
opportunities in rural areas and to promote the appropriate economic development of rural
service centers which are rapidly becoming urbanized and soon to be full -service incorporated
cities, while protecting the existing rural character of the area as well as preserving or enhancing
the air, water and land resources of the area." As amended in 2021, there is no longer a purpose
statement in this chapter concerning the RI zone.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 48 of 110
Exhibit "G" to Ordinance 2022-011
designation and zoning, given that the RI zone does not allow urban uses. The Hearings
Officer finds that the proposed change in designation and zone classification to RI will
ensure that the property remains rural and that the uses allowed are less intensive than
those allowed in unincorporated communities.
C. That changing the zoning will presently serve the public health, safety and
welfare considering the following factors:
1. The availability and efficiency of providing necessary public
services and facilities.
FINDING: There are no plans to develop the property in its current state. The above
criterion asks if the proposed zone change will presently serve public health, safety, and
welfare. The Applicant provided the following response in the burden of proof statement:
Necessary public facilities and services are available to serve the Subject Property.
The Subject Property is served by Deschutes County Services, the Deschutes
Public Library District, the Central Oregon Irrigation District, and Bend Garbage &
Recycling. The Subject Property is already equipped with adequate water and
sewage systems, as explained above [sic], to support industrial uses.
Deschutes Rural Fire Protection District #2 provides fire and ambulance services
to the Subject Property, and the Deschutes County Sheriff provides policing
services.
It is efficient to provide necessary services to the property because the property is
already served by these providers and the Subject Property is close to the City
limits of both Bend and Redmond. It is also adjacent to a rural residential
subdivision. This criterion is met.
Neighboring properties contain residential and open space & conservation uses, which
have water service from a quasi -municipal source or wells, on -site sewage disposal
systems, electrical service, telephone services, etc. The Applicant presented evidence
that the property itself is already served by public service providers.
In the Staff Report, staff questioned whether the Applicant met its burden of proof on this
criterion given potential transportation safety issues concerning a privately
constructed/maintained bridge over the canal which serves as access to the majority of
the subject property. The Hearings Officer notes that the fire department did not comment
on the applications nor otherwise express any concerns regarding adequacy of access to
the property for emergency services.
Deschutes County has not requested or required that the bridge be dedicated to public
use as a condition of approval of the applications, and the County has generally imposed
a moratorium on adding any roads or bridges to the County's transportation system. At
the hearing, the Applicant acknowledged that replacement of the existing bridge may be
initiated by it directly, or that the County could require such replacement as a condition of
approval for the future development of the property and will require further coordination
with COID, as noted in COID's comments on these applications.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 49 of 110
Exhibit "G" to Ordinance 2022-011
The Hearings Officer finds that the bridge is not a "public facility" to be evaluated under
this criterion. Findings on compliance with TSP requirements are set forth in detail below,
incorporated herein by this reference.
Many DCC 18.100.010 uses are outright uses, the future development of which will be
subject to review of public services and facilities availability. Prior to development of the
properties, the Applicant will be required to comply with the applicable requirements of the
Deschutes County Code, including possible land use permitting, building permitting, and
sewage disposal permitting processes. Through these development review processes,
assurance of adequate public services and facilities will be verified.
The Hearings Officer finds this criterion is met.
2. The impacts on surrounding land use will be consistent with the
specific goals and policies contained within the Comprehensive
Plan.
FINDING: The Applicant's burden of proof statement addresses potential impacts on
surrounding land uses as related to each individual policy and goal item within the
County's Comprehensive Plan, addressed in detail in subsequent findings.
Impacts to surrounding land uses resulting from the requested rezone and re -designation
must be determined to be consistent with the specific goals and policies in the DCCP.
Specific comprehensive goals and policies pertaining to these surrounding land uses are
discussed in the section of this decision addressing the DCCP, in the findings below.
The Hearings Officer's review includes consideration of the range of uses allowed outright
and conditionally in the RI zone which inform a decision on whether expected or
anticipated impacts of such potential uses on surrounding land use will be consistent with
the specific goals and policies in the DCCP. Although no specific development is proposed
at this time, the Hearings Officer notes that potential impacts to surrounding land use from
industrial uses generally include traffic, visual impacts, odor, dust, fumes, glare, flashing
lights, noise, and similar disturbances. Again, such impacts are considered in light of
existing impacts of development and roads in the surrounding area.
Based on the Applicant's demonstration of Comprehensive Plan conformance set forth in
detail in subsequent findings and incorporated herein by this reference, the Hearings
Officer finds the application complies with the above criterion.
D. That there has been a change in circumstances since the property was
last zoned, or a mistake was made in the zoning of the property in
question.
FINDING: The Applicant is proposing to rezone the property from EFU to RI and re-
designate the property from Agriculture to Rural Industrial. The Applicant provided the
following response in the burden of proof statement:
Both mistake and change in circumstances are applicable to the Subject Property.
As to mistake, in 1978, the County Board of Commissioners, upon reviewing a
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 50 of 110
Exhibit "G" to Ordinance 2022-011
request by the then owner of the Subject Property to rezone the Subject Property
from A-1 (exclusive agricultural) to C-2, decided to rezone only Tax Lot 500, but
changed the zoning to "AS," which "allows just about any kind of commercial"
activity. See Exhibit 11. That decision mistakenly did not rezone Tax Lot 301,
despite the Applicant at the time explaining to the Board of Commissioners that
"without this zone change his land is virtually worthless" due to it being landlocked
and due to the uses. As to change in circumstances, the Subject Property has
been irrevocably committed to non-agricultural uses through decades of using the
property for equipment service and rentals/sales. The land, which may have
previously been considered suitable for farming, no longer is. Rather it is made up
predominantly of Class 7 or 8 soils, which are unsuitable for agricultural use. See
Exhibits 7-9. For these reasons, this Application meets the requirements of
Criterion D.
Mistake
For the reasons set forth below, the Hearings Officer finds that a "mistake" was not
made. The 1978 File No. Z-78-23 proceeding materials are included in the record and
establish that the County made a considered, deliberate decision to rezone only Tax Lot
500 and to deny the application to rezone Tax Lot 301. The then -applicant did not
appeal the County Board of Commissioner's decision to deny the application to rezone
Tax Lot 301. The Hearings Officer finds that the unchallenged decision cannot now be
considered to be the product of "mistake" under Oregon law. The Applicant cannot now
collaterally attack this prior decision and claim it to be the product of "mistake."
In Aceti (247-20-000438-PA, 439-ZC), the Hearings Officer found:
As the Hearings Officer found in Aceti 1, I find that the original EFU zoning of the
subject property was not a mistake at the time of its original designation. The
property's EFU designation and zoning were appropriate in Tight of the soil data
available to the county in the late 1970s when the comprehensive plan and map
were adopted.
The Hearings Officer makes a similar finding with respect to the subject applications. The
EFU zoning of the subject properties was not a mistake at the time of its original
designation. The properties' EFU designation and zoning were appropriate in light of the
soil data available to the County in the late 1970s when the comprehensive plan and map
were adopted. For the foregoing reasons, the Hearings Officer finds that "mistake" does
not support the Applicant's requested zone change for the subject properties.
Change in Circumstances
In Aceti (247-20-000438-PA, 439-ZC), as well as in File Nos. 247-21-00616-PA/617-ZC
and Eden Properties, File Nos. 247-21-001043-PA/1044-ZC, the Hearings Officer found
that new soil data could be considered evidence of a change in circumstances between
the time of the original zoning (when the County did not conduct an individualized soils
analysis on a farm -by -farm basis), or — as here — the time of the last zoning of the subject
property, which was December 7, 1992 when the property was assigned to the EFU-TRB
subzone under Ord. 92-065 - and the time when an Order I Soil Survey was conducted by
the property owner or applicant to support an application for rezone. The County has an
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 51 of 110
Exhibit "G" to Ordinance 2022-011
established practice when it comes to interpreting and applying DCC 18.136.020(D) such
that the additional information provided by a site specific Order I Soil Study may constitute
a "change in circumstances." The Hearings Officer rejects COLW's argument that Order I
Soils Surveys are irrelevant for purposes of this criterion.
While original/most recent EFU zoning of a property may not be a "mistake," given that the
County relied on available soils data for such zoning and designation decision -making,
new, more in-depth information not available to the County regarding soils is — in and of
itself — a change of circumstances pursuant to which the County may consider a requested
rezone. What has changed is the information available to the County. The County cannot
now ignore the Order I Soil Surveys introduced into the record and supporting testimony
which show that the subject property is predominantly characterized by soil capability
classes VII and VIII.
In its May 31, 2022 open record submittal, the Applicant stated at pages 2-3:
As understood by the Applicant, this issue stems directly from the April 26, 2022
comment letter submitted by Central Oregon LandWatch ("COLW'). There are
several "changes in circumstances" that have occurred since the Properties were
most recently rezoned on December 7, 1992, that justify the subject application.
Those changes range from shifting development patterns in the area to substantial
changes in the region's water resources. The most obvious change, however, is
that the parties and the County have more accurate soil data at their disposable
[sic] because the Applicant commissioned Class I Soil Surveys for the Properties.
On that particular issue, it appears that COLW is perhaps trying to re -litigate a
settled issue.
The County last considered a Class I Soil Survey as a "change in circumstance" in
a recent land use proceeding before the same Hearings Officer concerning
property owned by Anthony Aceti (File Numbers 247-20-000438-PA / 429-ZC,
"Aceti'). That decision succinctly concluded that "new soil data could be
considered a change in circumstances," (Pg 22). The Board of County
Commissioners, in turn, agreed with that conclusion, and adopted the Aceti
Hearings Officer's decision as its own by including said decision as Exhibit F to
Ordinance No,. 2021-002. Under the circumstances, it would be inappropriate for
the Hearings Officer to now either interpret or apply DCC 18.136.020(D) in a
manner inconsistent with Ordinance No. 2021-002.
In addition to the Order 1 Soil Surveys already prepared by Gary A. Kitzrow and
already included in the record as Exhibits 7, 8 and 9 attached to the Applicant's
Burden of Proof, attached hereto is an additional correspondence provided by
Kitzrow. See Exhibit A. Kitzrow's supplemental testimony includes the following
explanation:
"Order I Soil Surveys are site -specific and have a high confidence interval
and specificity. In other words, while Order 111 USDA soil surveys
(published at 1:24,000) are a foundation for soil series/map unit concepts
in the general area under review our current maps for this Order I Soil
Survey are inventoried at a scale of 1:831 and 1:738 for this site -specific
report In fact, in the original USDA map cited in our original report and
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 52 of 110
Exhibit "G" to Ordinance 2022-011
henceforth sanctioned by the DLCD, it says right in the notation for the
actual enclosed soil map, "Soil Map may not be valid at this scale" which
it is not in this particular case. * * * Soil series concepts for the subject
area in the USDA report are certainly valid and based upon solid Soil
Survey principles, however, the actual soil map units, distribution and
quantification of each unit is not always valid at this very detailed site -
specific finite land base. This is a major distinct between Order I and
Order 111 Soil Surveys. Order I Soil Surveys are represented by a scale
reflective of the very small land base under consideration. Order Ill Soil
Surveys are general in nature since their intended use is for agriculture,
ranching and forest management and not for land use decisions and
rezoning considerations. Given these facts above, our current Order 1
Soil Survey is, in fact, a REPLACEMENT and NOT a supplement for
the subject properties regarding soil map and Capability Class/Soil
Efficacy considerations."
Id. (emphasis in original).
As set forth in the Preliminary Findings and Conclusions above, the Hearings Officer does
not find it "suspect" that an Order I Soil Survey contradicts NRCS soil classifications
performed at a higher, landscape level. Rather, the use of Order I soil surveys to provide
more detailed information is specifically contemplated and allowed by ORS 215.211(1)
and OAR 660-033-0030. COLW did not introduce any competing evidence of a different
Order I soil survey that reached conclusions that diverge from those of the Applicant's soil
scientist.
Contrary to COLW's arguments, an applicant does not need to establish that the soils
themselves have changed on the subject property. DCC 18.136.020(D) does not require
"a change in the physical characteristics since the property was last zoned." The Hearings
Officer declines to add new language to the provisions of the Code under the guise of
"interpreting" it. Nonetheless, the Hearings Officer finds that the Applicant's certified soil
scientist noted significant portions of "disturbed" soils, cut and fill operations, topsoil
removal and compaction, which could evidence a change in the physical characteristics
of the soils on the property.
The Applicant also addressed the fact that the region has been experiencing a years -long
drought, affecting the amount of available water resources. The Applicant noted at the
public hearing that it does not make sense to use limited water resources to irrigate poor
soils. It has been leasing back irrigation waters associated with the subject property each
year since 2016. COLW's evidence acknowledges the region's changing water resources
(Exs. E, F, G and I). The record further evidences that continued depletion of regional
water resources is not only a "change in circumstances" but is impacting, and will continue
to impact public interests (Exs. C through K). The Applicant suggests that "eliminating
irrigation inefficiencies," as called for by COLW, should also include allowing property
owners to rezone their property if it is shown not to be agricultural land. The Hearings
Officer agrees and finds that diminishing water resources in the region independently
evidences a "change in circumstances" under this criterion.
Finally, the Applicant's burden of proof statement at page 8 noted several of the reasons
a requested rezone of the subject property was denied in 1978 including the County's
desire to preserve "openness," and prevent commercialization along Highway 97. The
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 53 of 110
Exhibit "G" to Ordinance 2022-011
Applicant discussed the fact, not disputed by any commentator, that the Highway 97
corridor between Bend and Redmond has been significantly developed since 1978, along
with a large influx of population to the area since that time.
The Hearings Officer finds that the Order I Soil Survey prepared for the subject property,
the current drought in the area and strain on available water resources, and the increasing
commercialization along Highway 97 and population influx into the area all evidence a
"change in circumstances" since the County's last zoning of the property in 1992.
Therefore, this criterion is met.
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Section 2.2 Agricultural Lands
Goal 1, Preserve and maintain agricultural lands and the agricultural
industry.
FINDING: The Applicant provided the following response in the burden of proof statement:
In the Landholdings decision (and Powell/Ramsey decision) the Hearings Officer
found that this goal is an aspirational goal and not an approval criterion. The
Subject Property does not constitute agricultural land that must be preserved. The
Soil Assessments show that each tax lot comprising the Subject Property is
predominantly comprised of generally unsuited soils Capability Class 7 and 8 by
Deschutes County and DLCD definitions.
In Aceti (247-20-000438-PA, 439-ZC), the Hearings Officer found:
"The Hearings Officer found in Aceti 1 this is an aspirational goal and not an
approval criterion. LUBA determined that the subject property does not constitute
Agricultural Lands under OAR 660033-0020(1); this finding is binding under the
law of the case doctrine as discussed above.
Substantial evidence in the record supports a finding that the subject property does
not constitute agricultural land that must be preserved as set forth in the Applicant's
site -specific soil study and as previously found by the Hearings Officer, the BOCC
and LUBA. There is no evidence in the record that the proposal will adversely
impact surrounding agricultural lands or the agricultural industry, particularly
considering the surrounding road network, impacts of nearby heavy traffic and
transportation, impacts due to the expansion of US 97 and surrounding commercial
and industrial uses already in existence."
As set forth in the Preliminary Findings and Conclusions, incorporated herein by this
reference, the Hearings Officer finds substantial evidence in the record supports a
finding that the subject property is not "agricultural land," and is not land that could be
used in conjunction with adjacent property for agricultural uses.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 54 of 110
Exhibit "G" to Ordinance 2022-011
There is no evidence that the requested plan amendment and rezone will contribute to
loss of agricultural land in the surrounding vicinity. I find that the agricultural industry will
not be negatively impacted by re -designation and rezoning of the subject property.
Therefore, the Hearings Officer finds the applications are consistent with Section 2.2,
Goal 1, "preserve and maintain agricultural lands and the agricultural industry."
Policy 2.2.2 Exclusive Farm Use sub -zones shall remain as described
in the 1992 Farm Study and shown in the table below, unless adequate
legal findings for amending the sub -zones are adopted or an
individual parcel is rezoned as allowed by Policy 2.2.3.
FINDING: The Applicant is not asking to amend the subzone that applies to the subject
property; rather, the Applicant is seeking a change under Policy 2.2.3 and has provided
evidence to support rezoning the subject property to RI. The Hearings Officer finds this
policy is not applicable.
Policy 2.2.3 Allow comprehensive plan and zoning map amendments
for individual EFU parcels as allowed by State Statute, Oregon
Administrative Rules and this Comprehensive Plan.
FINDING: The Applicant is seeking approval of a plan amendment and zone change to
re -designate and rezone the property from Agricultural to Rural Industrial. The Applicant
is not seeking an exception to Goal 3 —Agricultural Lands, but rather seeks to demonstrate
that the subject property does not meet the state definition of "Agricultural Land" as defined
in Statewide Planning Goal 3 (OAR 660-033-0020).
The Applicant provided the following response in the submitted burden of proof statement:
In the Landholdings decision (and Powell/Ramsey decision), the Hearings Officer
found that this policy is directed at the County rather than an individual Applicant.
Applicant is requesting that the subject property be rezoned from EFU-TRB to RI
and that the Plan designation be changed from Agriculture to Rural Industrial
because the Subject Property is not Agricultural Land subject to Goal 3. The
proposed rezone and Plan amendment is allowed by, and in compliance with,
State Statute, Oregon Administrative Rules, and the Plan. The requested change
is similar to that approved by Deschutes County in the Landholdings case and in
PA-11-1/ZC-11-2, which related to land owned by the State of Oregon (DSL). In
the DSL decision, Deschutes County determined that State law as interpreted in
Wetherell v. Douglas County, 52 Or LUBA 677 (2006), allows this type of
amendment. In Wetherell, LUBA explained:
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.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 55 of 110
Exhibit "G" to Ordinance 2022-011
Wetherell, 52 OR LUBA at 678-679 (citing Caine v. Tillamook County, 25 Or LUBA
209, 218 (1993); DLCD v. Josephine County, 18 Or LUBA 798, 802 (1990)). On
appeal to both the Oregon Court of Appeals and the Oregon Supreme Court,
neither court disturbed LUBA's ruling on this point, and the Oregon Supreme Court
even changed the test for determining whether land is agricultural land to make it
less stringent. Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007).
Specifically, the Supreme Court held:
Under Goal 3, land must be preserved as agricultural land if it is suitable
for "farm use" as defined in ORS 215.203(2)(a), which means, in part, "the
current employment of land for the primary purpose of obtaining a profit in
money" through specific farming -related endeavors.
Wetherell, 342 Or at 677. The Wetherell court further held that when deciding
whether land is agricultural land "a local government may not be precluded from
considering the costs or expenses of engaging in those activities." Id. at 680.
The Subject Property is primarily composed of Class 7 and 8 nonagricultural soils,
and as such, farm -related endeavors would not be profitable. This Application
complies with Policy 2.2.3.
In Aceti (247-20-000438-PA, 439-ZC), the Hearings Officer found:
"The Hearings Officer found in Aceti 1 that this policy is directed at the County
rather than an individual Applicant. In any case, the Applicant has requested a
quasi-judicial plan amendment and zone change to remove the EFU designation
and zoning from the subject property. LUBA has determined that the subject
property is not "Agricultural Land" subject to Goal 3. The Hearings Officer finds the
Applicant's proposal is authorized by policies in the DCCP and is permitted under
state law."
The facts presented by the Applicant for the subject application are similar to those in the
Wetherell decision and in the aforementioned Deschutes County plan amendment and
zone change applications. For the reasons set forth above in the Preliminary Findings and
Conclusions, incorporated herein by this reference, the Hearings Officer finds the subject
property is not agricultural land and does not require an exception to Statewide Planning
Goal 3 under state law. The applications are consistent with this Policy.
Policy 2.2.4 Develop comprehensive policy criteria and code to
provide clarity on when and how EFU parcels can be converted to
other designations.
FINDING: The Applicant provided the following response in the burden of proof statement:
In the Landholdings decision (and Powell/Ramsey decision), the Hearings Officer
found this policy is directed at the County rather than at an individual Applicant.
Applicant's proposal complies with the DCC and any lack of clarity by the County
in regard to the conversion of EFU designations does not prevent Applicant from
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 56 of 110
Exhibit "G" to Ordinance 2022-011
requesting a zone change. Further, the County's interpretation of Policy 2.2.3,
discussed above, spells out when and how EFU parcels can be converted to other
designations.
In Aceti (247-20-000438-PA, 439-ZC), the Hearings Officer found:
"The Hearings Officer found in Aceti 1 that this policy is directed at the County
rather than at an individual Applicant. In said decision, the Hearings Officer cited
a previous decision for file nos. PA-14-2 and ZC-14-2 that stated, 'In any event, in
my decision in NNP (PA-13-1, ZC-13-1) I held any failure on the county's part to
adopt comprehensive plan policies and code provisions describing the
circumstances under which EFU-zoned land may be converted to a non -resource
designation and zoning does not preclude the county from considering quasi-
judicial plan amendment and zone change applications to remove EFU zoning.'
Hearings Officer Green determined in file nos. 247-14-000456-ZC, 457-PA that
'any failure on the county's part to adopt comprehensive plan policies and code
provisions describing the circumstances under which EFU-zoned land may be
converted to a non -resource designation and zoning does not preclude the county
from considering quasi-judicial plan amendment and zone change applications to
remove EFU zoning.' Consistent with this ruling, I find that, until such time as the
County establishes policy criteria and code on how EFU parcels can be converted
to other designations, the current legal framework can be used and must be
addressed."
This plan policy provides direction to Deschutes County to develop new policies to provide
clarity when EFU parcels can be converted to other designations. The Hearings Officer
finds that, without County -established policy criteria and code provisions that provide
guidance on how EFU parcels can be converted to other designations, the current legal
framework will be used and addressed. The Hearings Officer adheres to the County's
previous determinations in plan amendment and zone change applications and finds the
proposal is consistent with this policy.
Goal 3, Ensure Exclusive Farm Use policies, classifications and codes are
consistent with local and emerging agricultural conditions and markets.
Policy 2.2.13 Identify and retain accurately designated agricultural
lands.
FINDING: In Aceti (247-20-000438-PA, 439-ZC), the Hearings Officer found:
The Hearings Officer found in Aceti 1 that this policy is directed at the County rather
than an individual Applicant. Nonetheless, as determined by LUBA and binding on
the parties, I find that the subject property does not constitute "Agricultural Land."
The Hearings Officer finds this plan policy requires the County to identify and retain
agricultural lands that are accurately designated. Substantial evidence in the record
supports a finding that the subject property is not agricultural land as detailed above in the
Preliminary Findings and Conclusions, incorporated herein by this reference. Further
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 57 of 110
Exhibit "G" to Ordinance 2022-011
discussion on the soil analysis provided by the Applicant is detailed under the OAR
Division 33 criteria below. The Hearings Officer finds the applications are consistent with
this policy. The Applicant's compliance with Deschutes County Code provisions applicable
to the subject applications is addressed in separate findings herein.
Section 2.5, Water Resources Policies
Goal 6, Coordinate land use and water policies.
Policy 2.5.24 Ensure water impacts are reviewed and, if necessary,
addressed for significant land uses or developments.
FINDING: In Aceti (247-20-000438-PA, 439-ZC), the Hearings Officer found:
The Hearings Officer found in Aceti 1 that this policy is directed at the County. In
said decision, the Hearings Officer cited a previous decision of Hearings Officer
Green for file nos. PA-14-2 and ZC14-2 that stated, "Nevertheless, in my decision
in NNP I held it is not clear from this plan language what "water impacts" require
review -- impacts to water supplies from use or consumption on the subject
property, or Impacts to off -site water resources from development on the subject
property." The Applicant has not proposed any particular land use or development,
and any subsequent applications for development of the subject property would be
reviewed under the County's land use regulations that include consideration of a
variety of on- and off -site impacts. The Hearings Officer finds it is premature to
review "water impacts" because the Applicant has not proposed any particular land
use or development. Thus, there are no "significant land uses or developments"
that must be reviewed or addressed in this decision. Any subsequent applications
for development of the subject property will be reviewed under the County's land
use regulations, which include consideration of a variety of on- and off -site impacts.
Notwithstanding this statement, the Hearings Officer includes the following
findings.
The Applicant's requested zone change to RI would allow a variety of land uses on
the subject property. The land east of the subject property (57 acres) is zoned RI
and developed with a variety of rural industrial uses. Consequently, it is likely that
similar development may occur on the property if it were re -designated and
rezoned to RI. In light of existing uses in the surrounding area, and the fact that
Avion Water Company provides water service in the Deschutes Junction area, and
a 12-inch diameter Avion water line and two fire hydrants are already installed on
site, future development of the subject property with uses permitted in the RI Zone
will have water service.
The subject property has 16 acres of irrigation water rights and, therefore, the
proposed plan amendment and zone change will result in the loss or transfer of
water rights unless it is possible to bring some irrigated water to the land for other
allowed beneficial uses, such as irrigated landscaping. As stated in the Applicant's
Burden of Proof, the 16 acres of irrigation water rights are undeliverable and are
not mentioned in the property deed. The Applicant has not grown a crop on the
subject property or effectively used his water right since the overpass was
constructed in 1998.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 58 of 110
Exhibit "G" to Ordinance 2022-011
The Hearings Officer finds that the proposal will not, in and of itself, result in any
adverse water impacts. The proposal does not request approval of any significant
land uses or development.
The Applicant is not proposing a specific development at this time. The Applicant will be
required to address this criterion during development of the subject property, which will be
reviewed under any necessary land use process for the site (e.g. conditional use permit,
tentative plat). The Hearings Officer finds this policy does not apply to the subject
applications.
Section 2.7, Open Spaces, Scenic Views and Sites
Goal 1, Coordinate with property owners to ensure protection of significant
open spaces and scenic views and sites.
FINDING: These policies are fulfilled by the County's Goal 5 program. The County protects
scenic views and sites along major rivers and roadways by imposing Landscape
Management (LM) Combining Zones to adjacent properties. The subject properties adjoin
a property to the south (Tax Lot 700, Assessor's Map 16-1223) which is currently zoned
Open Space & Conservation (OS&C) and owned by Oregon Parks & Recreation
Department. The subject properties are also located within the Landscape Management
(LM) Combining Zone associated with the scenic corridor of Highway 97. The subject
properties themselves are zoned EFU and are not included within the OS&C zoning district
and the regulations applicable to the LM Combining Zone are applicable only when a
specific development proposal is applied for within the Combining Zone.
The Hearings Officer finds that the subject properties do not constitute significant open
spaces subject to the Goals and Policies of Deschutes County Comprehensive Plan
Chapter 2, Section 2.7 and have not been inventoried in Chapter 5, Section 5.5 of the
DCCP as land that is an "area of special concern," nor "land needed and desirable for
open space and scenic resources. The Hearings Officer further finds that review of
compliance with the LM Combining Zone is not required within the scope of the subject
Plan Amendment/Zone Change applications.
For these reasons, the Hearings Officer finds that these provisions of the DCCP are
inapplicable to consideration of the proposed zone change and plan amendment.
Chapter 3, Rural Growth
Section 3.4, Rural Economy
Rural Commercial and Rural Industrial
In Deschutes County some properties are zoned Rural Commercial and Rural
Industrial. The initial applications for the zoning designations recognize uses
that predated State land use laws. However, it may be in the best interest of
the County to provide opportunities for the establishment of new Rural
Industrial and Rural Commercial properties when they are appropriate and
regulations are met. Requests to re -designate property as Rural Commercial
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 59 of 110
Exhibit "G" to Ordinance 2022-011
or Rural Industrial will be reviewed on a property -specific basis in
accordance with state and local regulations.
Rural Industrial
The county may apply the Rural Industrial plan designation to specific
property within existing Rural Industrial exception areas, or to any other
specific property that satisfies the requirements for a comprehensive plan
designation change set forth by State Statute, Oregon Administrative Rules,
this Comprehensive Plan and the Deschutes County Development Code, and
that is located outside unincorporated communities and urban growth
boundaries. The Rural Industrial plan designation and zoning brings these
areas and specific properties into compliance with state rules by adopting
zoning to ensure that they remain rural and that the uses allowed are less
intensive than those allowed in unincorporated communities as defined in
OAR 660-022.
The county originally applied the Rural Industrial designation to the
following acknowledged exception areas.
■ Redmond Military
■ Deschutes Junction
■ Bend Auto Recyclers
Existing Rural Industrial Designated Exception Areas
The Redmond Military site consists of tax lot 1513000000116 and is 35.42
acres, bounded by the Redmond Urban Growth Boundary to the west and
agricultural lands (EFU) surrounding the remainder of the property.
The Deschutes Junction site consists of the following tax lots:
161226C000107 (9.05 acres), 16126C000106 (4.33 acres), 161226C000102
(1.41 acres), 161226C000114 (2.50 acres), portions 161226C000300 (12.9
acres). 161226C000301 (8.93 acres), 161226A000203 (1.5 acres) and those
portions of 161226C000111 located west of the Burlington Northern -Santa Fe
railroad tracks (16.45 acres). Generally, the Deschutes Junction site is
bordered on the west by Highway 97, on the east by the Burlington Northern
Railroad, on the north by Nichols Market Road (except for a portion of
1612226A000111), and on the south by EFU-zoned property owned by the
City of Bend.
Bend Auto Recyclers consists of tax lot 1712030000111 and is 13.41 acres,
bounded by Highway 97 to the west, and Rural Residential (MUA-10) lands
to east, north and south.
FINDING: The Applicant provided the following response in the burden of proof statement:
This Application proposes a zoning change to RI. The Subject Property is located
near, but is not part of, the Deschutes Junction site, and as such rezoning to RI
would be consistent with nearby land uses. Applicant's current plan for the Subject
Property, should this Application be approved, is to develop a mini -storage facility,
which is an allowed conditional use in the RI zone. See DCC 18.100.020.M.
However, those plans are not final. Applicant ultimately wishes to develop the
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 60 of 110
Exhibit "G" to Ordinance 2022-011
Subject Property consistent with the uses allowed (outright or conditionally) in the
RI zone. The Application thus complies with this Policy.
The Hearings Officer reviews specific goals and policies in DCCP Section 3.4, Rural
Economy, in specific findings below.
Section 3.4, Rural Economy
Goal 1, Maintain a stable and sustainable rural economy, compatible with
rural lifestyles and a healthy environment.
FINDING: The Applicant's burden of proof does not provide a response to the above Goal,
however, the Hearings Officer notes that Goals are long-term outcomes the County hopes
to achieve by implementing the DCCP, whereas Policies set preferred direction and
describe what must be done to achieve stated Goals. The Hearings Officer addresses with
specific DCCP policies, consistency with which establishes consistency with this Goal.
Policy 3.4.1 Promote rural economic initiatives, including home -
based businesses, that maintain the integrity of the rural character
and natural environment.
a. Review land use regulations to identify legal and appropriate
rural economic development opportunities.
FINDING: The Hearings Officer finds that Policy 3.4.1 in general, and subsection (a)
specifically, provides direction to the County, rather than an applicant to "promote rural
economic initiatives... that maintain the integrity of the rural character and natural
environment" by, among other things, "review[ing] land use regulations to identify legal
and appropriate rural economic development opportunities." The Hearings Officer finds
this Policy 3.4.1 is not applicable to the Applicant.
Policy 3.4.23 To assure that urban uses are not permitted on rural
industrial lands, land use regulations in the Rural Industrial zones
shall ensure that the uses allowed are less intensive than those
allowed for unincorporated communities in OAR 66022 or any
successor.
FINDING: The Applicant provided the following response in the burden of proof statement:
The uses allowed by the RI zone are suitable allowable uses for the Subject
Property, and are compatible with the current state of the Subject Property, which,
as discussed throughout this Application, is not suitable for farming or agriculture
due to its soils and past land uses on the Subject Property. The Application thus
complies with this Policy.
The Hearings Officer finds this policy is directed at the County with respect to its adoption
of land use regulations and uses authorized in the RI zone, and not to an individual
applicant. The RI code is acknowledged, valid, and does not permit urban uses, as the
Hearings Officer determined in the Preliminary Findings and Conclusions set forth in detail
above, incorporated herein by this reference.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 61 of 110
Exhibit "G" to Ordinance 2022-011
In LUBA 2021-028, a remand of Aceti (247-20-000438-PA, 439-ZC), the following findings
related to the above Policy were included:
Ordinance 2002-126 adopted what is now DCCP Policy 3.4.23, which applies to
lands designated and zoned RI and provides: To assure that urban uses are not
permitted on rural industrial lands, land use regulations in the [RI] zones shall
ensure that the uses allowed are less intensive than those allowed for
unincorporated communities in OAR 660-22 or any successor.' Ordinance
2002127 amended DCC chapter 18.100, the RI zone regulations. On January 23,
2003, DLCD issued Order No. 001456, acknowledging the 2002 Ordinances as
consistent with Goal 14.
Regardless of the inapplicability of this policy to the subject applications, the Hearings
Officer notes that the Applicant is requesting a zone change, and has not submitted an
application for any particular use at this time. Subsequently, the County will consider
application(s) to approve permitted RI uses on the property, which future land use
decision(s) must be consistent with RI land use regulations which ensure that any use
allowed is Tess intensive than those allowed for unincorporated communities in OAR 660-
22 or any successors.
To the extent this Policy is applicable to the Applicant, the Hearings Officer finds the
applications are consistent therewith.
Policy 3.4.27 Land use regulations shall ensure that new uses
authorized within the Rural Industrial sites do not adversely affect
agricultural and forest uses in the surrounding area.
FINDING: The Applicant provided the following response in the burden of proof statement:
If this request for Plan Map amendment and rezone is approved, the land use
regulations relating to RI sites ensure that any use allowed by the RI zone will not
adversely affect any agricultural uses in the area surrounding the Subject Property.
Indeed, none of the immediately adjacent properties are in agricultural use at this
time. The Application thus complies with this Policy.
There are no identified forest uses in the vicinity and, juniper, the predominant tree species
in the vicinity is not merchantable. Adjacent Tax Lots 300 and 306 appears to be in farm
use, based on aerial photography, and are receiving farm tax assessment.
The Hearings Officer finds this policy is directed at the County with respect to its adoption
of land use regulations for uses allowed in the RI zone. The policy is not applicable to an
individual applicant. The Applicant's proposal does not change the land use regulations in
the RI Zone. Substantial evidence in the record supports a finding that the zone change
and plan amendment will not have an adverse effect on agricultural and forest uses in the
surrounding area.
To the extent this policy is applicable to the Applicant, the Hearings Officer finds the
applications are consistent therewith.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 62 of 110
Exhibit "G" to Ordinance 2022-011
Policy 3.4.28 New industrial uses shall be limited in size to a maximum
floor area of 7,500 square feet per use within a building, except for the
primary processing of raw materials produced in rural areas, for
which there is no floor area per use limitation.
FINDING: The Applicant provided the following response in the burden of proof statement:
Applicant does not at this time propose any new use or development on the Subject
Property, but wishes to develop the Subject Property in the future consistent with
the allowable uses in the RI zone. If this Application is approved, approval of any
new industrial use can be conditioned to require the size limitations set forth in this
Policy.
The Hearings Officer found in Aceti 1 that this policy applies to quasi-judicial applications
and is inapplicable to an applicant for a proposed rezone and plan amendment. This policy
is codified in DCC Chapter 18.100 and is implemented through those provisions. The
Applicant is not applying for any specific building permit, site plan or conditional use
approval at this time, and the proposal does not change the land use regulations in the RI
Zone.
This policy is implemented through the County's adoption and enforcement of DCC
Chapter 18.100, which will apply at the time the Applicant submits any specific building
permit, site plan or conditional use approval application. The proposal does not change
the land use regulations in the RI Zone. Therefore, the policy is not applicable to the
Applicant's proposal. To the extent this policy is applicable to the Applicant, the Hearings
Officer finds the applications are consistent therewith.
Policy 3.4.31 Residential and industrial uses shall be served by DEQ
approved onsite sewage disposal systems.
FINDING: The Applicant provided the following response in the burden of proof statement:
The Subject Property is served by an approved on -site sewage disposal system
as shown on Exhibit 12. The Application thus complies with this Policy.
The Hearings Officer finds that no specific use is proposed by the Applicant at this time.
This policy is codified in DCC Chapter 18.100 and is implemented through those
provisions. The Applicant is not applying for any specific building permit, site plan or
conditional use approval at this time. At the time a future use is proposed, the County
shall, consistent with this policy and DCC Chapter 18.100, ensure that such use is served
by DEQ approved onsite sewage disposal systems.
The record shows that a 1982 finalized septic permit (permit no. 247-S5813) exists for Tax
Lot 301 and a separate 1982 finalized septic permit (permit no. 247-FS222) exists for Tax
Lot 500. Property records show Tax Lot 305 was previously a portion of Tax Lot 301
(based on a Warranty Deed dated August 19, 1981) and served by the same 1982 septic
permit under permit no. 247-S5813.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 63 of 110
Exhibit "G" to Ordinance 2022-011
The Hearings Officer finds the subject applications are consistent with this policy, to the
extent applicable to the Applicant at this time.
Policy 3.4.32 Residential and industrial uses shall be served by on -
site wells or public water systems.
FINDING: The Applicant provided the following response in the burden of proof statement:
The Subject Property is served by an on -site well as shown on Exhibit 5. The
Application thus complies with this Policy.
The Hearings Officer finds that no specific use is proposed by the Applicant at this time.
This policy is codified in DCC Chapter 18.100 and is implemented through those
provisions. The Applicant is not applying for any specific building permit, site plan or
conditional use approval at this time. At the time a future use is proposed, the County
shall, consistent with this policy and DCC Chapter 18.100, ensure such use is served by
on -site well(s) or public water systems.
The record includes a well agreement (Exhibit 5) for the subject property. While it is unclear
whether potential future industrial uses of the property may rely on water from the well,
future review of any land use and/or building permit will require proof that any proposed
use or development will be served by on -site wells or public water systems.
The Hearings Officer finds the subject applications are consistent with this policy, to the
extent applicable to the Applicant at this time.
Policy 3.4.36 Properties for which a property owner has demonstrated that
Goals 3 and 4 do not apply may be considered for Rural industrial
designation as allowed by State Statute, Oregon Administrative Rules, and
this Comprehensive Plan. Rural Industrial zoning shall be applied to a new
property that is approved for the Rural Industrial plan designation.
FINDING: As set forth in the Preliminary Findings and Conclusions above, incorporated
herein by this reference, the Hearings Officer finds that Goal 3 does not apply to the
subject property because it is not "agricultural land." The record shows that Goal 4 does
not apply to the subject property, as well. There are no identified forest uses in the vicinity
and, juniper, the predominant tree species in the vicinity is not merchantable.
The Hearings Officer finds that the Applicant has demonstrated that Goals 3 and 4 do not
apply to the subject property. Therefore, the subject property can be considered for the
proposed Rural Industrial designation and Rural Industrial zoning as proposed. Compliance
with applicable ORS, OAR, and Comprehensive Plan provisions are addressed herein.
The Hearings Officer finds the applications are consistent with this Policy.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 64 of 110
Exhibit "G" to Ordinance 2022-011
Section 3.5. Natural Hazards
Goal 1 Protect people, property, infrastructure, the economy and the
environment from natural hazards.
FINDING: The Hearings Officer finds this Goal is directed at the County rather than at an
individual applicant. Nonetheless, I find there are 'no mapped flood or volcano hazards on
the subject property or in the surrounding area. Additional hazards include wildfire,
earthquake, and winter storm risks, which are identified in the County's DCCP. There is
no evidence the proposal would result in any increased risk to persons, property,
infrastructure, the economy and the environment from unusual natural hazards. The
Hearings Officer finds the applications are consistent with this Goal.
Section 3.7, Transportation
Appendix C — Transportation System Plan
ARTERIAL AND COLLECTOR ROAD PLAN
Goal 4. Establish a transportation system, supportive of a geographically
distributed and diversified economic base, while also providing a safe,
efficient network for residential mobility and tourism.
Policy 4.1 Deschutes County shall:
a. Consider the road network to be the most important and
valuable component of the transportation system; and
b. Consider the preservation and maintenance and repair of the
County road network to be vital to the continued and future
utility of the County's transportation system.
Policy 4.3 Deschutes County shall make transportation decisions
with consideration of land use impacts, including but not limited to,
adjacent land use patterns, both existing and planned, and their
designated uses and densities.
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 Applicant provided the following response in the burden of proof statement:
The Hearings Officer in the Landholdings decision found that Policy 4.4 applies to
the County and not to individual Applicants. Policies 4.1 and 4.3 similarly should
apply to the County and not to individual Applicants. Regardless, the Subject
Property borders Highway 97 on the east and has legal access onto the highway.
As explained more fully in the Transportation Planning Rule section below, while
the proposed Plan Map amendment and rezone would likely impact transportation
facilities, Applicant would agree to a use limitation and traffic cap for the Subject
Property.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 65 of 110
Exhibit "G" to Ordinance 2022-011
The Hearings Officer finds these policies apply to the County, which advise it to consider
the roadway function, classification and capacity as criteria for plan amendments and zone
changes. These policies also advise the County to consider the existing road network and
potential land use impacts when reviewing for compliance with plan amendments and
zone changes. The County complies with this direction by determining compliance with
the Transportation Planning Rule (TPR), also known as OAR 660-012, as set forth below
in subsequent findings.
The Hearings Officer finds the subject applications are consistent with these policies, to
the extent applicable to the Applicant.
OREGON ADMINISTRATIVE RULES CHAPTER 660, LAND CONSERVATION AND
DEVELOPMENT DEPARTMENT
DIVISION 6, GOAL 4 — FOREST LANDS
OAR 660-006-0005, Definitions
(7) "Forest lands" as defined in Goal 4 are those lands acknowledged as
forest lands, or, in the case of a plan amendment, forest lands shall
include:
(a) Lands that are suitable for commercial forest uses, including
adjacent or nearby lands which are necessary to permit forest
operations or practices; and
(b) Other forested lands that maintain soil, air, water and fish and
wildlife resources.
FINDING: The subject property is not zoned for forest lands, nor are any of the properties
within a 6.5-mile radius. The property does not contain merchantable tree species and
there is no evidence in the record that the property has been employed for forestry uses
historically. None of the soil units comprising the parcel are rated for forest uses according
to NRCS data.
The Hearings Officer finds the subject property does not qualify as forest land. These
regulations do not apply to the applications.
DIVISION 33 — AGRICULTURAL LAND
OAR 660-033-0010, Purpose
The purpose of this division is to preserve and maintain agricultural lands
as defined by Goal 3 for farm use, and to implement ORS 215.203 through
215.327 and 215.438 through 215.459 and 215.700 through 215.799.
FINDING: The Applicant provided the following response in its burden of proof:
The Subject Property does not constitute agricultural land for the reasons set forth
below. Therefore, a Goal 3 exception is not required, nor will the proposed rezone
detract from the statutory purpose of preserving and maintaining agricultural lands.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 66 of 110
Exhibit "G" to Ordinance 2022-011
Division 33 includes a definition of "Agricultural Land," which is repeated in OAR 660-033-
0020(1). The Hearings Officer's Preliminary Findings and Conclusions set forth above,
and incorporated herein by this reference, which determine that the subject property does
not constitute "agricultural land."
OAR 660-033-0020, Definitions
For purposes of this division, the definitions in ORS 197.015, the Statewide
Planning Goals, and OAR Chapter 660 shall apply. In addition, the following
definitions shall apply:
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation
Service (NRCS) as predominantly Class I -IV soils in Western
Oregon and I -VI soils in Eastern Oregon10;
FINDING: The Applicant does not request an exception to Goal 3 on the premise that the
subject property is not defined as "Agricultural Land." In support, the Applicant offered the
following response in the burden of proof statement:
The Subject Property is not property classified as Agricultural Land and does not
merit protection under Goal 3. As shown by the Soils Assessments submitted
herewith and described above, the soils on the Subject Property are predominantly
unsuitable soils of Class 7 and 8 as defined by Deschutes County and DLCD. See
Exhibits 7-9. State Law, ORS 660-033-0030, allows the County to rely on those
Soils Assessments for more accurate soils information.
As set forth in detail in the Preliminary Findings and Conclusions above, incorporated
herein by this reference, the Hearings Officer finds, based on the submitted soil study and
the above OAR definition, that the subject property is comprised predominantly of Class
VII and VIII soils and, therefore, does not constitute "Agricultural Lands" as defined in OAR
660-033-0020(1)(a)(A).
(B) Land in other soil classes that is suitable for farm use as
defined in ORS 215.203(2)(a), taking into consideration soil
fertility; suitability for grazing; climatic conditions; existing
and future availability of water for farm irrigation purposes;
existing land use patterns; technological and energy inputs
required; and accepted farming practices; and
FINDING: The Applicant does not request an exception to Goal 3 on the premise that the
subject property is not defined as "Agricultural Land." In support, the Applicant offered the
following response, in relevant part, in the burden of proof statement:
10 OAR 660-033-0020(5): "Eastern Oregon" means that portion of the state lying east of a line
beginning at the intersection of the northern boundary of the State of Oregon and the western
boundary of Wasco County, then south along the western boundaries of the Counties of Wasco,
Jefferson, Deschutes and Klamath to the southern boundary of the State of Oregon.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 67 of 110
Exhibit "G" to Ordinance 2022-011
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 classification. The Oregon Supreme Court has
determined that the term "farm use" as used in this rule and Goal 3 means the
current employment of land for the primary purpose of obtaining a profit in money
through specific farming -related endeavors. The costs of engaging in farm use are
relevant to determining whether farm activities are profitable and this is a factor in
determining whether land is agricultural land. Wetherell v. Douglas County, 342 Or
666, 160 P3d 614 (2007).
The Subject Property has not been in farm use in decades. The land has not been
irrigated for years, and the COID water rights are leased back to the Deschutes
River.
The Hearings Officer reviewed each of the seven considerations listed in OAR 660-033-
0020(1)(a)(B) in the Preliminary Findings and Conclusions above, incorporated herein by
this reference. Not only are there poor soils on the subject property, but none of the
considerations in this provision would "improve" the situation such that the property with
"land in other soil classes," which do not qualify as agricultural land under OAR 660-033-
0020(1)(a)(A) could nonetheless be suitable for "farm use." None of the seven
considerations show that the property could be employed for the primary purpose of
making a profit in money. The poor soils found on the subject property, combined with
these additional considerations, render the property not suitable for farm use that can be
expected to be profitable.
The Hearings Officer incorporates herein by this reference the Preliminary Findings and
Conclusions above and finds that the subject property does not constitute "Agricultural
Lands" as defined in OAR 660-033-0020(1)(a)(B).
(C) Land that is necessary to permit farm practices to be undertaken
on adjacent or nearby agricultural lands.
FINDING: The Applicant offered the following response in the burden of proof statement:
A large portion of neighboring lands are residential, and the neighboring lands that
are zoned EFU-TRB are not engaged in farm practices that are supported or aided
by the Subject Property. Regardless, the Subject Property, given its poor soils and
proximity to Highway 97, could not be considered "necessary" to permit farm
practices to be undertaken on adjacent or nearby agricultural lands.
The Hearings Officer incorporates herein by this reference the Preliminary Findings and
Conclusions above and finds that the subject property does not constitute "Agricultural
Lands" as defined in OAR 660-033-0020(1)(a)(C).
(b) Land in capability classes other than I-IV/I-VI that is
adjacent to or intermingled with lands in capability classes
1-1V/I-VI within a farm unit, shall be inventoried as
agricultural lands even though this land may not be
cropped or grazed;
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 68 of 110
Exhibit "G" to Ordinance 2022-011
FINDING: The Applicant provided the following response in the burden of proof statement:
The Subject Property is not and has not been a part of a farm unit that includes
other lands not currently owned by the Applicant.
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.
The Subject Property is not in farm use and has not been in farm use of any kind
for decades. It contains soils that make the land generally unsuitable for farm use
as the term is defined by State law. It is not a part of a farm unit with other land.
The Subject Property is predominantly Class 7 and 8 soils and would not be
considered a farm unit itself nor part of a larger farm unit based on the poor soils
and the fact that none of the adjacent property is farmed.
The Hearings Officer incorporates by this reference the Preliminary Findings and
Conclusions set forth above and finds that the subject property does not constitute
"Agricultural Lands," as defined in OAR 660-033-0020(1)(b).
(c) "Agricultural Land" does not include land within
acknowledged urban growth boundaries or land within
acknowledged exception areas for Goal 3 or 4.
FINDING: The subject property is not within an acknowledged urban growth boundary or
land within acknowledged exception areas for Goals 3 or 4. The Hearings Officer finds this
criterion is inapplicable.
OAR 660-033-0030, Identifying Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be
inventoried as agricultural land.
(2) When a jurisdiction determines the predominant soil capability
classification of a lot or parcel it need only look to the land within the
lot or parcel being inventoried. However, whether land is "suitable for
farm use" requires an inquiry into factors beyond the mere
identification of scientific soil classifications. The factors are listed in
the definition of agricultural land set forth at OAR 660-033-
0020(1)(a)(8). This inquiry requires the consideration of conditions
existing outside the lot or parcel being inventoried. Even if a lot or
parcel is not predominantly Class 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).
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 69 of 110
Exhibit "G" to Ordinance 2022-011
FINDING: The Applicant provided responses to the factors in OAR 660-033-0020(1)
above. The soil studies produced by Mr. Kitzrow focused solely on the land within the
subject parcels and the Applicant provided responses indicating the subject parcels are
not necessary to permit farm practices undertaken on adjacent and nearby lands.
The Applicant established that the subject property is not necessary to permit farm
practices undertaken on adjacent and nearby lands. For the reasons set forth in the
Preliminary Findings and Conclusions above, incorporated herein by this reference. the
Hearings Officer finds the subject property is not "Agricultural Lands," as defined in OAR
660-033-0030(1).
(3) Goal 3 attaches no significance to the ownership of a lot or parcel when
determining whether it is agricultural land. Nearby or adjacent land,
regardless of ownership, shall be examined to the extent that a lot or
parcel is either "suitable for farm use" or "necessary to permit farm
practices to be undertaken on adjacent or nearby lands" outside the lot or
parcel.
FINDING: The Applicant argues that the subject property is not suitable for farm use and
is not necessary to permit farm practices to be undertaken on adjacent or nearby lands,
regardless of ownership of the subject property and ownership of nearby or adjacent land.
For the reasons set forth in the Preliminary Findings and Conclusions above, incorporated
herein by this reference, the Hearings Officer finds the subject property is not "Agricultural
lands," and thus that no exception to Goal 3 is required.
(5)(a) More detailed data on soil capability than is contained in the USDA
Natural Resources Conservation Service (NRCS) soil maps and soil
surveys may be used to define agricultural land. However, the more
detailed soils data shall be related to the NRCS land capability
classification system.
(b) If a person concludes that more detailed soils information than that
contained in the Web Soil Survey operated by the NRCS as of January 2,
2012, would assist a county to make a better determination of whether
land qualifies as agricultural land, the person must request that the
department arrange for an assessment of the capability of the land by a
professional soil classifier who is chosen by the person, using the
process described in OAR 660-033-0045.
FINDING: The Applicant provided the following response in the burden of proof statement:
Attached as Exhibits 7-9 are a [sic] more detailed Agricultural Soils Capability
Assessments conducted by Gary Kitzrow, a professional soil classifier, certified
professional soil scientist, and one of only five professionals certified by the state
to make such assessment. The soils capability assessment he conducted on the
Subject Property is related to the NRCS land capability classification system. It
provides and documents more detailed data on soil classification and soil ratings
than is contained in the NRCS soil maps and soil survey at the published level of
detail. The Order 1 survey performed on the Subject Property included 22
descriptions for the approximately 19-acre site (6 for Tax Lot 305; 12 for Tax Lot
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 70 of 110
Exhibit "G" to Ordinance 2022-011
301; and 4 for Tax Lot 500). The soil samples taken were assessed for structure,
consistency, pores, drainage class, root distribution, effective/absolute rooting
depths and related morphology testing. Mr. Kitzrow concluded that the Subject
Property is made up of predominantly Class 7 and 8 soils that are generally
unsuitable for farming.
The soil studies prepared by Mr. Kitzrow provide more detailed soils information than
contained in the NRCS Web Soil Survey. NRCS sources provide general soils data for
large units of land. The soil studies provide detailed information about the individual
subject properties based on numerous soil samples taken from the subject properties. The
soil studies are related to the NRCS Land Capability Classification (LLC) system that
classifies soils Class 1 through 8. An LCC rating is assigned to each soil type based on
rules provided by the NRCS.
According to the NRCS Web Soil Survey tool, the subject properties contain the following
portions of 31A, 38B, and 58C soils:
31A Soils: Approximately 16.5 percent (Tax Lot 301), 22 percent (Tax Lot 305), and 97.2
percent (Tax Lot 500) of the subject properties are composed of 31A soil, respectively.
38B Soils: Approximately 61.4 percent (Tax Lot 301), 47.7 percent (Tax Lot 305), and 2.8
percent (Tax Lot 500) of the subject properties are made up of this soil type, respectively.
58C Soils: Approximately 22.1 percent (Tax Lot 301), and 30.3 percent (Tax Lot 305) of
two (2) of the subject properties are made up of this soil type.
The soil studies conducted by Mr. Kitzrow of Growing Soils Environmental Associates find
the soil types on the subject property vary from the NRCS identified soil types. The soil
types described in the Growing Soils Environmental Associates soil studies are described
below (quoted from Exhibits 7-9 of the application materials).
Tax Lot 301: A large (preponderance) of this lot is made up of along
infrastructure/Impact Areas along with the shallow, generally unsuited Class 7,
Gosney (irrigated and nonirrigated). Conversely, Deschutes soils are somewhat
deeper, have defined topsoils and a little less sand than the competing Gosney
soil units and less rock. This study area and legal lot of record is comprised of 8.00
acres or 53.1% of generally unsuited soils Capability Class 7 and 8 by Deschutes
County and DLCD definitions.
Tax Lot 305: A large (preponderance) of this lot is made up of along
infrastructure/Impact Areas along with the shallow, generally unsuited Class 7,
Gosney (irrigated and nonirrigated). These lithic, entic Gosney soil mapping units
are shallow, have extremely restrictive rooting capabilities and low water holding
capacities. Conversely, Deskamp and Deschutes soils are somewhat deeper,
have defined topsoils and a little less sand than the competing Gosney soil units
and less rock. Noteworthy is the fact that along the western boundary and southern
boundary of this lot are large inclusions of rubble and rock outcrops. This is found
regardless of the associated three soils delineated in this analysis. This study area
and legal lot of record is comprised of 2.45 acres or 81.7% of the landbase as
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 71 of 110
Exhibit "G" to Ordinance 2022-011
generally unsuited soils Capability Class 7 and 8 by Deschutes County and DLCD
definitions.
• Tax Lot 500: A large (preponderance) of this lot is made up of along
infrastructure/Impact Areas along with the shallow, generally unsuited Class 7,
Gosney (irrigated and nonirrigated). Conversely, Deschutes soils are somewhat
deeper, have defined topsoils and a little less sand than the competing Gosney
soil units and less rock. This study area and legal lot of record is comprised of 0.93
Acres or 87.7% of generally unsuited soils Capability Class 7 and 8 by Deschutes
County and DLCD definitions.
As set forth in the Preliminary Findings and Conclusions above, incorporated herein by
this reference, the submitted soil studies prepared by Mr. Kitzrow of Growing Soils
Environmental Associates provide more detailed soils information than contained in the
NRCS Web Soil Survey, which provides general soils data for large units of land. The
Hearings Officer finds the soil studies provide detailed and accurate information about
individual parcels based on numerous soil samples taken from the subject property. The
soil study is related to the NRCS Land Capability Classification (LCC) system that
classifies soils class I through VIII. An LCC rating is assigned to each soil type based on
rules provided by the NRCS.
Correspondence from the Department of Land Conservation and Development (DLCD)
confirms that Mr. Kitzrow's prepared soil studies are complete and consistent with the
reporting requirements for agricultural soils capability as dictated by DLCD. Mr. Kitzrow's
qualifications as a certified Soil Scientist and Soil Classifier are detailed in the submitted
application materials. Based on Mr. Kitzrow's qualifications as a certified Soil Scientist and
Soil Classifier, and as set forth in detail in the Preliminary Findings and Conclusions above,
incorporated herein by this reference, the Hearings Officer finds the submitted soil study
is definitive and accurate in terms of site -specific soil information for the subject property.
These criteria are met.
(e) This section and OAR 660-033-0045 apply to:
(A) A change to the designation of land planned and zoned for
exclusive farm use, forest use or mixed farm -forest use to a
non -resource plan designation and zone on the basis that
such land is not agricultural land; and
FINDING: The Applicant is seeking approval of a non -resource plan designation on the
basis that the subject properties are not defined as agricultural land. Therefore, the
Hearings Officer finds that this section and OAR 660-033-0045 applies to these
applications.
(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.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 72 of 110
Exhibit "G" to Ordinance 2022-011
FINDING: The Applicant submitted soil studies by Mr. Kitzrow of Growing Soils
Environmental Associates dated January 12, 2021. The soils studies were submitted
following the ORS 215.211 effective date. The application materials include
acknowledgements from Hilary Foote, Farm/Forest Specialist with the DLCD (dated April
16, 2021) that the soil studies are complete and consistent with DLCD's reporting
requirements. The Hearings Officer finds this criterion is met based on the submitted soil
studies and confirmation of completeness and consistency from DLCD.
(e)
This section and OAR 660-033-0045 authorize a person to obtain
additional information for use in the determination of whether land
qualifies as agricultural land, but do not otherwise affect the process
by which a county determines whether land qualifies as agricultural
land as defined by Goal 3 and OAR 660-033-0020.
FINDING: The Applicant provided DLCD certified soil studies as well as NRCS soil data.
The Hearings Officer finds this criterion is met.
DIVISION 12, TRANSPORTATION PLANNING
OAR 660-012-0060 Plan and Land use Regulation Amendments
(1) If an amendment to a functional plan, an acknowledged comprehensive
plan, or a land use regulation (including a zoning map) would significantly
affect an existing or planned transportation facility, then the local
government must put in place measures as provided in section (2) of this
rule, unless the amendment is allowed under section (3), (9) or (10) of this
rule. A plan or land use regulation amendment significantly affects a
transportation facility if it would:
(a) Change the functional classification of an existing or planned
transportation facility (exclusive of correction of map errors in
an adopted plan);
(b) Change standards implementing a functional classification
system; or
(c) Result in any of the effects listed in paragraphs (A) through (C)
of this subsection based on projected conditions measured at
the end of the planning period identified in the adopted TSP.
As part of evaluating projected conditions, the amount of
traffic projected to be generated within the area of the
amendment may be reduced if the amendment includes an
enforceable, ongoing requirement that would demonstrably
limit traffic generation, including, but not limited to,
transportation demand management. This reduction may
diminish or completely eliminate the significant effect of the
amendment.
(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
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 73 of 110
Exhibit "G" to Ordinance 2022-011
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: As referenced in the agency comments section in the Basic Findings above,
the Senior Transportation Planner for Deschutes County requested revised details in
addition to the initial traffic study materials provided. The Applicant submitted an updated
report from Ferguson & Associates, Inc. on April 6, 2022, dated March 18, 2022, to
address identified concerns and the County's Senior Transportation Planner issued a
second comment in response.
The Applicant's burden of proof provided the following statement:
The Transportation Planning Rule is applicable because Applicant is requesting a
change to an acknowledged comprehensive plan and land use regulation (the
zoning map). Attached as Exhibit 14 is a Site Traffic Report and TPR Assessment
prepared by traffic engineer Scott Ferguson, P.E. of Ferguson & Associates. Mr.
Ferguson made the following findings with respect to the proposed Plan map
amendment and zone change and concluded that a significant impact to the
transportation facility would occur:
The only available access to the Subject Property is via Highway 97 through a
shared easement driveway. Highway 97 is a four -lane facility in the vicinity of
the driveway, with 20-foot shoulders on both sides. Left turns are legally
prohibited, as there are two sets of double striped painted lanes marking a
striped median. As such, access is limited to right -in, right -out movements from
the driveway. There are no proposed changes to access.
• Visibility exiting the site is good and there are no apparent sight -distance
issues.
• Rezoning the Subject Property from EFU-TRB to RI would allow outright e.g.:
o Primary processing, packaging, treatment, bulk storage and distribution
of the following products:
■ Agricultural products, including foodstuffs, animal and fish
products, and animal feeds,
• Ornamental horticultural products and nurseries,
• Softwood and hardwood products excluding pulp and paper
manufacturing; o Freight Depot, including the loading,
unloading, storage and distribution of goods and materials by
railcar or truck;
o Contractor's or building materials business and other construction -
related business including plumbing, electrical, roof, siding, etc.,
provided such use is wholly enclosed within a building or no outside
storage is permitted unless enclosed by sight -obscuring fencing;
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 74 of 110
Exhibit "G" to Ordinance 2022-011
o Wholesale distribution outlet including warehousing, but excluding
open outside storage;
o Kennel or a veterinary clinic.
The RI zone requires that new industrial uses be limited in size to a maximum
floor area of 7,500 square feet per use within a building, except for the primary
processing of raw materials produced in rural areas, for which there is no floor
area per use limitation.
For purposes of the traffic analysis, it was assumed that a large (100,000
square foot) manufacturing building such as a food processing plant or some
type of lumber -related manufacturing plant could be built on the Subject
Property. Such a distribution center would occupy about 12 percent of available
land. In addition, there could be a mix of other uses, not exceeding 7,500
square feet per use, which could include, e.g., a small building supply outlet, a
veterinary clinic, a small distribution center, and a plant nursery For purposes
of the analysis, one of each of those uses was assumed.
• While it may be possible to pack more onto the site, the assumed uses would
generate more traffic than the site could handle with existing access
configurations.
• Net change in trip generation would be an increase of 166 p.m. peak hour trips
and 1,299 daily trips.
The addition of several hundred vehicles per hour at the driveway on to
Highway 97 would result in performance characteristics that would not meet
the goals of the Oregon Highway Plan.
• This level of traffic would not be appropriate with the existing limited access
and the proposed zone change would significantly impact the transportation if
no further action were taken. But there are further actions which can be taken
to meet the requirements of the TSP under these conditions.
Mr. Ferguson proposed, and Applicant will agree to, establishing a trip cap on the
three lots comprising the Subject Property to limit the amount of development that
would be allowed to reflect the maximum trip generation that would be allowed
before a Traffic Impact Analysis would be required under ODOT or County
guidelines. Specifically, Mr. Ferguson stated in his Report, based on DCC
18.116.310. C, that "the ODOT guideline for conducting a TIA is 400 daily trips.
Since Deschutes County requirements establish a lower (more conservative)
threshold, these values were used: less than 20 p.m. peak hour trips (which is
more than 19 trips) and more than 200 daily trips. As shown below in Table 7,
establishing a trip cap at a threshold where the incremental change would not
exceed the Deschutes County threshold." Table 7 is shown below:
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 75 of 110
Exhibit "G" to Ordinance 2022-011
TABLE 7 — TRIP CAP CALCULATIONS
Trip Generation Scenarios
TRIP GENERATION
PM DAILY
A Existing EFU Zone
8 Proposed RI Zone
C Net Change in Trip Generation
D ODOT Trigger for TIA
E Deschutes Count Trigger for TIA
F Lim it on Net Change (Deschutes Criteria governs)
G Total Trip Generation to Obtain Net Limit (A + F)
13
180
166
na
19
19
32
79
1,378
1, 299
400
200
200
279
Mr. Ferguson concluded, "Accordingly, if a trip cap were set at 32 p.m. peak hour
trips and 279 daily trips, the incremental increase in traffic would be 19 p.m. peak
hour trips and 200 daily trips and a Site Traffic Report (STR) would be required by
Deschutes County Code as per section 18.1 I
6.3 10(CX3Xb) for the purposes of evaluating the TPR."
Applicant's current plan for the Subject Property, if this Application is approved, is
to develop a mini -storage facility on Tax Lot 301. Mr. Ferguson further concluded
that "[sjince mini -storage units are relatively low generators, the trip cap would be
met with any reasonably sized mini -storage facility." With the establishment of this
proposed trip cap, the proposed Plan map amendment and zone change could
meet the requirements of the TPR. Trip generation under this cap would be limited
to no more than 32 p.m. peak hour trips and no more than 279 daily trips. Mr.
Ferguson concluded that with the planned development of mini -storage units, the
level of trip generation would be relatively low and would fall below this threshold".
This TPR assessment was prepared for 3 parcels located on Highway 97
between Bend and Redmond, Oregon. These parcels are generally located in
Figure 1. Table 1 provides addresses, Tax Lot numbers, and existing building
types and sizes.
The proposed change is from EFU (exclusive farm use) to RI (Rural Industrial).
It was found that the proposed zone change would significantly affect the
transportation system without a trip cap.
"Further, imposing a trip cap and use limitations is consistent with the purpose of the RI zone and
Plan designation. See Plan, Policy 3.4.23 ("To assure that urban uses are not permitted on rural
industrial lands, land use regulations in the Rural Industrial zones shall ensure that the uses allowed
are Tess intensive than those allowed for unincorporated communities in OAR 660-22 or any
successor."); see also id., Policy 3.4.24 - Policy 3.4.36 (placing use limitations on certain parcels
given RI zoning to "ensure that the uses in the Rural Industrial Zone on [those tax lots] . , . are
limited in nature and scope"); see also DCC 18.100.030 (setting forth use limitations for the RI
zone).
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 76 of 110
Exhibit "G" to Ordinance 2022-011
The proposed trip cap is 32 new p.m. peak hour trips, above existing trip
generation. A trip cap of 32 new p.m. peak hour trips would readily allow for the
construction of mini -storage units, which is intended as the next step. That
development would need to be addressed in a separate site -application. This is a
very reasonable level for a trip cap considering that it was shown herein that a
trip cap as high as 123 p.m. peak hour trips might be allowed using the ODOT
mobility standards as the measure of impact.
It is trusted that the above updated analysis adequately addresses the Counties
comments and otherwise meets the requirements for the proposed zone change
including a sufficient assessment of the Transportation Planning Rule (TPR).
Please feel free to call at your convenience if you would like to discuss any
elements of this letter -report.
County Senior Transportation Planner, Peter Russell responded to the revised traffic study
and expressed additional concerns. The Applicant then responded with additional traffic
comments on April 8, 2022, to which the County Senior Transportation Planner
responded. The Applicant responded with additional traffic comments on April 13, 2022.
Thereafter, the Applicant worked with the County Senior Transportation Planner, County
planning staff and the Oregon Department of Transportation ("ODOT") to develop a "trip
cap" condition of approval on which the parties all agreed. The record indicates that both
the County and ODOT concur with the proposed condition of approval which states:
The maximum development on the three subject parcels shall be limited to
produce no more than 32 trips in the PM peak hour and/or 279 daily trips as
determined by the Institute of Engineers Trip Generation Manual, 11 th Edition. The
County may allow development intensity beyond these maximum number of
vehicle trips only if the applicant submits to the County a traffic impact analysis
that demonstrates that the proposed intensification of use would be consistent with
the Transportation Planning Rule and the Deschutes County Code.
The record also shows that the Applicant discussed with County staff the fact that LUBA
has upheld trip caps as an effective tool utilized by other Oregon local governments. The
form of the trip cap proposed by the Applicant in the email chain was specifically modeled
on a similar trip cap COA utilized by the City of Eugene and upheld by LUBA. Willamette
Oaks v. City of Eugene, Or LUBA (LUBA NO 2010-062; March 8, 2011) (slip op
at *4-5; n.5). Peter Russell responded the same date that the proposed COA "works on
my end."
COLW claims that the proposal will "drastically increase transportation trips" and argues
that ODOT found a trip cap is not contemplated in the DCC for TPR compliance and that
the County found it does not have the ability to monitor and enforce a trip cap. Therefore
COLW argues that the application has not satisfied Goal 12 and the TPR The Hearings
Officer finds that COLW's argument is based on prior communications from ODOT and
the County Senior Transportation Planner and is refuted by the more recent record
additions, which include, among other things, an email chain between ODOT, County staff
and the Applicant. ODOT did not find that the DCC does not allow a trip cap. Rather,
ODOT concurred with the proposed condition of approval stating, "looks good to me." As
interpreted by the County's Senior Transportation Planner, Peter Russell, ODOT's
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 77 of 110
Exhibit "G" to Ordinance 2022-011
comment regarding the possibility of a DCC text amendment to better address the idea of
a trip cap was meant to apply prospectively to future applicants; a retroactive text
amendment would violate the "goal post rule" at ORS 215.427(3)(a).
Not only did COLW misread comments provided by ODOT and County staff, it presented
no evidence or expert testimony to contradict the evidence included in the record by the
Applicant regarding the TPR.
The Hearings Officer finds that the Applicant has studied all facilities identified by the
County as potentially impacted by the proposed zone change through the traffic study and
revised traffic study, and in its comments from Ferguson & Associates Inc. to the County
Senior Transportation Planner. The Hearings Officer finds that the record supports a
determination that, as conditioned with the proposed condition of approval set forth
above, the proposed zone change, will have no significant adverse effect on the identified
function, capacity, and performance standards of the transportation facilities in the impact
area, such that it is in compliance with OAR 660-012-0060.
(2) If a local government determines that there would be a significant effect,
then the local government must ensure that allowed land uses are
consistent with the identified function, capacity, and performance
standards of the facility measured at the end of the planning period
identified in the adopted TSP through one or a combination of the
remedies listed in (a) through (e) below, unless the amendment meets the
balancing test in subsection (2)(e) of this section or qualifies for partial
mitigation in section (11) of this rule. A local government using subsection
(2)(e), section (3), section (10) or section (11) to approve an amendment
recognizes that additional motor vehicle traffic congestion may result and
that other facility providers would not be expected to provide additional
capacity for motor vehicles in response to this congestion.
(a) Adopting measures that demonstrate allowed land uses are
consistent with the planned function, capacity, and
performance standards of the transportation facility.
(b) Amending the TSP or comprehensive plan to provide
transportation facilities, improvements or services adequate
to support the proposed land uses consistent with the
requirements of this division; such amendments shall include
a funding plan or mechanism consistent with section (4) or
include an amendment to the transportation finance plan so
that the facility, improvement, or service will be provided by
the end of the planning period.
(c) Amending the TSP to modify the planned function, capacity or
performance standards of the transportation facility.
(d) Providing other measures as a condition of development or
through a development agreement or similar funding method,
including, but not limited to, transportation system
management measures or minor transportation
improvements. Local governments shall, as part of the
amendment, specify when measures or improvements
provided pursuant to this subsection will be provided.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 78 of 110
Exhibit "G" to Ordinance 2022-011
(e)
Providing improvements that would benefit modes other than
the significantly affected mode, improvements to facilities
other than the significantly affected facility, or improvements
at other locations, if:
(A) The provider of the significantly affected facility
provides a written statement that the system -wide
benefits are sufficient to balance the significant effect,
even though the improvements would not result in
consistency for all performance standards;
(B) The providers of facilities being improved at other
locations provide written statements of approval; and
(C) The local jurisdictions where facilities are being
improved provide written statements of approval.
FINDING: The Applicant provided the following response in the burden of proof statement:
As discussed above, Mr. Ferguson concluded that the proposed Plan map
amendment and zone change could have a significant effect on the transportation
facility. As such, Mr. Ferguson proposes, and Applicant would agree to, the
imposition of a transportation cap and use limitation on the Subject Property.
The Hearings Officer finds that, with imposition of a condition of approval requiring
assessment of transportation system development charges (SDCs) and other non -
infrastructure mitigations as development occurs on the site on future proposed
development, and with imposition of the agreed -upon condition of approval imposing a
transportation cap and use limitation on the Subject Property, significant adverse effects
on the identified function, capacity and performance standards of the transportation
facilities in the impact area of allowed land uses will be mitigated. These criteria are met.
DIVISION 15, STATEWIDE PLANNING GOALS AND GUIDELINES
OAR 660-015, Division 15, Statewide Planning Goals and Guidelines
FINDING: The Applicant's burden of proof addresses each Goal as follows:
Goal 1, Citizen Involvement. Deschutes County will provide notice of the
application to the public through mailed notice to affected property owners and by
requiring the Applicant to post a "proposed land use action sign" on the Subject
Property. Notice of the public hearings held regarding this application follow the
code requirements. A minimum of two public hearings will be held to consider the
Application.
Goal 2, Land Use Planning. Goals, policies, and processes related to Plan map
amendments and 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.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 79 of 110
Exhibit "G" to Ordinance 2022-011
Goal 3, Agricultural Lands. The Applicant has shown that the subject property is
not agricultural land because it is comprised predominantly of Class 7 and 8 soils
that are not suitable for farm use. Therefore, the proposal is consistent with Goal
3, and no exception is needed.
Goal 4, Forest Lands. This goal is inapplicable because the Subject Property
does not contain land zoned forest land, nor does it support forest uses.
Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces. The
majority of the subject property is located in the Landscape Management
Combining Zone (LM zone). The LM zone is a Goal 5 resource acknowledged by
DLCD that is set out to protect scenic views as seen, in this case, from Highway
97 through a Landscape Management Combining Zone that extends 1/4 mile on
either side of the centerline of the designated roadway. The County typically
requires LM site plan review when a building permit is required for a new or
substantial alteration to an existing structure. The proposal is consistent with Goal
5 because the LM zoning requirements apply when development is proposed; the
proposed rezone and Plan amendment is not development and therefore will not
impact any Goal 5 resource.
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 would be subject to local, state and
federal regulations that protect these resources.
Goal 7, Areas Subject to Natural Disasters and Hazards. This goal is not
applicable because the Subject Property is not located in an area that is
recognized by the Plan as a known natural disaster or hazard area.
Goal 8, Recreational Needs. This goal is not applicable because there is not
development proposed and the property is not planned to meet the recreational
needs of Deschutes County.
Goal 9, Economy of the State. This goal does not apply to this Application
because the Subject Property is not designated as Goal 9 economic development
land. In addition, the approval of this Application will not adversely affect economic
activities of the state or area. Further, the proposed RI zoning will have more
positive impact than EFU zoning on land that cannot viably be farmed.
Goal 10, Housing. Applicant's proposed zone change and plan amendment has
no impact on housing, as the Subject Property is currently zoned EFU and is not
currently in residential use.
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. Needed services — including fire, police, water, utilities, schools, and
county services — are already available in the area.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 80 of 110
Exhibit "G" to Ordinance 2022-011
Goal 12, Transportation. As explained in detail above, the 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 approximately halfway
between the Cities of Bend and Redmond. Allowing the Subject Property to be
zoned RI, especially with the proposed use limitations in place, will not negatively
impact conservation of energy, and may in fact encourage it because it could
provide a conveniently located service (mini -storage) for individuals and
businesses located along Highway 97.
Goal 14, Urbanization. This Application involves the potential urbanization of rural
land. While the RI zone is an acknowledged rural industrial zoning district that limits
the intensity of the uses allowed in the zone, Applicant is requesting a change from
EFU to RI on land that is relatively undeveloped. The compliance of the proposed
zoning with Goal 14 is acknowledged by the Plan, which recognizes that the
"county may apply the Rural Industrial plan designation to specific property within
existing Rural Industrial exception areas, or to any other specific property that
satisfies the requirements for a comprehensive plan designation change set forth
by State Statute, Oregon Administrative Rules, this Comprehensive Plan and the
Deschutes County Development Code, and that is located outside unincorporated
communities and urban growth boundaries. The Rural Industrial plan designation
and zoning brings these areas and specific properties into compliance with state
rules by adopting zoning to ensure that they remain rural and that the uses allowed
are less intensive than those allowed in unincorporated communities as defined in
OAR 660-022." Further, LUBA has held that Goal 14, ORS 197.713, ORS 197.714,
and OAR 660-0140040(4) do not prohibit or limit rural industrial use of rural land."
Central Oregon Landwatch v. Deschutes County, LUBA No. 2021-028, slip op.at
p.21 (OR LUBA 2021). Regardless, Applicant has provided analysis for a Goal 14
exception below showing that it meets the requirements for an "irrevocably
committed" exception.
Goals 15 through 19. These goals do not apply to land in Central Oregon.
The Hearings Officer's findings on each Statewide Planning Goal follow.
Goal 1: Citizen Involvement
To develop a citizen involvement program that insures the opportunity for
citizens to be involved in all phases of the planning process.
FINDING: The Planning Division provided notice of the proposed plan amendment and
zone change to the public through individual mailed notices to nearby property owners,
publication of notice in the Bend "Bulletin" newspaper, and posting of the subject property
with a notice of proposed land use action sign. A public hearing was held before the
Hearings Officer on the proposal on April 26, 2022, and a public hearing on the proposal
will be held by the Deschutes County Board of Commissioners, per DCC 22.28.030(C).
The Hearings Officer finds the proposal is consistent with Goal 1.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 81 of 110
Exhibit "G" to Ordinance 2022-011
Goal 2: Land Use Planning
To establish a land use planning process and policy framework as a basis
for all decision and actions related to use of land and to assure an adequate
factual base for such decisions and actions.
FINDING: Goals, policies and processes related to plan amendment and zone change
applications are included in the County's comprehensive plan and land use regulations in
Titles 18 and 22 of the Deschutes County Code and have been applied to the review of
these applications. The Hearings Officer finds the proposal is consistent with Goal 2.
Goal 3: Agricultural Lands
To preserve and maintain agricultural lands.
FINDING: For the reasons set forth in the Preliminary Findings and Conclusions above,
incorporated herein by this reference, the Hearings Officer finds the subject property does
not constitute "agricultural land" under any of the standards for determining "agricultural
land" set forth in OAR 660-033-0020(1). The Hearings Officer further finds that substantial
evidence supports a finding the proposal will not adversely impact agricultural land.
Therefore, I find the Applicant's proposal is consistent with Goal 3; no exception to Goal
3 is required.
Goal 4: Forest Lands
To conserve forest lands by maintaining the forest land base and to protect
the state's forest economy by making possible economically efficient forest
practices that assure the continuous growing and harvesting of forest tree
species as the leading use on forest land consistent with sound
management of soil, air, water, and fish and wildlife resources and to provide
for recreational opportunities and agriculture.
FINDING: The Hearings Officer finds the subject property does not include any lands that
are zoned for, or that support, forest uses. Therefore, the Hearings Officer finds the
proposal does not implicate Goal 4. Goal 4 is inapplicable.
Goal 5: Natural Resources, Scenic and Historic Areas, and Open Spaces
To protect natural resources and conserve scenic and historic areas and
open spaces.
FINDING: The record indicates there are no identified Goal 5 resources on the subject
property (cultural, historic, wildlife or plant). There are no scenic or historic areas and no
open spaces on the property. There is no wetland, river, stream, creek or pond on the
property, and no riparian zone. The subject properties do not constitute significant open
spaces subject to the Goals and Policies of Deschutes County Comprehensive Plan
Chapter 2, Section 2.7 and have not been inventoried in Chapter 5, Section 5.5 of the
DCCP as land that is an "area of special concern," nor "land needed and desirable for
open space and scenic resources. The Hearings Officer further finds that review of
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 82 of 110
Exhibit "G" to Ordinance 2022-011
compliance with the LM Combining Zone is not required within the scope of the subject
Plan Amendment/Zone Change applications.
COLW argues that the County must apply Goal 5 in consideration of the proposed PAPA
because it would affect a Goal 5 resource. However, OAR 660-023-0250(3) states that,
"[I]ocal 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":
(a) The PAPA creates or amends a resource list or a portion of an acknowledged
plan or land use regulation adopted in order to protect a significant Goal 5
resource or to address specific requirements of Goal 5;
(b) The PAPA allows new uses that could be conflicting uses with a particular
significant Goal 5 resource site on an acknowledged resource list; or
(c) The PAPA amends an acknowledged UGB and factual information is
submitted demonstrating that a resource site, or the impact areas of such a site,
is included in the amended UGB area.
The Hearings Officer finds that amending the plan designation and zoning of the subject
property from EFU to RI does not allow uses that could be conflicting uses with any
"significant Goal 5 resource site." This is so given consideration of OAR 660-023-
0040(1)(d), which directs the County to "develop a program to achieve Goal 5." The
County has done so by adoption of the LM overlay zone. The proposed plan amendment
and zone change does not remove the subject property from the LM overlay zone and
thus does not change or diminish the protection afforded to Goal 5 resources on the
property, specifically the LM designation of lands within 1/4 mile from the centerline of
Highway 97.
Therefore, the Hearings Officer finds the proposal is consistent with Goal 5.
Goal 6: Air, Water and Land Resources Quality
To maintain and improve the quality of the air, water and land resources of
the state.
FINDING: The Hearings Officer finds the Applicant's proposal to rezone the property from
EFU-TRB to RI, in and of itself, will not impact the quality of the air, water, and land
resources of the County. Any future RI Zone development of the property will be subject
to local, state, and federal regulations protecting these resources.
COLW observes that the RI zone allows lumber manufacturing, wood processing, all uses
that could result in `waste and process discharges.' It argues that, without specifying which
industrial uses may be developed on the property, the county could not find compliance
with Goal 6.
The Hearings Officer finds that DCC 18.100.030(J) prohibits the county from approving
any use in the RI zone "requiring contaminant discharge permits ...prior to review by the
applicable state or federal permit -reviewing authority, nor shall such uses be permitted
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 83 of 110
Exhibit "G" to Ordinance 2022-011
adjacent to or across a street from a residential use or lot." This provision also generally
prohibits the county from approving any use in the RI zone, "which has been declared a
nuisance by state statute, County ordinance or a court of competent jurisdiction."
DCC 18.100.030(J) supports a reasonable expectation that uses allowed on the subject
property under RI zoning will either comply with state and federal environmental quality
standards or be denied county approval. Such a determination does not require a specific
development proposal. The Hearings Officer finds that such a determination does not
impermissibly defer a finding of Goal 6 compliance.
The Hearings Officer finds the proposal is consistent with Goal 6.
Goal 7: Areas Subject to Natural Hazards
To protect people and property from natural hazards.
FINDING: There are no mapped flood or volcano hazards on the subject property.
Additional hazards include wildfire, earthquake, and winter storm risks, which are identified
in the County's Comprehensive Plan. The subject property is not subject to unusual natural
hazards nor is there any evidence in the record that the proposal would exacerbate the risk
to people, property, infrastructure, the economy, and/or the environment from these hazards
on -site or on surrounding lands. Therefore, the Hearings Officer finds the proposal does
not implicate Goal 7.
Goal 8: Recreational Needs
To satisfy the recreational needs of the citizens of the state and visitors and,
here appropriate, to provide for the siting of necessary recreational facilities
including destination resorts.
FINDING: The proposed plan amendment and zone change do not affect recreational
needs, and no specific development of the property is proposed. Therefore, the Hearings
Officer finds the proposal does not implicate Goal 8.
Goal 9: Economic Development
To provide adequate opportunities throughout the state for a variety of
economic activities vital to the health, welfare, and prosperity of Oregon's
citizens.
FINDING: This goal is to provide adequate opportunities throughout the state for a variety
of economic activities. The Subject Property is not designated as Goal 9 economic
development land. The Hearings Officer finds the proposed RI zoning will have a more
positive economic impact than EFU zoning on land that cannot viably be farmed, given
that the currently undeveloped property will be put to a more productive use.
The Hearings Officer finds the proposal is consistent with Goal 9.
Goal 10: Housing
To provide for the housing needs of citizens of the state.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation
Page 84 of 110
Exhibit "G" to Ordinance 2022-011
FINDING: The proposed plan amendment and zone change will not affect existing or
needed housing. Therefore, the Hearings Officer finds the proposal does not implicate
Goal 10.
Goal 11: Public Facilities and Services
To plan and develop a timely, orderly and efficient arrangement of public
facilities and services to serve as a framework for urban and rural
development.
FINDING: This goal requires planning for public services, including public services in rural
areas, and generally has been held to prohibit extension of urban services such as sewer
and water to rural lands outside urban growth boundaries. The Applicant's proposal will
not result in the extension of urban services to rural areas. As discussed in the findings
above, public facilities and services necessary for development of the subject property in
accordance with the RI Zone are available and will be adequate.
With respect to water, COLW argues that the Applicant has not addressed groundwater
supply and water rights for the subject property and alleges that industrial use of the
subject property will threaten groundwater supplies in the area. COLW argues that the
Application cannot comply with Goals 6 and 11 because there is no water service to the
subject property.
The Hearings Officer finds that COLW's argument is based on an unsubstantiated premise
that contaminated industrial waste may only be processed in a public wastewater facility.
COLW does not cite anything in the record or applicable law that compels a conclusion
that potential industrial wastewater discharges may only be treated in a public wastewater
facility. Accordingly, the Hearings Officer finds this argument regarding wastewater
provides no basis for denial of the applications.
The Hearings Officer finds that substantial evidence in the record the subject property has
access to water and that that finding is supported by substantial evidence in the record.
The Hearings Officer finds the proposal is consistent with Goal 11.
Goal 12: Transportation
To provide and encourage a safe, convenient and economic transportation
system.
FINDING: As discussed in the findings above concerning compliance with the TPR,
incorporated by reference herein, the Applicant asserts that this proposal will not
significantly affect a transportation facility, as conditioned pursuant to the proposed
condition of approval approved by the County Transportation Planner and ODOT. As set
forth in the findings above, the proposal complies with the TPR. Accordingly, the Hearings
Officer finds the proposal is consistent with Goal 12.
Goal 13: Enemy Conservation
To conserve energy.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation
Page 85 of 110
Exhibit "G" to Ordinance 2022-011
FINDING: The Applicant's proposed plan amendment and zone change, in and of
themselves, will have no effect on energy use or conservation since no specific
development has been proposed in conjunction with the subject applications. The
Hearings Officer finds that the location of the subject property and rezoning it to RI with
proposed use limitations in place may encourage conservation of energy by providing for
a conveniently located service (mini -storage) for individuals and businesses located or
traveling along Highway 97. The Hearings Officer finds the proposal is consistent with
Goal 13.
Goal 14: Urbanization
To provide for orderly and efficient transition from rural to urban use, to
accommodate urban population and urban employment inside urban growth
boundaries, to ensure efficient use of land, and to provide for livable
communities.
FINDING: Goal 14 is "[t]o provide for an orderly and efficient transition from rural to urban
land use, to accommodate urban population and urban employment inside [UGBs], to
ensure efficient use of land, and to provide for livable communities." Goal 14 requires
cities and counties to cooperatively establish as part of their comprehensive plan UGBs
"to provide land for urban development needs and to identify and separate urban and
urbanizable land from rural land." Goal 14 generally prohibits urban uses of rural land.12
The Hearings Officer's detailed Preliminary Findings and Conclusions concerning Goal 14
above are incorporated herein by this reference. The Hearings Officer reiterates her
findings and conclusions that uses in the RI zone are not "urban uses of rural land," by
definition, as restricted by DCC 18.100. Due to the appropriate county rural industrial
development standards, (18.100.040. Dimensional Standards) any rural industrial
development must meet no more than a 70°/a lot coverage, a 30-foot maximum height
limit, generous setbacks and distances between structures, consist of 7,500 square foot
buildings or smaller, and meet the Landscape Management Zone setbacks. All of those
regulations will result in appropriate and compatible low density and not an "urban level"
density.
No Goal 14 exception is required. The Applicant's alternative Goal 14 Exception request
is analyzed in the findings below.
12 LCDC has adopted general definitions that apply to the Statewide Planning Goals, including the
following: "RURAL LAND. Land outside [UGBs] that is: "(a) Non -urban agricultural, forest or open
space, "(b) Suitable for sparse settlement, small farms or acreage homesites with no or minimal
public services, and not suitable, necessary or intended for urban use, or "( c) In an unincorporated
community. "* * * * * "URBAN LAND. Land inside an urban growth boundary. "URBANIZABLE
LAND. Urban land that, due to the present unavailability of urban facilities and services, or for other
reasons, either: "(a) Retains the zone designations assigned prior to inclusion in the boundary, or
(b) Is subject to interim zone designations intended to maintain the land's potential for planned
urban development until appropriate public facilities and services are available or planned."
(Boldface omitted.)
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 86 of 110
Exhibit "G" to Ordinance 2022-011
Goals 15 through 19
FINDING: The Hearings Officer finds that these goals, which address river, ocean, and
estuarine resources, are not applicable because the subject property is not located in or
adjacent to any such areas or resources.
The Hearings Officer finds compliance with the applicable Statewide Planning Goals has
been effectively demonstrated for all listed Goals.
DIVISION 4, INTERPRETATION OF GOAL 2 EXCEPTION PROCESS
FINDING: The Applicant provided the following response in the burden of proof statement:
As explained above, the requested zone change and Plan map amendment from
EFU /Agricultural to RI should not require a Goal exception because the County's
RI zoning complies with Goal 14 by ensuring areas with this zoning remain rural by
limiting the uses allowed. Further, Goal 14, ORS 197.713, ORS 197.714, and OAR
660-014-0040(4) do not prohibit or limit rural industrial use of rural land." Central
Oregon Landwatch v. Deschutes County, LUBA No. 2021-028, slip op. at p.21 (OR
LUBA 2021). To the extent the County disagrees that a Goal exception is not
required, the Subject Property is irrevocably committed to urban uses, and
Applicant provides a Goal exception analysis below.
The Deschutes County Board of County Commissioners entered the following findings
associated with File No. 247-16-000593-A, on remand from LUBA of File Nos. 247-14-
000456-ZC, 457-PA:
Given the above findings that the Applicant did not intend to request and the
County Board did not intend to authorize urban uses on the subject property,
LUBA's remand warrants that we examine why an exception to Goal 14 was filed
in this proceeding at all.
It is plainly evident from the evidence in the record and the above findings that
staff's request that the Applicant submit an application requesting an exception to
Goal 14, the Hearings Officer's consideration and approval of that exception, and
the County Board's consideration of the exception application flowed directly from
the precedent set by the Hearings Official's decision in ZC-14-2. The County had
concluded that the decision was binding precedent and had consistently applied
the approach used in that decision to assign R-I zoning to properties in subsequent
applications. That decision, as interpreted and applied by the County, concluded
that an exception to Goal 14 urbanization was required whenever a property owner
sought rural industrial zoning on rural property, and that the Goal 14 exception
process was to ensure that the subject site was not developed with "urban" uses.
The Hearings Officer's decision in ZC-14-2 was not appealed and, therefore, its
reasoning was never reviewed by LUBA.
As the excerpts from LUBA's opinion in this matter quoted above make clear, the
Hearings Officer's analysis and conclusions in ZC-14-2 regarding the use of the
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 87 of 110
Exhibit "G" to Ordinance 2022-011
Goal 14 exceptions process to limit Rural Industrial uses to those that are not
"urban" is both rationally inconsistent and legally incorrect. As LUBA's decision
also explains that to get a committed exception to Goal 14, one must demonstrate
that it is impossible to locate any rural use on the subject property. It is thus illogical
to approve a Goal 14 exception only to then limit it to Rural Industrial uses, which
are "rural" by definition and acknowledgment. To do so is also inconsistent with the
state's land use legal framework.
The County Board hereby concludes that the County should no longer follow the
precedent set forth in ZC-14-2 that requires approving an exception to Goal 14
before approving the change in plan designation and zoning of a rural property to
the Rural Industrial plan designation and R-I zoning if only rural uses are to be
permitted on the property. As LUBA explained in its decision, the requirement for
an Applicant to apply for an exception to Goal 14 is to be limited to proposals that
request urban uses on rural land, or as otherwise required by the DCC, state
statute or state land use regulations.
Based upon the above conclusion, because the Applicant did not request urban
uses to be allowed on the subject property and because the County Board did not
intend to allow urban uses on rural land, the County Board concludes that the
Applicant should not have been required to submit an application for an exception
to Goal 14 for the purposes set forth by the decision in ZC-14-2 as followed by the
Hearings Official in this proceeding.
The Hearings Officer finds that, here too, the Applicant is not requesting that urban uses
be allowed on the subject property. It does not make sense for the Applicant to request a
re -designation and rezone of the property to Rural Industrial and also request a
"committed" exception to Goal 14 which requires a showing that it is impossible to locate
any rural use on the subject property.
The Applicant's Goal 14 exception request should be denied as inconsistent with
underlying applications, unnecessary, and contrary to the state's land use legal
framework, as determined by the Deschutes County Board of Commissioner in the
decisions quoted above.
OAR 660-004-0010, Application of the Goal 2 Exception Process to Certain Goals
(1) The exceptions process is not applicable to Statewide Goal 1 "Citizen
Involvement" and Goal 2 "land Use Planning." The exceptions
process is generally applicable to all or part of those statewide goals
that prescribe or restrict certain uses of resource land, restrict urban
uses on rural land, or limit the provision of certain public facilities and
services. These statewide goals include but are not limited to: (a) Goal
3 "Agricultural Lands "; however, an exception to Goal 3 "Agricultural
Lands" is not required for any of the farm or nonfarm uses allowed in
an exclusive farm use (EFU) zone under ORS chapter 215 and OAR
chapter 660, division 33, "Agricultural Lands", except as provided
under OAR 660-004-0022 regarding a use authorized by a statewide
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 88 of 110
Exhibit "G" to Ordinance 2022-011
planning goal that cannot comply with the approval standards for that
type of use;
FINDING: For the reasons set forth in the Preliminary Findings and Conclusions on
Agricultural Land, incorporated herein by this reference, the Hearings Officer finds that an
exception to Goal 3 "Agricultural Lands" is not required for the subject applications.
(c) Goal 11 "Public Facilities and Services" as provided in OAR
660-011-0060(9);
FINDING: No public facilities or services are proposed to be extended to support uses
outside of urban growth boundaries pursuant to the subject application. The Hearings
Officer finds that an exception to Goal 11 "Public Facilities and Services" is not required
for the subject applications. As set forth above, the application is consistent with Goal 11.
(d) Goal 14 "Urbanization" as provided for in the applicable
paragraph (l)(c)(A), (B), (C) or (D) of this rule:
(A) An exception is not required for the establishment of an
urban growth boundary around or including portions of
an incorporated city;
(8) When a local government changes an established
urban growth boundary applying Goal 14 as it existed
prior to the amendments adopted April 28, 2005, it shall
follow the procedures and requirements set forth in
Goal 2 "Land Use Planning," Part II, Exceptions. An
established urban growth boundary is one that has
been acknowledged under ORS 197.251, 197.625 or
197.626. Findings and reasons in support of an
amendment to an established urban growth boundary
shall demonstrate compliance with the seven factors of
Goal 14 and demonstrate that the following standards
are met:
(i) Reasons justify why the state policy embodied
in the applicable goals should not apply (This
factor can be satisfied by compliance with the
seven factors of Goal 14);
(ii) Areas that do not require a new exception cannot
reasonably accommodate the use;
(Hi) The long-term environmental, economic, social
and energy consequences resulting from the
use at the proposed site with measures
designed to reduce adverse impacts are not
significantly more adverse than would typically
result from the same proposal being located in
areas requiring a goal exception other than the
proposed site; and
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 89 of 110
Exhibit "G" to Ordinance 2022-011
(iv) The proposed uses are compatible with other
adjacent uses or will be so rendered through
measures designed to reduce adverse impacts.
(C) When a local government changes an established
urban growth boundary applying Goal 14 as amended
April 28, 2005, a goal exception is not required unless
the local government seeks an exception to any of the
requirements of Goal 14 or other applicable goals;
FINDING: The Applicant is not requesting a change to any urban growth boundaries. The
Hearings Officer finds that the above criteria (A-C) do not apply to the subject applications.
(D) For an exception to Goal 14 to allow urban development
on rural lands, a local government must follow the
applicable requirements of OAR 660-014-0030 or 660-
014-0040, in conjunction with applicable requirements
of this division;
FINDING: The Applicant provided the following response in the burden of proof statement:
Applicant provides analysis of a Goal 14 exception to allow urban development on
rural lands below. Part D of this Rule (as well as the requirements of OAR 660-
014-0030 and — 0040) applies to the County, and not to Applicant.
The Hearings Officer finds that the Applicant's request in its Goal 14 exception "to allow
urban development on rural lands" is inconsistent with its request to re -designate and
rezone the property to Rural Industrial. Urban development is not permitted on properties
zoned RI. Further analysis is provided in subsequent findings.
(2) The exceptions process is generally not applicable to those statewide
goals that provide general planning guidance or that include their own
procedures for resolving conflicts between competing uses.
However, exceptions to these goals, although not required, are
possible and exceptions taken to these goals will be reviewed when
submitted by a local jurisdiction. These statewide goals are:
(g) Goal 12 "Transportation" except as provided for by OAR 660-012-
0070, "Exceptions for Transportation Improvements on Rural
Land";
FINDING: The Hearings Officer finds that a Goal 12 "Transportation" exception is not
required for the subject applications.
OAR 660-004-0018, Planning and Zoning for Exception Areas
(1) Purpose. This rule explains the requirements for adoption of plan and
zone designations for exceptions. Exceptions to one goal or a portion of
one goal do not relieve a jurisdiction from remaining goal requirements
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 90 of 110
Exhibit "G" to Ordinance 2022-011
and do not authorize uses, densities, public facilities and services, or
activities other than those recognized or justified by the applicable
exception. Physically developed or irrevocably committed exceptions
under OAR 660-004-0025 and 660-004-0028 and 660-014-0030 are
intended to recognize and allow continuation of existing types of
development in the exception area. Adoption of plan and zoning
provisions that would allow changes in existing types of uses, densities,
or services requires the application of the standards outlined in this rule.
FINDING: The Applicant provided the following response in the burden of proof statement:
Applicant is proposing a zone change and Plan map amendment for land currently
zoned EFUTRB and designated "agricultural." As explained in detail above, the
Soils Assessments show that the Subject Property consists of predominantly Class
7 and 8 soils, and as such cannot be considered "agricultural" such that an
exception to Goal 3 is required. However, the proposed RI zoning may require a
Goal 14 exception. The Subject Property has been in use as a large equipment
service and repair/ rental and sales facility for the majority of the past 40 years, at
least. As such, the Subject Property is irrevocably committed to those uses and an
exception is required on that basis to allow Applicant to continue those uses on the
Subject Property.
The Hearings Officer finds that OAR 660-004-0018 (Planning and Zoning for Exception
Areas) is only applicable if an exception to Goal 14 is required. For the reasons set forth
in the Preliminary Findings and Conclusions above, incorporated by this reference, the
Hearings Officer finds that a Goal 14 exception is not required.
To prepare a full record with findings and conclusions on all proposal components of the
subject applications, the Hearings Officer makes findings on each criterion below.
(1) A local government may adopt an exception to a goal when the land
subject to the exception is irrevocably committed to uses not allowed
by the applicable goal because existing adjacent uses and other
relevant factors make uses allowed by the applicable goal
impracticable:
(a) A "committed exception" is an exception taken in accordance
with ORS 197.732(2)(b), Goal 2, Part II(b), and with the
provisions of this rule, except where other rules apply as
described in OAR 660-004-0000(1).
(b) For the purposes of this rule, an "exception area" is that area
of land for which a "committed exception" is taken.
(c) An "applicable goal," as used in this rule, is a statewide
planning goal or goal requirement that would apply to the
exception area if an exception were not taken.
(2) For "physically developed" and "irrevocably committed" exceptions
to goals, residential plan and zone designations shall authorize a
single numeric minimum lot size and all plan and zone designations
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 91 of 110
Exhibit "G" to Ordinance 2022-011
shall limit uses, density, and public facilities and services to those
that satisfy (a) or (b) or (c) and, if applicable, (d); ...
(b) That meet the following requirements;
(A) The rural uses, density, and public facilities and services
will maintain the land as "Rural Land" as defined by the
goals, and are consistent with all other applicable goal
requirements;
FINDING: The Applicant provided the following response in the burden of proof statement:
"Rural Land" is defined by the goals as "fl]and outside urban growth boundaries
that is: a) Nonurban agricultural, forest or open space; b) Suitable for sparse
settlement, small farms or acreage homesites with minimal public services, and
not suitable, necessary or intended for urban use, or c) In an unincorporated
community." Applying the RI Plan designation and zoning to the Subject Property
will maintain the land as "rural" because rural uses, density, and public facilities
allowed by the RI zoning are limited to those that, according to the Plan, "ensure
that they remain rural and that the uses allowed are less intensive than those
allowed in unincorporated communities." Applicant addressed consistency with
other applicable goal requirements above, and incorporates that discussion here.
The Hearings Officer finds that this provision has not been considered in its full context.
The Applicant has requested an "irrevocably committed" exception to Goal 14. This
regulation requires that the zone designation "shall authorize a single numeric
minimum lot size and all plan and zone designations shall limit uses, density and
public facilities and services to those that satisfy..."(b)(A), (b)(B), and (b)(C).
The Applicant did not propose, and staff did not analyze any "single numeric minimum lot
size" to limit uses, density and public facilities in the exception area. Without such analysis,
the Hearings Officer cannot find that the Applicant has met its burden of proof on the
criterion set forth in OAR 660-004-018(2)(b)(A).
(B) The rural uses, density, and public facilities and services
will not commit adjacent or nearby resource land to uses
not allowed by the applicable goal as described in OAR
660-004-0028; and
FINDING: The Applicant provided the following response in the burden of proof statement:
The rural uses, density, and public facilities allowed by the RI zone will not commit
adjacent or nearby resource land to uses not allowed by the applicable goal. The
nearby and adjacent resource lands (which are zoned EFU) are either in residential
use or used as open space /park land; they are not in any agricultural use. Allowing
a Goal 14 exception to rezone the Subject Property from EFU to RI, therefore, will
not impact the nearby and adjacent EFU-zoned resource lands to uses not allowed
by Goal 3.
As discussed above, the Hearings Officer finds that the Applicant did not propose, and
staff did not analyze any "single numeric minimum lot size" to limit uses, density and public
facilities in the exception area. Without such analysis, the Hearings Officer cannot find that
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 92 of 110
Exhibit "G" to Ordinance 2022-011
the Applicant has met its burden of proof on the criterion set forth in OAR 660-004-
018(2)(b)(B).
(C) The rural uses, density, and public facilities and services
are compatible with adjacent or nearby resource uses;
FINDING: The Applicant provided the following response in the burden of proof statement:
The rural uses, density, and public facilities and services allowed by the RI zone
and Plan designation are compatible with adjacent or nearby resource uses (i.e.
residential, open space / parks).
As discussed above, the Hearings Officer finds that the Applicant did not propose, and
staff did not analyze any "single numeric minimum lot size" to limit uses, density and
public facilities in the exception area. Without such analysis, the Hearings Officer cannot
find that the Applicant has met its burden of proof on the criterion set forth in OAR 660-
004-018(2)(b)(C).
OAR 660-004-0028, Exception Requirements for Land Irrevocably Committed to
Other Uses
(1) A local government may adopt an exception to a goal when the land
subject to the exception is irrevocably committed to uses not allowed
by the applicable goal because existing adjacent uses and other
relevant factors make uses allowed by the applicable goal
impracticable:
(a) A "committed exception" is an exception taken in accordance
with ORS 197.732(2)(b), Goal 2, Part II(b), and with the
provisions of this rule, except where other rules apply as
described in OAR 660-004-0000(1).
(b) For the purposes of this rule, an "exception area" is that area
of land for which a "committed exception" is taken.
(c) An "applicable goal," as used in this rule, is a statewide
planning goal or goal requirement that would apply to the
exception area if an exception were not taken.
FINDING: The Applicant provided the following response in the burden of proof statement:
ORS 197.732(2)(b) is addressed below. Goal 2, Part Il(b) allows an exception to a
Goal where "(t]he land subject to the exception is irrevocably committed to uses
not allowed by the applicable goal because existing adjacent uses and other
relevant factors make uses allowed by the applicable goal impracticable." The
Subject Property, which is the relevant "exception area," is currently zoned EFU-
TRB but cannot be used for agricultural purposes, including farming and grazing,
because of the poor soil conditions, as discussed above. Further, the Subject
Property has been in use as an equipment service /repair and rental/sales facility
for the majority of the past 40 years or more, and has had improvements (buildings,
parking areas, etc.) for that long, as well. It is adjacent to a residential large -lot
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 93 of 110
Exhibit "G" to Ordinance 2022-011
subdivision to the west, and bordered by Highway 97 on the east. The EFU-zoned
lands adjacent to it are in residential use and not in agricultural use. Applicant is
entitled to an "irrevocably committed" exception to Goal 14 because existing
adjacent uses and other relevant factors make uses allowed by the applicable goal
impracticable. Compliance with the requirements for the exception is addressed
below.
As set forth above in the Preliminary Findings and Conclusions, the Hearings Officer finds
that no Goal 14 exception is required. To prepare a full record with findings and
conclusions on all proposal components of the subject applications, the Hearings Officer
finds that the proposal would not be entitled to a Goal 14 exception based on "irrevocable
commitment," for the reasons discussed in more detail below.
(2) Whether land is irrevocably committed depends on the relationship
between the exception area and the lands adjacent to it. The findings
for a committed exception therefore must address the following:
(a) The characteristics of the exception area;
FINDING: The Applicant provided the following response in the burden of proof statement:
The "exception area" is the area for which the exception is being requested - i.e.,
the Subject Property. As discussed above, the Subject Property is composed of
mostly Class 7 and 8 soils, which are not suitable for farming or other agricultural
use. For most of the past 40 or more years, two of the three tax lots making up the
Subject Property have been used for repair, service, and rental / sales of large
equipment. This use for such an extended period of time contributed to the
degradation of the soils on the Subject Property. The third tax lot, Tax Lot 301, is
landlocked and only accessible via a bridge easement from Highway 97 located
on Tax Lots 305 and 500..... The Subject Property is connected to urban services
including fire, police, utilities, schools, library, garbage and recycling, and county
services.
The determination of "irrevocably committed" pursuant to a requested Goal 14 exception
is separate and distinct from analysis concerning "agricultural lands" and Goal 3. The
Hearings Officer finds that the record shows only one-third of the total acreage of the
subject property has been allocated to non -conforming use. Whether or not that non-
conforming use has continued in an unaltered, uninterrupted, unabandoned manner is not
relevant to the determination of the characteristics of the exception area. The Hearings
Officer has previously found in this Decision and Recommendation that a non -conforming
use verification is not required.
Despite the more intensive prior uses of the subject property and graveled, disturbed
areas on site, the Hearings Officer finds that the record does not support a finding that
non -urban uses are impracticable on the subject property. For example, the Applicant has
indicated that, if the proposed plan amendment and rezone is approved to RI, the
Applicant is considering applying for a use conditionally permitted in the zone, a mini -
storage facility. See DCC 18.100.020(M).
The Hearings Officer finds the Applicant has not met its burden of proof on this criterion.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 94 of 110
Exhibit "G" to Ordinance 2022-011
(b) The characteristics of the adjacent lands;
FINDING: The Applicant provided the following response in the burden of proof statement:
The Subject Property is surrounded by multiple zones and uses. Directly west, and
comprising the western boundary of the Subject property, is a large Rural
Residential 10 zone ("RR-10'). All neighboring properties to the west are part of
the Whispering Pines Estates subdivision and are put to residential uses. The
Subject Property shares a southern border with Tax Lot 700, which is owned by
the Oregon Parks and Recreation Department land and zoned Open Space and
Conservation ("OS&C'). The Subject Property is bordered on the east by Highway
97 and two other parcels, Tax Lots 300 and 306. Tax Lots 300 and 306 are also
zoned EFU-TRB, however, neither is actively used for agricultural operations, and
both are used for residential purposes. The Subject Property is bordered on the
north by Tax Lot 202 which is also zoned EFU-TRB and is not engaged in an
agricultural operation, but rather, is used for residential purposes.
As noted above, the determination of "irrevocably committed" pursuant to a requested
Goal 14 exception is separate and distinct from analysis concerning "agricultural lands"
and Goal 3. The Hearings Officer finds that the record does not support a finding of
"irrevocably committed" to urban uses based on the surrounding zoning and use of
properties adjacent to the subject property. Adjacent Tax Lots 300 and 306 are in some
type of farm use as they have irrigation rights and are receiving farm tax assessment.
Aerial photography further supports this determination.
The Hearings Officer finds the Applicant has not met its burden of proof on this criterion.
(c) The relationship between the exception area and the lands
adjacent to it; and
FINDING: The Applicant provided the following response in the burden of proof statement:
The Subject Property is adjacent to a residential subdivision consisting of multiple
large residential lots, several tax lots zoned EFU used for residential purposes and
not currently in agricultural use, Highway 97, and a state park. The Subject
Property - which has been used for decades as an equipment repair / service
facility - and the properties adjacent to it are compatible with one another and have
been for decades. Applicant's proposed zone change and Plan map amendment
would not change that relationship because the Subject Property has been used
in ways consistent with the allowed uses in the RI zone for decades.
The Hearings Officer finds that this provision is intended to determine to what extent the
relationship between the exception area and the lands adjacent to it renders non -urban
uses impracticable. The mere existence of residential uses near a property proposed for
an irrevocably committed exception does not demonstrate that such property is
necessarily committed to nonresource use. Prentice v. LCDC, 71 Or App 394,403-04, 692
P2d 642 (1984).
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 95 of 110
Exhibit "G" to Ordinance 2022-011
The Hearings Officer finds that the Applicant has not met its burden of proof on this
criterion.
(d) The other relevant factors set forth in OAR 660-004-0028(6).
FINDING: The relevant factors of OAR 660-004-0028(6) are discussed in subsequent
findings.
(3) Whether uses or activities allowed by an applicable goal are
impracticable as that term is used in ORS 197.732(2)(b), in Goal 2, Part II(b),
and in this rule shall be determined through consideration of factors set forth
in this rule, except where other rules apply as described in OAR 660-004-
0000(1). Compliance with this rule shall constitute compliance with the
requirements of Goal 2, Part Il. It is the purpose of this rule to permit
irrevocably committed exceptions where justified so as to provide flexibility
in the application of broad resource protection goals. It shall not be required
that local governments demonstrate that every use allowed by the applicable
goal is "impossible." ...
FINDING: The Applicant provided the following response in the burden of proof statement:
Applicant is not requesting an exception to Goal 3 because the land is not suitable
for agricultural use, as explained above. Applicant requests an exception to Goal
14. The Subject Property is irrevocably committed to non -resource use due to its
extensive historic use as a large equipment service / repair and rental / sales
facility, which depleted the soils. The soils on the Subject Property are
predominantly Class 7 and 8 and as a result cannot reasonably be farmed. The
Subject Property's current EFU-TRB zoning allows outright or conditionally a
variety of uses. The farm and forest uses allowed in the EFU zone - as well as
uses related to farm and forest uses - would be impracticable on the Subject
Property due to constraints caused by the historic use of the Subject Property, its
proximity to Highway 97, its proximity to a residential subdivision and other
residentially -used properties, the landlocked nature of Tax Lot 301, the less than
20-acre size of the Subject Property, the poor quality of the soils, and the difficulty
of irrigating. Other resource related uses allowed in the EFU zone such as mining,
wetland creation, and wildlife habitat conservation would be impracticable
considering the Subject Property's size, location, configuration, and dry rocky soil.
While residential uses may not be impossible, the only site that could currently be
developed with a residence is landlocked and inaccessible from Highway 97. Tax
Lots 305 and 500 are presently developed with facilities historically used for
service / repair and rental / sales of large equipment. Developing a dwelling on
those lots is impracticable based on the current use of the land. Further, the
proximity to Highway 97 creates noise issues that would make dwelling
development impracticable. With respect to irrigation -related uses, the Subject
Properly, while adjacent to the Pilot Butte Canal, cannot be sufficiently irrigated
because (a) the water rights are being leased to the Deschutes River and (b) even
if they were not, the Canal is insufficient to irrigate the entire Subject Property.
Finally, the utility and similar uses allowed in the EFU zone, such as utility facilities,
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 96 of 110
Exhibit "G" to Ordinance 2022-011
transmission towers, personal use airports, solar power generating facilities, etc.)
are impracticable on the Subject Property due to its small size (approx. 19 acres)
and the fact that it is already partially developed.
The Hearings Officer finds that the above subsection does not set forth a criterion, but
rather explains how to interpret and implement the various requirements set forth in OAR
660-004-0028(6).
For exceptions to Goals 3 or 4, local governments are required to
demonstrate that only the following uses or activities are
impracticable:
(a) Farm use as defined in ORS 215.203;
(b) Propagation or harvesting of a forest product as specified in
OAR 660-0330120; and
(c) Forest operations or forest practices as specified in OAR 660-
006-0025(2)(a).
FINDING: The Applicant provided the following response in the burden of proof statement:
Applicant is not requesting an exception to Goal 3 because the land is not suitable
for agricultural use, as explained above. Applicant requests an exception to Goal
14.
The Hearings Officer finds this provision is inapplicable.
(4) A conclusion that an exception area is irrevocably committed shall be
supported by findings of fact that address all applicable factors of
section (6) of this rule and by a statement of reasons explaining why
the facts support the conclusion that uses allowed by the applicable
goal are impracticable in the exception area.
FINDING: The Hearings Officer's findings of fact that address all applicable factors of
section (6) of this rule are set forth below.
(5)
Findings of fact and a statement of reasons that land subject to an
exception is irrevocably committed need not be prepared for each
individual parcel in the exception area. Lands that are found to be
irrevocably committed under this rule may include physically
developed lands.
FINDING: The Applicant's proposed exception area consists of three (3) Tax Lots (301,
305, and 500), all of which are the subject of this application. The Hearings Officer's
findings of fact regarding the exception area are addressed to all three tax lots collectively.
(6) Findings of fact for a committed exception shall address the following
factors:
(a) Existing adjacent uses;
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 97 of 110
Exhibit "G" to Ordinance 2022-011
FINDING: The Applicant provided the following response in the burden of proof statement:
See above discussion of "characteristics of adjacent lands," which discusses the
existing adjacent uses.
The Hearings Officer finds that the Applicant has not met its burden of proof for an
"irrevocably committed" exception based on existing adjacent uses, as set forth in the
findings above.
(b) Existing public facilities and services (water and sewer lines, etc.);
FINDING: The Applicant provided the following response in the burden of proof statement:
There are no public water or sewer facilities on the Subject Property; it is served
by an on -site, DEQ-approved sewage disposal system and has an on -site well that
provides potable water to the Subject Property. Further, Applicant's proposal to
develop the Subject Property with RI zone allowed uses will not require public
water or sewer facilities. The Subject Property will continue to be serviced by the
Deschutes Rural Fire District #2 and the Deschutes County Sheriff.
There are no existing public water and sewer lines on the subject property. The Hearings
Officer finds that the Applicant has not met its burden of proof for an "irrevocably
committed" exception based on existing public facilities and services (water and sewer
lines, etc.).
(c) Parcel size and ownership patterns of the exception area and adjacent
lands:
(A) Consideration of parcel size and ownership patterns under
subsection (6)(c) of this rule shall include an analysis of
how the existing development pattern came about and
whether findings against the goals were made at the time
of partitioning or subdivision. Past land divisions made
without application of the goals do not in themselves
demonstrate irrevocable commitment of the exception
area.
FINDING: The Applicant provided the following response in the burden of proof statement:
The Subject Property consists of three tax lots that total approximately 19.12 acres;
Tax Lot 301 is 15.06 acres, Tax Lot 305 is 3.00 acres, and Tax Lot 500 is 1.06
acres. Tax Lot 301 was formerly part of Tax Lot 300 (discussed below). It was
created in 1977 and at that time consisted of 18.06 acres. In 1981, it was divided
to create the 3.0 acre Tax Lot 305. Tax Lot 500 was created in 1972 and was
originally 7.27 acres. In 1991, 0.21 acres were removed to create Tax Lot 501
(right of way for the highway).
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 98 of 110
Exhibit "G" to Ordinance 2022-011
Land use records for the Subject Property do not appear to exist prior to 1978. In
April 1978, the owner of the Subject Property - which at that time existed as only
Tax Lots 301 and 500 - applied for a rezone from A -I to C-2 to support the existing
tractor sales and service operation. At that time, the Subject Property had been
designated by the Deschutes County Comprehensive Plan and the Redmond
Comprehensive plan as being for urban development. Exhibit 11 at p. 16. The
Subject Property at that time was within the sewer and water service boundaries,
and electrical service, telephone service, and other public facilities were being
supplied to the area. The County chose to rezone a portion of the Subject Property
(Tax Lot 500) to A-S rather than C-2 and to leave Tax Lot 301 zoned A-1.
The adjacent properties to the north and east (Map/Tax Lots 1612230000202, -
300 & -306) are all zoned EFU and are under separate ownership. Tax Lot 202 is
5.63 acres and is owned by Robert E. Fate and Stacey L. Andrews. It appears to
have been created by partition plat in or around 2017. Tax Lot 300 is 21.56 acres
and is owned by James L. Werth. It was formerly part of TL 1612 (from which Tax
Lot 301, part of the Subject Property, was also created). TL 1612 was divided
numerous times over the years, culminating in the creation of Tax Lot 300 in
around 1988. Tax Lot 306 is owned by William Edward Kirzy and is 20.54 acres. It
appears to have been created in 1987 as Minor Land Partition No. MP-87-20.
The adjacent property to the south (Map/Tax Lot 1612230000700) is open space
and park land owned by the State of Oregon Parks & Recreation Department. Tax
Lot 700 is 35.89 acres. It appears to have been created from TL 1612 in or around
1961.
The adjacent properties to the west consist of lots making up the Whispering Pines
subdivision (Map/Tax Lots 161223C000100, 200, 300, 400, 500, 600, 700, &.800
- platted in 1968; Map/Tax Lots 161223800106 - platted in 1969; Map/Tax Lots
161223800200, 201, 202, 203, 204, 205, 206, & 207 - platted in 1977). These are
all zoned RR-10, are under 3 acres in size, and are under separate ownership.
The majority of the soils on these properties are classified as 58C, which is not
considered "high -value" farmland and as such would likely not be put to any
agricultural use.
The Hearings Officer finds that the Applicant has addressed consideration of parcel size
and ownership patterns pursuant to this rule, and analysis of how the existing development
pattern came about.
Only if development (e.g., physical improvements such
as roads and underground facilities) on the resulting
parcels or other factors makes unsuitable their
resource use or the resource use of nearby lands can
the parcels be considered to be irrevocably committed.
FINDING: The Applicant provided the following response in the burden of proof statement:
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 99 of 110
Exhibit "G" to Ordinance 2022-011
The Subject Property is also completely constrained for additional development
and use due to the Pilot Butte Canal on the east (and bisecting the property). This
canal sits within a federal right of way and, therefore, precludes development or
use. Given this fact, and the subdivision to the west, the Subject Property contains
severe constraints that preclude operating the property as a single farming
operation or for significant agricultural use.
The Hearings Officer finds that the Applicant has established that the Pilot Butte Canal
and associated easement make the exception area unsuitable for resource use. There is
not a showing that this factor makes resource use of nearby lands unsuitable. The
Hearings Officer observes that, whether the property is suitable for resource use does not
constitute a finding that the subject property is not suitable for rural use.
Resource and nonresource parcels created and uses
approved pursuant to the applicable goals shall not be
used to justify a committed exception. For example, the
presence of several parcels created for nonfarm
dwellings or an intensive commercial agricultural
operation under the provisions of an exclusive farm use
zone cannot be used to justify a committed exception
for the subject parcels or land adjoining those parcels.
FINDING: The Applicant does not rely on any parcels created or uses approved pursuant
to the applicable goals to justify its request for an irrevocably committed exception.
(B) Existing parcel sizes and contiguous ownerships shall be
considered together in relation to the land's actual use.
For example, several contiguous undeveloped parcels
(including parcels separated only by a road or highway)
under one ownership shall be considered as one farm or
forest operation. The mere fact that small parcels exist
does not in itself constitute irrevocable commitment.
Small parcels in separate ownerships are more likely to be
irrevocably committed if the parcels are developed,
clustered in a large group or clustered around a road
designed to serve these parcels. Small parcels in separate
ownerships are not likely to be irrevocably committed if
they stand alone amidst larger farm or forest operations,
or are buffered from such operations;
FINDING: The Applicant provided the following response in the burden of proof statement:
The parcel sizes for the Subject Property and the properties adjacent to it range
from 1.06 acres to 35.89 acres. The majority of the parcels surrounding the Subject
Property are part of the Whispering Pines residential subdivision - they are each
under 3 acres. The only contiguous ownerships are Tax Lots 305 and 500, which
are owned by Applicant and part of the Subject Property. Tax Lot 301, also part of
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 100 of 110
Exhibit "G" to Ordinance 2022-011
the Subject Property, is owned by a principal of Applicant. The Subject Property
does not stand alone amidst larger farm or forest operations and are not buffered
from such operations -there are no such operations in the vicinity of the Subject
Property.
The Hearings Officer finds that the three parcels that constitute the subject property total
approximately 19 acres in size. The mere fact that smaller parcels exist in the surrounding
area and are in separate ownerships does not establish "irrevocable commitment." The
parcels are not clustered in a large group or clustered around a road designed to serve
those parcels. There are two adjacent, smaller EFU-zoned properties that are receiving
tax deferral and appear to be in agricultural use as evidenced by aerial photographs. No
finding is made on whether such properties are engaged in "farm use," however, as that
is not relevant to this determination. The Hearings Officer finds that the Applicant has not
met its burden of proof on this criterion. This criterion is not met.
(d) Neighborhood and regional characteristics;
FINDING: The Applicant provided the following response in the burden of proof statement:
The area, or "neighborhood," in which the Subject Property lies can be
characterized generally as developed residential properties. While some are zoned
EFU, they are not being used for agricultural purposes. The general area around
the Subject Property appears to consist of native vegetation - grasses and juniper
trees - and is largely infertile soil (58C). Deschutes Junction is nearby and is also
zoned RI, and consists of a mixture of commercial and industrial uses, with some
hobby farms and rural residences. Approval of the proposed exception would be
consistent with the actual character and land use pattern in the neighborhood.
Using an approximately '/4-mile radius around the subject property, the vicinity is
comprised of a mix of RR-10, EFU, and OS&C zoning.
Zoning within approximately'/4 mile of the subject
property (Tax Lot 305 highlighted for reference)
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 101 of 110
Exhibit "G" to Ordinance 2022-011
Aerial Photography (2020) within approximately'/4 mile of the subject property
(Tax Lot 305 highlighted for reference)
The Hearings Officer finds that the Applicant addressed neighborhood characteristics, but
did not address regional characteristics. The Hearings Officer finds the Applicant did not
meet its burden of proof on this criterion. This criterion is not met.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 102 of 110
Exhibit "G" to Ordinance 2022-011
(e) Natural or man-made features or other impediments
separating the exception area from adjacent resource land.
Such features or impediments include but are not limited to
roads, watercourses, utility lines, easements, or rights -of -way
that effectively impede practicable resource use of all or part
of the exception area;
FINDING: The Applicant provided the following response in the burden of proof statement:
The Subject Property is separated from resource area (zoned EFU) by the Pilot
Butte Canal and Highway 97. It is also currently developed with commercial /
industrial buildings that have been historically used as equipment service / repair
and rental facilities. Tax Lot 301 is landlocked and only accessible via a bridge
easement located on or near Tax Lots 500 and 305. These features impede
practicable resource use of the exception area.
The Hearings Officer finds that, while some man-made features separate the exception
area from some adjacent resource land, there are other resource lands immediately
adjacent to the subject property. Nonetheless, as determined in the findings above, the
Hearings Officer finds that both the Pilot Butte Canal and Highway 97 effectively impede
practicable resource use (farm use) of all or part of the subject property. Again, the
Hearings Officer observes that this finding does not constitute a determination that the
subject property is unsuitable for any rural use. This criterion is met.
(f) Physical development according to OAR 660-004-0025; and
FINDING: OAR 660-004-0025 states:
660-004-0025 Exception Requirements for Land Physically Developed to
Other Uses
(1) A local government may adopt an exception to a goal when the land
subject to the exception is physically developed to the extent that it
is no longer available for uses allowed by the applicable goaL Other
rules may also apply, as described in OAR 660004-0000(1).
(2) Whether land has been physically developed with uses not allowed
by an applicable goal will depend on the situation at the site of the
exception. The exact nature and extent of the areas found to be
physically developed shall be clearly set forth in the justification for
the exception. The specific area(s) must be shown on a map or
otherwise described and keyed to the appropriate findings of fact. The
findings of fact shall identify the extent and location of the existing
physical development on the land and can include information on
structures, roads, sewer and water facilities, and utility facilities. Uses
allowed by the applicable goal(s) to which an exception is being taken
shall not be used to justify a physically developed exception.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 103 of 110
Exhibit "G" to Ordinance 2022-011
The Applicant provided the following response in the submitted burden of proof statement:
The Subject Property is developed with a bridge over the Pilot Butte Canal, two
commercial buildings and their accessory buildings, and a double -wide mobile
home. The two commercial buildings, used for equipment service / repair and
rental / sales, total 2,864 square feet combined. The Subject Property has been
developed with an approximately 7,500 square foot warehouse since the early
1990s. While this development does not preclude resource uses per se, the
historic use of the two commercial buildings and their accessory structures and
Applicant's plan to continue that historic use, along with the fact that the only
access to the landlocked Tax Lot 301 is via these developed lots, weighs in favor
of a determination that the Subject Property is irrevocably committed to urban
uses.
The Hearings Officer found above that the Applicant need not obtain a non -conforming
use verification to establish "physical development." However, the Hearings Officer finds
that the Applicant has not met its burden of proving that the subject property has been
physically developed with uses not allowed by Goal 14 to the extent that it is no longer
available for uses allowed by Goal 14. These criteria are not met.
(g)
Other relevant factors.
FINDING: The Applicant provided the following response in the burden of proof statement:
Highway 97 runs along the east side of the Subject Property. This detracts from
the suitability of the Subject Property for resource or other uses permitted in the
EFU zone. The Pilot Butte Canal also bisects a portion of the Subject Property or
forms a border to similar effect.
As determined in the findings above, the Hearings Officer finds that both the Pilot Butte
Canal and Highway 97 effectively impede practicable resource use of all or part of the
subject property. Again, the Hearings Officer observes that this finding does not constitute
a determination that the subject property is unsuitable for any rural use. This criterion is
met.
(7)
The evidence submitted to support any committed exception shall, at a
minimum, include a current map or aerial photograph that shows the
exception area and adjoining lands, and any other means needed to
convey information about the factors set forth in this rule. For example,
a local government may use tables, charts, summaries, or narratives to
supplement the maps or photos. The applicable factors set forth in
section (6) of this rule shall be shown on the map or aerial photograph.
FINDING: The Applicant provided a current area map and aerial photograph showing the
subject property and adjoining lands, included as Exhibit 1 of the application materials.
This criterion is met.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 104 of 110
Exhibit "G" to Ordinance 2022-011
DIVISION 14, APPLICATION OF THE STATEWIDE PLANNING GOALS TO NEWLY
INCORPORATED CITIES, ANNEXATION; AND URBAN DEVELOPMENT ON RURAL
LANDS
OAR 660-014-0030, Rural Lands Irrevocably Committed to Urban Levels of
Development
(1) A conclusion, supported by reasons and facts, that rural land is
irrevocably committed to urban levels of development can satisfy the
Goal 2 exceptions standard (e.g., that it is not appropriate to apply
Goals 14's requirement prohibiting the establishment of urban uses
on rural lands). If a conclusion that land is irrevocably committed to
urban levels of development is supported, the four factors in Goal 2
and OAR 660-004-0020(2) need not be addressed.
FINDING: The Applicant provided the following response in the burden of proof statement:
The proposed exception area - the Subject Property - is irrevocably committed to
urban levels of development. Specifically, it is irrevocably committed to industrial
and quasi -commercial uses at urban levels, as has been shown above. The
Subject Property is unsuitable for rural uses including farming because of its size,
configuration, poor quality soils, lack of sufficient irrigation, and the highway
abutting it. Because the Subject Property has been irrevocably committed,
Applicant need not address the four factors in Goal 2 and OAR 660-004- 0020(2).
For the reasons set forth above, the Hearings Officer finds: (1) the subject property is rural
land; (2) the Applicant is not required to obtain a Goal 14 exception for purposes of the
subject applications; therefore, Goal 2 exceptions standards are not applicable; (3) in the
alternative, if the Board of County Commissioners disagrees with the Hearings Officer's
findings on (1) and (2) herein, and determines that the Applicant is required to obtain a
Goal 14 exception, the record does not support a finding that the subject property is
irrevocably committed to urban levels of development.
(2) A decision that land has been built upon at urban densities or
irrevocably committed to an urban level of development depends on
the situation at the specific site. The exact nature and extent of the
areas found to be irrevocably committed to urban levels of
development shall be clearly set forth in the justification for the
exception. The area proposed as land that is built upon at urban
densities or irrevocably committed to an urban level of development
must be shown on a map or otherwise described and keyed to the
appropriate findings of fact.
FINDING: The Applicant provided the following response in the burden of proof statement:
The Subject Property is irrevocably committed to an urban level of development as
set forth in detail above. Applicant has submitted with this Application maps and
aerial photos showing the Subject Property (Exhibit 1) and deeds to the Subject
Property containing a legal description (Exhibits 15-17).
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 105 of 110
Exhibit "G" to Ordinance 2022-011
The Hearings Officer finds that the Applicant has not met its burden of proving that the
subject property has been built upon at urban densities and/or is irrevocably committed to
urban levels of development. The Applicant has not established "the exact nature and
extent of the areas found to be irrevocably committed to urban levels of development" as
justification for the exception.
Nonetheless, as set forth in the findings above, the Hearings Officer has determined that
a Goal 14 exception is not required. If the Board of County Commissioners agrees with
the Hearings Officer's findings, the Applicant's alternative request for a Goal 14 exception
need not be approved.
(3) A decision that land is committed to urban levels of development shall
be based on findings of fact, supported by substantial evidence in the
record of the local proceeding, that address the following:
(a) Size and extent of commercial and industrial uses;
FINDING: The Applicant provided the following response in the burden of proof statement:
The Subject Property is approximately 19.12 acres in size. It is currently developed
with a doublewide mobile home on Tax Lot 301, and facilities used for large
equipment service / repair and rentals / sales. The Subject Property has been used
for equipment service, etc. for the majority of at least the past 40 years. The land
use history also includes documentation that the property has been used,
consistently, for industrial uses and not for any farm or agricultural use. This
includes heavy equipment rental, repair, and storage, as well as various machine
shop use and as a diesel repair shop. The current buildings (decades old), were
designed for such uses and maintained in reasonably good working order to
continue such use.
The Hearings Officer found above that the Applicant need not obtain a non -conforming
use verification to establish "irrevocable commitment." However, the Applicant's proof on
this criterion relies on industrial uses that appear to have been discontinued and, thus, are
no longer non -conforming uses. Of the subject property's approximately 19 acres, aerial
photography indicates that approximately 4.5 acres have been allocated to industrial use
on the property. This constitutes less than 1/3 of the subject property.
The Hearings Officer finds that the Applicant has not met its burden of proving that the
size and extent of "commercial or industrial" uses on the subject property demonstrates it
is irrevocably committed to urban levels of development.
Nonetheless, as set forth in the findings above, the Hearings Officer has determined that
a Goal 14 exception is not required. If the Board of County Commissioners agrees with
the Hearings Officer's findings, the Applicant's alternative request for a Goal 14 exception
need not be approved.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 106 of 110
Exhibit "G" to Ordinance 2022-011
(b) Location, nurnber and density of residential dwellings;
FINDING: The Applicant provided the following response in the burden of proof statement:
The Subject Property is surrounded by residential dwellings. There are 17 lots to
the west of the Subject Property that each contain a residential dwelling, all of
which are part of the Whispering Pines subdivision. These properties are less than
3 acres each and the area is zoned RR-10. In addition, Tax Lot 306 contains two
residential dwellings, one of which is a manufactured home; and Tax Lot 300
appears to contain at least one residential dwelling.
The Hearings Officer finds that the subject property is not developed with residential
dwellings and that surrounding residential development is not relevant to the determination
under this criterion of "irrevocably committed." Under this consideration, the Applicant has
not established that the subject property is irrevocably committed to urban levels of
development.
Nonetheless, as set forth in the findings above, the Hearings Officer has determined that
a Goal 14 exception is not required. If the Board of County Commissioners agrees with
the Hearings Officer's findings, the Applicant's alternative request for a Goal 14 exception
need not be approved.
(c) Location of urban levels of facilities and services; including at
least public water and sewer facilities; and
FINDING: The Applicant provided the following response in the burden of proof statement:
The Subject Property is not serviced by public water or sewer facilities.
Under this consideration, the Applicant has not established that the subject property is
irrevocably committed to urban levels of development because there are no urban levels
of facilities and services on the property.
Nonetheless, as set forth in the findings above, the Hearings Officer has determined that
a Goal 14 exception is not required. If the Board of County Commissioners agrees with
the Hearings Officer's findings, the Applicant's alternative request for a Goal 14 exception
need not be approved.
(d) Parcel sizes and ownership patterns.
FINDING: The Applicant provided the following response in the burden of proof statement:
Parcel sizes and ownership patterns for the Subject Property and those adjacent
to it are discussed in detail above. That discussion is incorporated here.
Under this consideration, the Applicant has not established that the subject property is
irrevocably committed to urban levels of development due to parcel sizes and ownership
patterns of the subject property.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 107 of 110
Exhibit "G" to Ordinance 2022-011
Nonetheless, as set forth in the findings above, the Hearings Officer has determined that
a Goal 14 exception is not required. If the Board of County Commissioners agrees with
the Hearings Officer's findings, the Applicant's alternative request for a Goal 14 exception
need not be approved.
(4) A conclusion that rural land is irrevocably committed to urban
development shall be based on all of the factors listed in section (3)
of this rule. The conclusion shall be supported by a statement of
reasons explaining why the facts found support the conclusion that
the land in question is committed to urban uses and urban level
development rather than a rural level of development.
FINDING: The Applicant provided the following response in the burden of proof statement:
As discussed in detail above, the Subject Property is irrevocably committed to
urban development because (1) it does not constitute agricultural land and is not
suitable for farm or forest use; (2) it is a relatively small parcel (19.12 acres); (3) it
has been in use as a large equipment service / repair and rental / sales facility for
the majority of at least the last 40 years; (4) there are no commercial agricultural
activities taking place on the adjacent EFU land - rather, that land is being used
largely for residential purposes; and (5) it is adjacent to a busy highway. The public
facilities and services - e.g., water and sewer - are not servicing the Subject
Property but there is sufficient private infrastructure in place to support the level of
urban use that has been taking place on the Subject Property for decades, and
that Applicant wishes to have occur on the Subject Property should this Application
be approved.
For all the reasons set forth in the findings above, the Hearings Officer finds that the
Applicant has not established that the subject property is irrevocably committed to urban
levels of development.
Nonetheless, as set forth in the findings above, the Hearings Officer has determined that
a Goal 14 exception is not required. If the Board of County Commissioners agrees with
the Hearings Officer's findings, the Applicant's alternative request for a Goal 14 exception
need not be approved.
(5)
More detailed findings and reasons must be provided to demonstrate
that land is committed to urban development than would be required
if the land is currently built upon at urban densities.
FINDING: The Applicant provided the following response in the burden of proof statement:
The Application supports the proposed exception and demonstrates that the site
is irrevocably committed to urban development.
Under this consideration, the Applicant has not established that the subject property is
irrevocably committed to urban levels of development. Nonetheless, as set forth in the
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 108 of 110
Exhibit "G" to Ordinance 2022-011
findings above, the Hearings Officer has determined that a Goal 14 exception is not
required. If the Board of County Commissioners agrees with the Hearings Officer's
findings, the Applicant's alternative request for a Goal 14 exception need not be approved.
OREGON REVISED STATUTES (ORS)
Chapter 197, Comprehensive Land Use Planning
ORS 197.732, Goal Exceptions
(2) A local government may adopt an exception to a goal if:
(a) The land subject to the exception is physically developed to
the extent that it is no longer available for uses allowed by the
applicable goal;
(b) The land subject to the exception is irrevocably committed as
described by Land Conservation and Development
Commission rule to uses not allowed by the applicable goal
because existing adjacent uses and other relevant factors
make uses allowed by the applicable goal impracticable; or (c)
The following standards are met:
(A) Reasons justify why the state policy embodied in the
applicable goals should not apply;
(B) Areas that do not require a new exception cannot
reasonably accommodate the use;
(C) The long term environmental, economic, social and
energy consequences resulting from the use at the
proposed site with measures designed to reduce
adverse impacts are not significantly more adverse
than would typically result from the same proposal
being located in areas requiring a goal exception other
than the proposed site; and
(D) The proposed uses are compatible with other adjacent
uses or will be so rendered through measures designed
to reduce adverse impacts.
FINDING: The Applicant provided the following response in the burden of proof statement:
Applicant has explained in detail above the reasons for which it meets the
requirements of ORS 197.732(2)(b), i.e., that the Subject Property is irrevocably
committed to urban use. That explanation is incorporated here.
The Hearings Officer finds that the Applicant has not established that the subject property
is either physically developed to the point that rural uses are no longer available and/or is
irrevocably committed to urban levels of development. Nonetheless, as set forth in the
findings above, the Hearings Officer has determined that a Goal 14 exception is not
required. If the Board of County Commissioners agrees with the Hearings Officer's
findings, the Applicant's alternative request for a Goal 14 exception need not be approved.
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 109 of 110
Exhibit "G" to Ordinance 2022-011
IV. CONCLUSION & RECOMMENDATION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer
finds that the Applicant has met the burden of proof necessary to justify changing the Plan
Designation of the subject property from Agriculture to Rural Industrial and Zoning of the
subject property from Exclusive Farm Use to Rural Industrial through effectively
demonstrating compliance with the applicable criteria of DCC Title 18 (the Deschutes
County Zoning Ordinance), the Deschutes County Comprehensive Plan, and applicable
sections of OAR and ORS. The Hearings Officer finds that no Statewide Planning Goal
exceptions are required. The Applicant's alternative request for a Goal 14 Exception is not
supported by substantial evidence and should be denied.
The Deschutes County Board of Commissioners is the final local review body for the
applications before the County. DCC 18.136.030. The Hearings Officer recommends
approval of the requested plan amendment and zone change with the proposed condition
of approval set forth herein.
Dated this 12t" day of July, 2022.
Stephanie Marshall, Hearings Officer
File Nos. 247-21-000881-PA, 882-ZC
Hearings Officer Decision and Recommendation Page 110 of 110
Exhibit "G" to Ordinance 2022-011
Skidmore Consulting, LLC
Land Use Planning & Development Services
07/18/23 Expanded ESEE Analyses
Introduction
This expanded 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 had submitted a more condensed version to the record on June 23, 2023. This
ESEE addresses all permissible and conditional uses listed in DCC 18.100.
As mentioned in that submittal, although the subject property is located within the
Landscape Management Road combining zone, the resource that the LM combining zone
looks to protect - scenic views - is diminished at this point along Highway 97. The scenic
impacts from a conflicting use whether it be a feed lot, a substation, a cell tower, or a building
to house a welding business are all generally the same. None of the allowed or conditional
uses would enhance or detract from the view at this point along Highway 97 due to the fact
that there is a hill that obscures views to the west and there is a rural residential subdivision
developed on the hill. The view from Highway 97 consists of roof tops, siding of the houses,
the hill, and the existing structures on the subject property. Additional structures for various
types of uses on the subject property will only minimally affect the view. If there were
unobstructed views of, for example, the Three Sisters or other Cascade peaks, or perhaps a
view of the Deschutes River, those impacts could be significant. This is not the case for the
subject property and the viewshed provided by the adjoining property to the west.
As the Board considers whether or how to allow new conflicting uses, the context of the site
and the value it contains as a Goal 5 resource is important. Here, the relevant context
includes: diminished viewshed quality, existing development on adjoining property, and
development on the subject property.
Conflicting Use
Positive Economic
Consequences of Allowing
Negative Economic
Consequences of Allowing
Continuing to allow each of
The County's original ESEE
the conflicting uses would
analysis contained in
provide direct economic
Ordinance 92-052 notes that
benefits to the owners of the
"[t]he economic impact of
subject properties as well as
maintaining the visual quality
Common to all Conflicting Uses
the various industries that
of the area would be
would market and develop
positive. Deschutes County
the new uses.
would remain a desirable
place to live, thereby
For commercial uses,
ongoing employment
maintaining neighborhood
property values. Maintaining
1
Exhibit I to Ord. 2023-015
Exhibit 6
Page 1 of 40
Skidmore Consulting; LLC
Land Use Planning & Development Services
Positive Economic
Consequences of Allowing
Negative Economic
Consequences of Allowing
opportunities and income
streams are anticipated.
The subject property would
offer needed services to the
rural land owners between
Bend and Redmond.
Conversations with
commercial brokers reveal
high demand and low
vacancies for Industrial land
in Central Oregon. The
Quarterly Compass
Commercial industry report
identifies that there is 0.80%
vacancy rate in the Bend
industrial market and a
2.45% vacancy rate in the
Redmond industrial market.
Additional supply of such
industrial land will provide
business opportunities.
or enhancing visual quality
makes the county a more
attractive place visit, thereby
attracting more visitors and
inducing people to stay
longer."
Although those observations
are still generally true 30
years later, it is undeniable
that at this location along
Highway 97 the scenic
viewshed is of marginal
value. Accordingly, there
would be minimal detraction
to the viewshed from RI
development on site. The
identified conflicting uses
permissible in the RI zone on
this particular site will have a
minimal negative economic
consequence on the
property or the county
overall.
Farming or forest use.
Farm or forest uses on the
subject property are already
permissible via the existing
EFU zoning and the property
has been zoned EFU since
the 1992 adoption of the LM
regulations. Allowance of
such uses was contemplated
in the original ESEE and does
not warrant a new ESEE here
as it is a not a new conflicting
use.
Farm or forest uses on the
subject property are already
permissible via the existing
EFU zoning and the property
has been zoned EFU since
the 1992 adoption of the LM
regulations. Allowance of
such uses was contemplated
in the original ESEE and does
not warrant a new ESEE here
as it is a not a new conflicting
use.
Primary processing, packaging,
treatment, bulk storage and
distribution of the following
products:
Additional job opportunities
associated with processing,
packaging and distribution of
various agricultural, timber -
related and aggregate -
related products on site
would be a positive
economic consequence for
Processing, packaging and
distribution of various
agricultural, timber -related
and aggregate -related
products on site would have
no negative economic
consequences which differ
from the "Common"
2
Exhibit I to Ord. 2023-015
Exhibit 6
Page 2 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Economic
Consequences of Allowing
Negative Economic
Consequences of Allowing
1. Agricultural products,
including foodstuffs, animal and
fish products, and animal feeds.
2. Ornamental horticultural
products and nurseries.
3. Softwood and hardwood
products excluding pulp and
paper manufacturing.
4. Sand, gravel, clay and other
mineral products.
the community. Such uses
could provide needed
construction materials
(hardwood products &
sand/gravel) in closer
proximity to projects located
in the vicinity versus driving
to Redmond or Bend for
such products.
economic consequences
noted above.
Additionally, processing
facilities on the subject
property are already
conditionally permissible via
the existing EFU zoning and
the property has been zoned
EFU since the 1992 adoption
of the LM regulations.
Allowance of such uses was
contemplated in the original
ESEE and does not warrant a
new ESEE here as it is a not a
new conflicting use.
Residence for caretaker or night
watchman on property.
A residence for a caretaker
would provide economic
benefit to the caretaker and
construction of such a
residence would be positive
economic activity for the
housing construction
industry in central Oregon. It
could also have a positive
economic consequence by
deterring theft of materials
on site impacting the specific
business.
There are no negative
economic consequences
from a residence for a
caretaker on the property
which differ from the
"Common" economic
consequences noted above.
Freight Depot, including the
loading, unloading, storage and
distribution of goods and
materials by railcar or truck.
Additional job opportunities
arising from a Freight Depot
on site would be a positive
economic consequence for
the community.
Construction of likely
necessary access
improvements to Highway 97
for a use with such
substantial traffic impacts
could interrupt traffic and
cause delays which can
disrupt economic activity.
Contractor's or building
materials business and other
construction -related business
including plumbing, electrical,
roof, siding, etc., provided such
use is wholly enclosed within a
building or no outside storage is
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
3
Exhibit I to Ord. 2023-015
Exhibit 6
Page 3 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Economic
Consequences of Allowing
Negative Economic
Consequences of Allowing
permitted unless enclosed by
sight -obscuring fencing.
Ice or cold storage plant.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community. For example,
The benefits offered to the
local brewery and cidery
industries could be
substantial.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
_
Wholesale distribution outlet
including warehousing but
excluding open outside storage.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community.
Construction of likely
necessary access
improvements to Highway 97
for a use with such
substantial traffic impacts
could interrupt traffic and
cause delays which can
disrupt economic activity.
Welding, sheet metal or machine
shop provided such is wholly
enclosed within a building or all
outside storage is enclosed by
sight -obscuring fencing.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community. For example,
such a service at this location
could be a benefit to local
homeowners and businesses
who need such service
without the need to drive to
Redmond or Bend for such
services.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above..
4
Exhibit I to Ord. 2023-015
Exhibit 6
Page 4 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Economic
Consequences of Allowing
Negative Economic
Consequences of Allowing
Kennel or a Veterinary clinic.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community. Such a service
at this location could be a
benefit to local homeowners
and businesses who need
such service without the
need to drive to Redmond or
Bend for such services.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above..
Additionally, commercial dog
boarding kennels on the
subject property are already
permissible via the existing
EFU zoning and the property
has been zoned EFU since
the 1992 adoption of the LM
regulations. Allowance of
such uses was contemplated
in the original ESEE and does
not warrant a new ESEE here
as it is a not a new conflicting
use.
Lumber manufacturing and
wood processing except pulp and
paper manufacturing.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
Class I and II road or street
project subject to approval as
part of a land partition,
subdivision or subject to the
standards and criteria
established by DCC 18.116.230.
Additional job opportunities
from a class I or II road
project on site would be a
positive economic
consequence for the
community.
Loss of potential economic
use of the land resulting
from the Class I or II road
project could be a negative
economic consequence for
the community and land
owner.
Class III road or street project.
Additional job opportunities
from allowing a class III road
project on site would be a
positive economic
consequence for the
community.
Loss of potential economic
use of the land resulting
from the Class I or II road
project could be a negative
economic consequence for
the community and land
owner.
5
Exhibit I to Ord. 2023-015
Exhibit 6
Page 5 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Economic
Consequences of Allowing
Negative Economic
Consequences of Allowing
Operation, maintenance, and
piping of existing irrigation
systems operated by an
Irrigation District except as
provided in DCC 18.120.050.
There is an existing Central
Oregon Irrigation District
canal that splits the property.
Continued operation,
maintenance and potential
piping are positive economic
consequences as irrigation
water drives agricultural
economic activity. Further,
piping such canal facilities
would likely improve the
view shed, further enhancing
the economic value of
Deschutes County's view
shed as seen from the
subject property.
There are no negative
economic consequences
from this type of use locating
on the subject property
because of the existing
Central Oregon Irrigation
District facilities adjacent to
and on the property.
Concrete or ready -mix plant.
Such a use on the subject
property could benefit
nearby residents and
agricultural uses by
providing needed services in
close proximity. It also
provides potential
employment opportunities.
Ready mix plants in Bend
and Redmond are all at least
10 miles from this location.
Projects in the rural
residential areas in this
vicinity would benefit from
the shorter trip.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
Petroleum products storage and
distribution.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
6
Exhibit I to Ord. 2023-015
Exhibit 6
Page 6 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Positive Economic
Consequences of Allowing
Negative Economic
Consequences of Allowing
Storage, crushing and processing
of minerals, including the
processing of aggregate into
asphaltic concrete or Portland
Cement Concrete.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community. Further,
availability of such materials
to local land and business
owners could be of benefit
removing time and cost to
travel to Bend or Redmond
for such resource.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
Commercial feedlot, stockyard,
sales yard, slaughterhouse and
rendering plant.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community. Further, such a
use at this location close to
agricultural uses in central
Oregon may provide
additional options for
livestock and similar
operations.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
Railroad trackage and related
facilities.
The Burlington Northern
Santa Fe railroad is roughly
1700 feet east of the
property with Highway 97
and the COID canal between.
Although such facilities are
allowed technically in the RI
Zone, it is highly unlikely the
subject property would ever
actually be utilized for
railroad trackage and related
facilities. Accordingly, the
economic consequences of
allowing such uses are
minimal in this case.
The Burlington Northern
Santa Fe railroad is roughly
1700 feet east of the
property with Highway 97
and the COID canal between.
Although such facilities are
allowed technically in the RI
Zone, it is highly unlikely the
subject property would ever
actually be utilized for
railroad trackage and related
facilities. Accordingly, the
economic consequences of
allowing such uses are
minimal in this case.
7
Exhibit I to Ord. 2023-015
Exhibit 6
Page 7 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Economic
Consequences of Allowing
Negative Economic
Consequences of Allowing
Pulp and paper manufacturing.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
Any use permitted by DCC
18.100.010, which is expected to
exceed the following standards:
1. Lot coverage in excess of
70 percent.
2. Generation of any odor,
dust, fumes, glare,
flashing lights or noise
that is perceptible
without instruments 500
feet from the property
line of the subject use.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community.
Although outside of the
identified impact area, uses
that generate odor, fumes,
glare, flashing lights or noise
perceptible beyond 500 feet
could impact property values
of the rural residential
homes on the subdivision
directly west. This would
have negative economic
consequences for those
landowners.
Manufacture, repair or storage
of articles manufactured from
bone, cellophane, cloth, cork,
feathers, felt, fiber, glass, stone,
paper, plastic, precious or
semiprecious stones or metal,
wax, wire, wood, rubber, yarn or
similar materials, provided such
uses do not create a disturbance
because of odor, noise, dust,
smoke, gas, traffic or other
factors.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community. Further, the
materials used for such
manufacturing could drive
additional local business
opportunities for those
looking to source such
materials.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
Processing, packaging and
storage of food and beverages
including those requiring
distillation and fermentation.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community. The benefits
offered to the local brewery
and cidery industries could
be substantial.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
8
Exhibit I to Ord. 2023-015
Exhibit 6
Page 8 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Economic
_ Consequences of Allowing
Negative Economic
Consequences of Allowing
Public Land Disposal Site
Transfer Station, including
recycling and other related
activities.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community.
Although outside of the
identified impact area, a
transfer station at this
location could have a
negative impact on the value
of the homes in the rural
residential subdivision
directly west of the subject
property.
Mini -storage facility.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community. Providing for
the storage needs of
business and property
owners in proximity would
be an economic benefit as
well to reduce cost of driving
to Bend or Redmond.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
Automotive wrecking yard
totally enclosed by a sight-
obscuring fence.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
Wireless telecommunications
facilities, except those facilities
meeting the requirements of
DCC 18.116.250(A) or (B).
Due to the limited staffing
required on site to operate
such facilities, economic
benefits likely focus on job
opportunities associated
with construction of such
facilities and increased
bandwidth in the vicinity.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
Utility facility.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
9
Exhibit I to Ord. 2023-015
Exhibit 6
Page 9 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Economic
Consequences of Allowing
Negative Economic
Consequences of Allowing
Additionally, commercial
utility facilities on the subject
property are already
conditionally permissible via
the existing EFU zoning and
the property has been zoned
EFU since the 1992 adoption
of the LM regulations.
Allowance of such uses was
contemplated in the original
ESEE and does not warrant a
new ESEE here as it is a not a
new conflicting use.
Manufacturing, storage, sales,
rental, repair and servicing of
equipment and materials
associated with farm and forest
uses, logging, road maintenance,
mineral extraction, construction
or similar rural activities.
Additional job opportunities
from allowing such economic
activity on site would be a
positive economic
consequence for the
community. The central
location of this facility would
be an economic benefit to
farms and similar uses in the
area saving travel time.
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
Electrical substations.
Due to the limited staffing
required on site to operate
such facilities, economic
benefits likely focus on job
opportunities associated
with construction of such
facilities
There are no negative
economic consequences
from this type of use locating
on the subject property
which differ from the
"Common" economic
consequences noted above.
Additionally, commercial
utility facilities on the subject
property are already
conditionally permissible via
the existing EFU zoning and
the property has been zoned
EFU since the 1992 adoption
of the LM regulations.
Allowance of such uses was
contemplated in the original
ESEE and does not warrant a
new ESEE here as it is a not a
new conflicting use.
10
Exhibit I to Ord. 2023-015
Exhibit 6
Page 10 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Economic
Consequences of Allowing
Negative Economic
Consequences of Allowing
Marijuana retailing, subject to
Additional job opportunities
There are no negative
the provisions of DCC 18.116.330.
from allowing such economic
economic consequences
activity on site would be a
from this type of use locating
positive economic
on the subject property
consequence for the
which differ from the
community.
"Common" economic
consequences noted above.
Psilocybin testing laboratories.
Additional job opportunities
There are no negative
from allowing such economic
economic consequences
activity on site would be a
from this type of use locating
positive economic
on the subject property
consequence for the
which differ from the
community.
"Common" economic
consequences noted above.
11
Exhibit I to Ord. 2023-015
Exhibit 6
Page 11 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Social Consequences of
Allowing
Negative Social Consequences of
Allowing
Common to all
Conflicting Uses
The variety of uses permissible in
the RI zone would offer positive
social consequences to nearby
residents in the rural areas
between Redmond and Bend by
offering needed services and
employment opportunities. A
welding sheet metal or machine
shop, for example, located on site
could offer any agricultural
operations in the area access to
those needed services without
having to drive to Redmond or
Bend.
The social value of the LM zone to
preserve the natural appearance of
landscape could be marginally
impacted. As noted in Ordinance 92-
052, "[h]aving good visual quality areas
more accessible to the public
enhances the livability of Deschutes
County. As Deschutes County
continues to urbanize, the need for the
public to have ready access to areas of
good visual quality will become more
important." The same observations
are equally true today, although
mitigated in this case by the
diminished viewshed from Highway 97
adjacent to the subject properties.
Farming or forest use.
Farm or forest uses on the subject
property are already permissible
via the existing EFU zoning and the
property has been zoned EFU since
the 1992 adoption of the LM
regulations. Allowance of such uses
was contemplated in the original
ESEE and does not warrant a new
ESEE here as it is a not a new
conflicting use.
Farm or forest uses on the subject
property are already permissible via
the existing EFU zoning and the
property has been zoned EFU since the
1992 adoption of the LM regulations.
Allowance of such uses was
contemplated in the original ESEE and
does not warrant a new ESEE here as it
is a not a new conflicting use.
Primary processing,
packaging, treatment,
bulk storage and
distribution of the
following products:
1. Agricultural
products, including
foodstuffs, animal and
fish products, and
animal feeds.
2. Ornamental
horticultural products
and nurseries.
3. Softwood and
hardwood products
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site. There
are therefore minimal negative social
consequences of allowing such uses
on site.
Additionally, processing facilities on
the subject property are already
conditionally permissible via the
existing EFU zoning and the property
has been zoned EFU since the 1992
adoption of the LM regulations.
Allowance of such uses was
12
Exhibit I to Ord. 2023-015
Exhibit 6
Page 12 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Social Consequences of
Allowing
Negative Social Consequences of
Allowing
excluding pulp and
paper manufacturing.
4. Sand, gravel, clay
and other mineral
products.
contemplated in the original ESEE and
does not warrant a new ESEE here as it
is a not a new conflicting use.
Residence for
caretaker or night
watchman on
property.
A residence for a caretaker could
create a positive social
consequence by deterring theft of
materials on site and surrounding
properties.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site. There
are therefore minimal negative social
consequences of allowing such uses
on site.
Freight Depot,
including the loading,
unloading, storage and
distribution of goods
and materials by
railcar or truck.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site. There
are therefore minimal negative social
consequences of allowing such uses
on site. Additionally, construction of
necessary access improvements to
Highway 97 for a use with substantial
traffic impacts could interrupt traffic
and minimally affect scenic views on
Highway 97, potentially being a
negative social consequence of
allowing such uses on site.
Contractor's or
building materials
business and other
construction -related
business including
plumbing, electrical,
roof, siding, etc.,
provided such use is
wholly enclosed within
a building or no
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site. There
are therefore minimal negative social
consequences of allowing such uses
on site.
13
Exhibit I to Ord. 2023-015
Exhibit 6
Page 13 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Social Consequences of
Allowing
Negative Social Consequences of
Allowing
outside storage is
permitted unless
enclosed by sight -
obscuring fencing.
Ice or cold storage
plant.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site. There
are therefore minimal negative social
consequences of allowing such uses
on site.
Wholesale distribution
outlet including
warehousing but
excluding open outside
storage.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site. There
are therefore minimal negative social
consequences of allowing such uses
on site. Additionally, construction of
necessary access improvements to
Highway 97 for a use with substantial
traffic impacts could interrupt traffic
and minimally affect scenic views on
Highway 97, potentially being a
negative social consequence of
allowing such uses on site.
Welding, sheet metal
or machine shop
provided such is
wholly enclosed within
a building or all
outside storage is
enclosed by sight-
obscuring fencing.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site. There
are therefore minimal negative social
consequences of allowing such uses
on site.
14
Exhibit I to Ord. 2023-015
Exhibit 6
Page 14 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Social Consequences of
Allowing
Negative Social Consequences of
Allowing
Kennel or a Veterinary
clinic.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities. Such a service at
this location could be benefit to
local homeowners and businesses
who need such service for livestock,
pets, etc. without the need to drive
to Redmond or Bend for such
services.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site. There
are therefore minimal negative social
consequences of allowing such uses
on site.
Additionally, commercial dog boarding
kennels on the subject property are
already permissible via the existing
EFU zoning and the property has been
zoned EFU since the 1992 adoption of
the LM regulations. Allowance of such
uses was contemplated in the original
ESEE and does not warrant a new ESEE
here as it is a not a new conflicting use.
Lumber manufacturing
and wood processing
except pulp and paper
manufacturing.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities. There may be
additional positive social
consequences of a new business
tied to Central Oregon's timber
industry roots.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site. There
are therefore minimal negative social
consequences of allowing such uses
on site.
Class I and II road or
street project subject
to approval as part of a
land partition,
subdivision or subject
to the standards and
criteria established by
DCC 18.116.230.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities. There may also be
new "short cuts" that benefit
residents of the area - a positive
social consequence for those
residents.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site. There
are therefore minimal negative social
consequences of allowing such uses
on site. Further, any minimal negative
social consequence is likely to diminish
further when the construction of such
road or street project is completed.
15
Exhibit I to Ord. 2023-015
Exhibit 6
Page 15 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Positive Social Consequences of
Allowing
Negative Social Consequences of
Allowing
Class III road or street
project.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities. Further, if such a
project improved traffic flow on
Highway 97, there could be positive
social consequences from allowing
such a use.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site. There
are therefore minimal negative social
consequences of allowing such uses
on site. Further, any minimal negative
social consequence is likely to diminish
further when the construction of such
road or street project is completed.
Operation,
maintenance, and
piping of existing
irrigation systems
operated by an
Irrigation District
except as provided in
DCC 18.120.050.
There is an existing Central Oregon
Irrigation District canal that splits
the property. Continued operation,
maintenance and potential piping
are positive social consequences as
irrigation water drives agricultural
economic activity and a rural
country lifestyle.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
Additionally, there is an existing canal
on the subject property. There are
therefore minimal negative social
consequences of allowing such uses
on site.
Concrete or ready -mix
plant.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
Additionally, while a concrete plant is
potentially among uses that present
the most significant impacts to scenic
views, the proposed RI zone limits the
scale of any operation on the subject
property. For example, the height of
any building within the RI zone is
limited to 45 feet pursuant to DCC
18.100.040. Therefore the impact will
not be as significant compared to a
similar use developed within a UGB.
16
Exhibit I to Ord. 2023-015
Exhibit 6
Page 16 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Social Consequences of
Allowing
Negative Social Consequences of
Allowing
Petroleum products
storage and
distribution.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
Additionally, while petroleum storage
and distribution is potentially among
uses that present the most significant
impacts to scenic views, the proposed
RI zone limits the scale of any
operation on the subject property. For
example, the height of any building
within the RI zone is limited to 45 feet
pursuant to DCC 18.100.040. Therefore
the impact will not be as significant
compared to a similar use developed
within a UGB.
Storage, crushing and
processing of minerals,
including the
processing of
aggregate into
asphaltic concrete or
Portland Cement
Concrete.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
Additionally, while mineral operations
are potentially among uses that
present the most significant impacts to
scenic views, the proposed RI zone
limits the scale of any operation on the
subject property. For example, the
height of any building within the RI
zone is limited to 45 feet pursuant to
DCC 18.100.040. Therefore the impact
will not be as significant compared to a
similar use developed within a UGB.
Commercial feedlot,
stockyard, sales yard,
slaughterhouse and
rendering plant.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities. Additional facilities
for livestock operations would be of
value to the local ranching
community.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
17
Exhibit I to Ord. 2023-015
Exhibit 6
Page 17 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Positive Social Consequences of
Allowing
Negative Social Consequences of
Allowing
Additionally, while slaughterhouses
and rendering plants are potentially
among uses that present the most
significant impacts to scenic views, the
proposed RI zone limits the scale of
any operation on the subject property.
For example, the maximum size of any
building within the RI zone is limited to
7,500 square feet of floor space
pursuant to DCC 18.100.040. Therefore
the impact will not be as significant
compared to a similar use developed
within a UGBheight of any structure to
45 feet under DCC 18.100.040.
Therefore, the impact will not be
significant.
Railroad trackage and
related facilities.
The Burlington Northern Santa Fe
railroad is roughly 1700 feet east of
the property with Highway 97 and
the COID canal between. Although
such facilities are allowed
technically in the RI Zone, it is highly
unlikely the subject property would
ever actually be utilized for railroad
trackage and related facilities.
Accordingly, the social
consequences of allowing such
uses are minimal in this case.
The Burlington Northern Santa Fe
railroad is roughly 1700 feet east of the
property with Highway 97 and the
COID canal between. Although such
facilities are allowed technically in the
RI Zone, it is highly unlikely the subject
property would ever actually be
utilized for railroad trackage and
related facilities. Accordingly, the
social consequences of allowing such
uses are minimal in this case.
Pulp and paper
manufacturing.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
Additionally, while pulp and paper
manufacturing plants are potentially
among uses that present the most
significant impacts to scenic views, the
proposed RI zone limits the scale of
any operation on the subject property.
For example, the height of any building
within the RI zone is limited to 45 feet
pursuant to DCC 18.100.040. Therefore
18
Exhibit I to Ord. 2023-015
Exhibit 6
Page 18 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Social Consequences of
Allowing
Negative Social Consequences of
Allowing
the impact will not be as significant
compared to a similar use developed
within a UGB.
Any use permitted by
DCC 18.100.010, which
is expected to exceed
the following
standards:
1. Lot coverage in
excess of 70
percent.
2. Generation of
any odor, dust,
fumes, glare,
flashing lights
or noise that is
perceptible
without
instruments
500 feet from
the property
line of the
subject use.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
Although outside of the identified
impact area, uses that generate odor,
fumes, glare, flashing lights or noise
perceptible beyond 500 feet could
impact property values and lifestyles of
the neighbors in the rural residential
subdivision directly west of the subject
property. Limited enjoyment of
outdoor areas on their private
property could result. This would have
negative social consequences for those
landowners.
Manufacture, repair or
storage of articles
manufactured from
bone, cellophane,
cloth, cork, feathers,
felt, fiber, glass, stone,
paper, plastic, precious
or semiprecious stones
or metal, wax, wire,
wood, rubber, yarn or
similar materials,
provided such uses do
not create a
disturbance because of
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
19
Exhibit I to Ord. 2023-015
Exhibit 6
Page 19 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use >
Positive Social Consequences of
Allowing
Negative Social Consequences of
Allowing
odor, noise, dust,
smoke, gas, traffic or
other factors.
Processing, packaging
and storage of food
and beverages
including those
requiring distillation
and fermentation.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
Public Land Disposal
Site Transfer Station,
including recycling and
other related
activities.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
Although outside of the identified
impact area, a transfer station at this
location could have a negative impact
on the value of the homes in the rural
residential subdivision directly west of
the subject property and associated
dust, odors and other externalities
could impact outdoor lifestyles of
those property owners. Both are
negative social consequences of
allowing this particular use.
Mini -storage facility.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
Automotive wrecking
yard totally enclosed
by a sight -obscuring
fence.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
Wireless
telecommunications
facilities, except those
facilities meeting the
Such a facility could improve
wireless access for our increasingly
wireless -device dependent society.
Tier 3 wireless telecommunications
facilities as they are defined in DCC
18.116.250(C) could be taller than 75
feet with required aviation lighting. The
site and light impacts of such a facility
20
Exhibit I to Ord. 2023-015
Exhibit 6
Page 20 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Positive Social Consequences of
Allowing
Negative Social Consequences of
Allowing
requirements of DCC
18.116.250(A) or (B).
of this magnitude would be difficult if
not impossible to mitigate. Light
pollution could be a concern and
impact the many rural residential
properties in direct and close
proximity. Additionally, the proposed
RI zone limits the height of any
structure to 45 feet under DCC
18.100.040. Therefore, the impact will
not be significant.
Utility facility.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
Additionally, commercial utility
facilities on the subject property are
already conditionally permissible via
the existing EFU zoning and the
property has been zoned EFU since the
1992 adoption of the LM regulations.
Allowance of such uses was
contemplated in the original ESEE and
does not warrant a new ESEE here as it
is a not a new conflicting use.
Manufacturing,
storage, sales, rental,
repair and servicing of
equipment and
materials associated
with farm and forest
uses, logging, road
maintenance, mineral
extraction,
construction or similar
rural activities.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities. Businesses that
have a connection to some of
central Oregon's traditional
industries such as logging and
farming could have overall positive
social consequences.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
21
Exhibit I to Ord. 2023-015
Exhibit 6
Page 21 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Social Consequences of
Allowing
Negative Social Consequences of
Allowing
Electrical substations.
Due to the limited staffing required
on site to operate such facilities,
social benefits likely focus on
access to job opportunities
associated with construction of
such facilities
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
Additionally, commercial utility
facilities on the subject property are
already conditionally permissible via
the existing EFU zoning and the
property has been zoned EFU since the
1992 adoption of the LM regulations.
Allowance of such uses was
contemplated in the original ESEE and
does not warrant a new ESEE here as it
is a not a new conflicting use.
Marijuana retailing,
subject to the
provisions of DCC
18.116.330.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
Psilocybin testing
laboratories.
The positive social value of allowing
such uses on site is access to
additional potential employment
opportunities.
While any development on the subject
property could impact the scenic
quality from Highway 97, the limited
scenic quality from Highway 97 relating
to the subject property will not be
significantly improved through
prohibiting such uses on site.
22
Exhibit I to Ord. 2023-015
Exhibit 6
Page 22 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Environmental
Consequences of Allowing
Negative Environmental
Consequences of Allowing
Farming or forest use.
Farm or forest uses on the
subject property are already
permissible via the existing EFU
zoning and the property has
been zoned EFU since the 1992
adoption of the LM regulations.
A►lowance of such uses was
contemplated in the original
ESEE and does not warrant a
new ESEE here as it is a not a
new conflicting use.
Farm or forest uses on the subject
property are already permissible via
the existing EFU zoning and the
property has been zoned EFU since
the 1992 adoption of the LM
regulations. Allowance of such uses
was contemplated in the original
ESEE and does not warrant a new
ESEE here as it is a not a new
conflicting use.
Primary processing,
packaging, treatment,
bulk storage and
distribution of the
following products:
1. Agricultural
products, including
foodstuffs, animal and
fish products, and
animal feeds.
2. Ornamental
horticultural products
and nurseries.
3. Softwood and
hardwood products
excluding pulp and
paper manufacturing.
4. Sand, gravel, clay
and other mineral
products.
The positive environmental
consequences of such a use
would be the reduced travel
distance and associated reduced
carbon emissions for suppliers
of agricultural products,
ornamental horticultural
products, softwood and
hardwood products or aggregate
products in the vicinity without
having to travel to Bend or
Redmond or elsewhere for
processing, packaging,
treatment, storage or
distribution of their product.
Development of the site with facilities
for such uses could remove existing
trees and brushes that provide
habitat for small vertebrates.
Increased dust from aggregate
activities could impact air quality for
those in close proximity.
Additionally, processing facilities on
the subject property are already
conditionally permissible via the
existing EFU zoning and the property
has been zoned EFU since the 1992
adoption of the LM regulations.
Allowance of such uses was
contemplated in the original ESEE
and does not warrant a new ESEE
here as it is a not a new conflicting
use.
Residence for
caretaker or night
watchman on property.
The positive environmental
consequence of a caretaker
residence on site is the reduced
travel distance and associated
reduced carbon emissions that
result from the commute to and
from the site from a community
in central Oregon. Additionally, a
caretaker or night watchman
Development of the site with facilities
for such uses could remove existing
trees and brushes that provide
habitat for small vertebrates.
23
Exhibit I to Ord. 2023-015
Exhibit 6
Page 23 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Environmental
Consequences of Allowing
Negative Environmental
Consequences of Allowing
may be able to alert potential
wildfires on the subject property.
Freight Depot,
including the loading,
unloading, storage and
distribution of goods
and materials by
railcar or truck.
Due to the nature of the
materials managed at freight
depots, such a use could offer
agricultural uses in the area a
closer distribution point for
commodities such as hay,
reducing carbon emissions for
transport of such products.
Development of the site with facilities
for such uses could remove existing
trees and brushes that provide
habitat for small vertebrate.
Contractor's or building
materials business and
other construction-
related business
including plumbing,
electrical, roof, siding,
etc., provided such use
is wholly enclosed
within a building or no
outside storage is
permitted unless
enclosed by sight -
obscuring fencing.
The positive environmental
consequences of such a use
would be the reduced travel
distance and associated reduced
carbon emissions for such
businesses serving the local
homes and businesses.
Development of the site with facilities
for such uses could remove existing
trees and brushes that provide
habitat for small vertebrates.
Ice or cold storage
plant.
The positive environmental
consequences of such a use
would be the reduced travel
distance and reduced carbon
emissions for those businesses
that requires this type of storage
in southern Deschutes County
versus having to access cold
storage in Redmond.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Wholesale distribution
outlet including
warehousing but
excluding open outside
storage.
The positive environmental
consequences of such a use
would be the reduced travel
distance and reduced carbon
emissions for local businesses
and property owners who could
access such service without
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
24
Exhibit I to Ord. 2023-015
Exhibit 6
Page 24 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Positive Environmental
Consequences of Allowing
having to travel to Redmond or
Bend.
Negative Environmental
Consequences of Allowing
Welding, sheet metal or
machine shop provided
such is wholly enclosed
within a building or all
outside storage is
enclosed by sight -
obscuring fencing.
The positive environmental
consequences of such a use
would be the reduced travel
distance and reduced carbon
emissions for local businesses
and property owners who could
access such service without
having to travel to Redmond or
Bend.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Kennel or a Veterinary
clinic.
The positive environmental
consequences of such a use
would be the reduced travel
distance and reduced carbon
emissions for local businesses
and property owners who could
access such services without
having to travel to Redmond or
Bend.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Additionally, commercial dog
boarding kennels on the subject
property are already permissible via
the existing EFU zoning and the
property has been zoned EFU since
the 1992 adoption of the LM
regulations. Allowance of such uses
was contemplated in the original
ESEE and does not warrant a new
ESEE here as it is a not a new
conflicting use.
Lumber manufacturing
and wood processing
except pulp and paper
manufacturing.
Such a use could offer a shorter
trip for hauling lumber from
areas in central Oregon versus to
mills in Redmond or La Pine
thereby potentially reducing
carbon emissions.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
25
Exhibit I to Ord. 2023-015
Exhibit 6
Page 25 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Environmental
Consequences of Allowing
Negative Environmental
Consequences of Allowing
Class I and 11 road or
street project subject
to approval as part of a
land partition,
subdivision or subject
to the standards and
criteria established by
DCC 18.116.230.
There are minimal positive
environmental consequences
from such a project on the
subject property other than a
potential minimal reduction in
travel time for area residents
and businesses that may benefit
from such a project.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Class III road or street
project.
There are minimal positive
environmental consequences
from such a project on the
subject property versus a
minimal reduction in travel time
for area residents and
businesses that may benefit
from such a project.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Operation,
maintenance, and
piping of existing
irrigation systems
operated by an
Irrigation District
except as provided in
DCC 18.120.050.
There is an existing Central
Oregon Irrigation District canal
that splits the property.
Continued operation,
maintenance and potential
piping of the canal provide
minimal environmental benefit
save for continued delivery of
water to agricultural uses and
habitat offered by such uses.
There are no negative environmental
consequences of allowing such uses
on site.
Concrete or ready -mix
plant.
Such a use on the subject
property could benefit nearby
residents and agricultural uses
by providing needed services in
close proximity. Ready mix
plants in Bend and Redmond are
all at least 10 miles from this
location. Projects in the rural
residential areas in this vicinity
would benefit from the shorter
trip. This would reduce the
carbon footprint of such projects
if travel distance is cut
substantially.
The dust from such uses can
introduce particles into the air,
reducing air quality for the many
nearby rural residential properties
(especially for those with
compromised respiratory systems).
Particulate matter (PM) emissions
from batch plants if inhaled, can
affect the heart and lungs and cause
serious health effects, including
increased risk of heart attacks,
aggravation of asthma, and
decreases in lung function. See EPA
Particulate Matter Pollution link on
list of attachments.
26
Exhibit I to Ord. 2023-015
Exhibit 6
Page 26 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use ,
Positive Environmental
Consequences of Allowing
Negative Environmental
Consequences of Allowing
Petroleum products
storage and
distribution.
Such uses typically do not
contain a retail component so
would not offer a closer fueling
option for local businesses and
property owners. There are
limited positive environmental
consequences of such a use at
the site.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Storage, crushing and
processing of minerals,
including the
processing of aggregate
into asphaltic concrete
or Portland Cement
Concrete.
The positive environmental
consequences of such a use
would be the reduced travel
distance and reduced carbon
emissions for local businesses
and property owners who could
access such goods without
having to travel to Redmond or
Bend.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates. Dust from such uses
could adversely impact nearby
residents and business owners with
respiratory issues.
Commercial feedlot,
stockyard, sales yard,
slaughterhouse and
rendering plant.
The positive environmental
consequences of such a use
would be the reduced travel
distance and reduced carbon
emissions for local livestock
operations that could benefit
from such a facility at this
location.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates. Dust from such uses
could adversely impact nearby
residents and business owners with
respiratory issues.
Railroad trackage and
related facilities.
The Burlington Northern Santa
Fe railroad is roughly 1700 feet
east of the property with
Highway 97 and the COID canal
between. Although such facilities
are allowed technically in the RI
Zone, it is highly unlikely the
subject property would ever
actually be utilized for railroad
trackage and related facilities.
Accordingly, the environmental
consequences of allowing such
uses are minimal in this case.
The Burlington Northern Santa Fe
railroad is roughly 1700 feet east of
the property with Highway 97 and the
COID canal between. Although such
facilities are allowed technically in the
RI Zone, it is highly unlikely the
subject property would ever actually
be utilized for railroad trackage and
related facilities. Accordingly, the
environmental consequences of
allowing such uses are minimal in this
case.
27
Exhibit I to Ord. 2023-015
Exhibit 6
Page 27 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Environmental
Consequences of Allowing
Negative Environmental
Consequences of Allowing
Pulp and paper
manufacturing.
Any use permitted by
DCC 18.100.010, which
is expected to exceed
the following
standards:
1. Lot coverage in
excess of 70
percent.
2. Generation of
any odor, dust,
fumes, glare,
flashing lights
or noise that is
perceptible
without
instruments 500
feet from the
property line of
the subject use.
Such uses typically do not
contain a retail component local
businesses and property owners
could access. There are limited
positive environmental
consequences of such a use at
the site.
Expansion of the lot coverage for
permitted uses generally
wouldn't provide positive
environmental consequences of
such uses on the subject
property. Additional emissions
would not a be a positive
environmental consequence.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates. Dust from such uses
could adversely impact nearby
residents and business owners with
respiratory issues.
Although outside of the identified
impact area, uses that generate odor,
fumes, glare, flashing lights or noise
perceptible beyond 500 feet could
have negative environmental
consequences impacting air quality
for nearby businesses and property
owners. Development of the site for
such a use could remove existing
trees and brushes that provide
habitat for small vertebrates with the
increased lot coverage allowance.
Manufacture, repair or
storage of articles
manufactured from
bone, cellophane,
cloth, cork, feathers,
felt, fiber, glass, stone,
paper, plastic, precious
or semiprecious stones
or metal, wax, wire,
wood, rubber, yarn or
similar materials,
provided such uses do
not create a
disturbance because of
odor, noise, dust,
The positive environmental
consequences of such a use
would be the reduced travel
distance and reduced carbon
emissions for local businesses
and property owners who would
use such services or provide raw
materials for manufacturing
purposes.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
28
Exhibit I to Ord. 2023-015
Exhibit 6
Page 28 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Environmental
Consequences of Allowing
Negative Environmental
Consequences of Allowing
smoke, gas, traffic or
other factors.
Processing, packaging
and storage of food and
beverages including
those requiring
distillation and
fermentation.
The positive environmental
consequences of such a use
would be the reduced travel
distance and reduced carbon
emissions for local businesses
and property owners who would
use such services.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Public Land Disposal
Site Transfer Station,
including recycling and
other related activities.
The positive environmental
consequences of such a use
would be the reduced travel
distance and reduced carbon
emissions for local businesses
and property owners who would
use such services.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Mini -storage facility.
The positive environmental
consequences of such a use
would be the reduced travel
distance and reduced carbon
emissions for local businesses
and property owners who would
use such services.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Automotive wrecking
yard totally enclosed
by a sight -obscuring
fence.
The positive environmental
consequences of such a use
would be the reduced travel
distance and reduced carbon
emissions for local businesses
and property owners who would
use such services.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Wireless
telecommunications
facilities, except those
facilities meeting the
requirements of DCC
18.116.250(A) or (B).
There are no known
environmental benefits from
such a use at the site.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
29
Exhibit I to Ord. 2023-015
Exhibit 6
Page 29 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Positive Environmental
Consequences of Allowing
Negative Environmental
Consequences of Allowing
Utility facility.
Positive environmental
consequences of such a use on
site are limited.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Additionally, commercial utility
facilities on the subject property are
already conditionally permissible via
the existing EFU zoning and the
property has been zoned EFU since
the 1992 adoption of the LM
regulations. Allowance of such uses
was contemplated in the original
ESEE and does not warrant a new
ESEE here as it is a not a new
conflicting use.
Manufacturing,
storage, sales, rental,
repair and servicing of
equipment and
materials associated
with farm and forest
uses, logging, road
maintenance, mineral
extraction,
construction or similar
rural activities.
The positive environmental
consequences of such a use
would be the reduced travel
distance and reduced carbon
emissions for local businesses
and property owners who would
use such services.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Electrical substations.
The positive environmental
consequences of such a use on
site are limited.
Development of the site for such a
use could remove existing trees and
brushes that provide habitat for small
vertebrates.
Additionally, commercial utility
facilities on the subject property are
already conditionally permissible via
the existing EFU zoning and the
property has been zoned EFU since
the 1992 adoption of the LM
regulations. Allowance of such uses
was contemplated in the original
ESEE and does not warrant a new
ESEE here as it is a not a new
conflicting use.
30
Exhibit I to Ord. 2023-015
Exhibit 6
Page 30 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Environmental
Consequences of Allowing
Negative Environmental
Consequences of Allowing
Marijuana retailing,
subject to the
The positive environmental
consequences of such a use
Development of the site for such a
use could remove existing trees and
provisions of DCC
would be the reduced travel
brushes that provide habitat for small
18.116.330.
distance and reduced carbon
emissions for local businesses
and property owners who would
use such services versus having
to travel to Bend.
vertebrates.
Psilocybin testing
There are limited positive
Development of the site for such a
laboratories.
environmental consequences of
use could remove existing trees and
allowing such a use on site.
brushes that provide habitat for small
vertebrates.
31
Exhibit I to Ord. 2023-015
Exhibit 6
Page 31 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Energy Consequences
of Allowing
Negative Energy Consequences of
Allowing
Farming or forest use.
Farm or forest uses on the
subject property are already
permissible via the existing EFU
zoning and the property has
been zoned EFU since the 1992
adoption of the LM regulations.
Allowance of such uses was
contemplated in the original
ESEE and does not warrant a
new ESEE here as it is a not a
new conflicting use.
Farm or forest uses on the subject
property are already permissible via
the existing EFU zoning and the
property has been zoned EFU since
the 1992 adoption of the LM
regulations. Allowance of such uses
was contemplated in the original
ESEE and does not warrant a new
ESEE here as it is a not a new
conflicting use.
Primary processing,
packaging, treatment,
bulk storage and
distribution of the
following products:
1. Agricultural
products, including
foodstuffs, animal and
fish products, and
animal feeds.
2. Ornamental
horticultural products
and nurseries.
3. Softwood and
hardwood products
excluding pulp and
paper manufacturing.
4. Sand, gravel, clay
and other mineral
products.
The positive energy
consequences of such a use
would be the reduced travel
distance and conserved energy
for suppliers of agricultural
products, ornamental
horticultural products, softwood
and hardwood products or
aggregate products in the vicinity
without having to travel to Bend
or Redmond or elsewhere for
processing, packaging,
treatment, storage or
distribution of their product.
The energy usage for these uses
would vary. There could be
substantial energy needs for
processing raw materials into
consumer goods.
Additionally, processing facilities on
the subject property are already
conditionally permissible via the
existing EFU zoning and the property
has been zoned EFU since the 1992
adoption of the LM regulations.
Allowance of such uses was
contemplated in the original ESEE
and does not warrant a new ESEE
here as it is a not a new conflicting
use.
Residence for
caretaker or night
watchman on property.
Such a use would reduce energy
usage associated with travel to
and from the site for security
needs.
There are limited negative energy
consequences associated with such a
use on site.
32
Exhibit I to Ord. 2023-015
Exhibit 6
Page 32 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Energy Consequences
of Allowing
Negative Energy Consequences of
Allowing
Freight Depot,
including the loading,
unloading, storage and
distribution of goods
and materials by
railcar or truck.
Due to the nature of the
materials managed at freight
depots, such a use could offer
agricultural uses in the area a
closer distribution point for
commodities such as hay,
reducing the amount of energy
needed to transport items to
market.
There are limited negative energy
consequences associated with such a
use on site.
Contractor's or building
materials business and
other construction-
related business
including plumbing,
electrical, roof, siding,
etc., provided such use
is wholly enclosed
within a building or no
outside storage is
permitted unless
enclosed by sight -
obscuring fencing.
The positive energy
consequences of such a use
would be the reduced
consumption of energy for such
businesses serving the local
homes and businesses versus
contractors having to drive from
Redmond or Bend.
There are limited negative energy
consequences associated with such a
use on site.
Ice or cold storage
plant.
The positive energy
consequences of such a use
would be the reduced energy
consumption for those
businesses that requires this
type of storage in southern
Deschutes County versus having
to access cold storage in
Redmond.
The energy usage associated with a
cold storage plant is anticipated to be
substantial.
Wholesale distribution
outlet including
warehousing but
excluding open outside
storage.
_
The positive energy
consequences of such a use
would be the reduced energy
consumption for local
businesses and property owners
who could access such service
without having to travel to
Redmond or Bend.
There are limited negative energy
consequences associated with such a
use on site.
Welding, sheet metal or
machine shop provided
such is wholly enclosed
within a building or all
outside storage is
The positive energy
consequences of such a use
would be the reduced energy
consumption for local
businesses and property owners
There are limited negative energy
consequences associated with such a
use on site.
33
Exhibit I to Ord. 2023-015
Exhibit 6
Page 33 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Energy Consequences
of Allowing
Negative Energy Consequences of
Allowing
enclosed by sight-
obscuring fencing.
who could access such service
without having to travel to
Redmond or Bend.
Kennel or a Veterinary
clinic.
The positive energy
consequences of such a use
would be the reduced energy
consumption for local
businesses and property owners
who could access such services
without having to travel to
Redmond or Bend.
There are limited negative energy
consequences associated with such a
use on site.
Additionally, commercial dog
boarding kennels on the subject
property are already permissible via
the existing EFU zoning and the
property has been zoned EFU since
the 1992 adoption of the LM
regulations. Allowance of such uses
was contemplated in the original
ESEE and does not warrant a new
ESEE here as it is a not a new
conflicting use.
Lumber manufacturing
and wood processing
except pulp and paper
manufacturing.
Such a use could offer a shorter
trip for hauling lumber from
areas in central Oregon versus to
mills in Redmond or La Pine
thereby potentially reducing
energy consumption.
There are limited negative energy
consequences associated with such a
use on site.
Class I and II road or
street project subject
to approval as part of a
land partition,
subdivision or subject
to the standards and
criteria established by
DCC 18.116.230.
There are limited positive energy
consequences from such a use
on site.
There are limited negative energy
consequences associated with such a
use on site.
Class III road or street
project.
There are limited positive energy
consequences from such a use
on site other than a potential
minimal reduction in travel time
for area residents and
businesses that may benefit
from such a project.
There are limited negative energy
consequences associated with such a
use on site.
34
Exhibit I to Ord. 2023-015
Exhibit 6
Page 34 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Energy Consequences
of Allowing
Negative Energy Consequences of
Allowing
Operation,
maintenance, and
piping of existing
irrigation systems
operated by an
Irrigation District
except as provided in
DCC 18.120.050.
There is an existing Central
Oregon Irrigation District canal
that splits the property.
Continued operation,
maintenance and potential
piping of the canal provide
positive energy consequences by
assuring continued delivery of
water to agricultural uses
primarily through gravity
delivery.
There are no negative energy
consequences of allowing such uses
on site.
Concrete or ready -mix
plant.
Such a use on the subject
property could benefit nearby
residents and agricultural uses
by providing needed services in
close proximity. Ready mix
plants in Bend and Redmond are
all at least 10 miles from this
location. Projects in the rural
residential areas in this vicinity
would benefit from the shorter
trip and reduced energy
consumption.
There are no negative energy
consequences of allowing such uses
on site.
Petroleum products
storage and
distribution.
Such uses typically do not
contain a retail component so
would not offer a closer fueling
option for local businesses and
property owners. There are
limited positive energy
consequences of such a use at
the site.
There are no negative energy
consequences of allowing such uses
on site.
Storage, crushing and
processing of minerals,
including the
processing of aggregate
into asphaltic concrete
or Portland Cement
Concrete.
The positive energy
consequences of such a use
would be the reduced travel
distance and reduced energy
consumption for local
businesses and property owners
who could access such goods
without having to travel to
Redmond or Bend.
There are no known negative energy
consequences of allowing such uses
on site.
35
Exhibit I to Ord. 2023-015
Exhibit 6
Page 35 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Energy Consequences
of Allowing
Negative Energy Consequences of
Allowing
Commercial feedlot,
stockyard, sales yard,
slaughterhouse and
rendering plant.
The positive energy
consequences of such a use
would be the reduced energy
consumption for local livestock
operations that could benefit
from such a facility at this
location.
There are no known negative energy
consequences of allowing such uses
on site.
Railroad trackage and
related facilities.
The Burlington Northern Santa
Fe railroad is roughly 1700 feet
east of the property with
Highway 97 and the COID canal
between. Although such facilities
are allowed technically in the RI
Zone, it is highly unlikely the
subject property would ever
actually be utilized for railroad
trackage and related facilities.
Accordingly, the energy
consequences of allowing such
uses are minimal in this case.
The Burlington Northern Santa Fe
railroad is roughly 1700 feet east of
the property with Highway 97 and the
COID canal between. Although such
facilities are allowed technically in the
RI Zone, it is highly unlikely the
subject property would ever actually
be utilized for railroad trackage and
related facilities. Accordingly, the
energy consequences of allowing
such uses are minimal in this case.
Pulp and paper
manufacturing.
Such uses typically do not
contain a retail component local
businesses and property owners
could access. There are limited
positive energy consequences of
such a use at the site.
Pulp and paper manufacturing could
require substantial energy
consumption.
Any use permitted by
DCC 18.100.010, which
is expected to exceed
the following
standards:
1. Lot coverage in
excess of 70
percent.
2. Generation of
any odor, dust,
fumes, glare,
flashing lights
or noise that is
perceptible
without
instruments 500
feet from the
There are no identified positive
energy consequences from such
a use on site.
There are no known negative energy
consequences from such a use on
site.
36
Exhibit I to Ord. 2023-015
Exhibit 6
Page 36 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Energy Consequences
of Allowing
Negative Energy Consequences of
Allowing
property line of
the subject use.
Manufacture, repair or
storage of articles
manufactured from
bone, cellophane,
cloth, cork, feathers,
felt, fiber, glass, stone,
paper, plastic, precious
or semiprecious stones
or metal, wax, wire,
wood, rubber, yarn or
similar materials,
provided such uses do
not create a
disturbance because of
odor, noise, dust,
smoke, gas, traffic or
other factors.
The positive energy
consequences of such a use
would be the reduced energy
consumption for local
businesses and property owners
who would use such services or
provide raw materials for
manufacturing purposes.
There are no known negative energy
consequences from such a use on
site.
Processing, packaging
and storage of food and
beverages including
those requiring
distillation and
fermentation.
The positive energy
consequences of such a use
would be the reduced energy
consumption for local
businesses and property owners
who would use such services.
There are no known negative energy
consequences from such a use on
site.
Public Land Disposal
Site Transfer Station,
including recycling and
other related activities.
The positive energy
consequences of such a use
would be the reduced energy
consumption for local
businesses and property owners
who would use such services.
There are no known negative energy
consequences from such a use on
site.
Mini -storage facility.
The positive energy
consequences of such a use
would be the reduced energy
consumption for local
businesses and property owners
who would use such services.
There are no known negative energy
consequences from such a use on
site.
37
Exhibit I to Ord. 2023-015
Exhibit 6
Page 37 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Conflicting Use
Positive Energy Consequences
of Allowing
Negative Energy Consequences of
Allowing
Automotive wrecking
yard totally enclosed
by a sight -obscuring
fence.
The positive energy
consequences of such a use
would be the reduced energy
consumption for local
businesses and property owners
who would use such services.
There are no known negative energy
consequences from such a use on
site.
Wireless
telecommunications
facilities, except those
facilities meeting the
requirements of DCC
18.116.250(A) or (B).
There are no known energy
benefits from such a use at the
site.
There are no known negative energy
consequences from such a use on
site.
Utility facility.
There could be positive energy
consequences of such a use on
site if developed for photovoltaic
energy production or an energy
substation.
There are no known negative energy
consequences from such a use on
site.
Additionally, commercial utility
facilities on the subject property are
already conditionally permissible via
the existing EFU zoning and the
property has been zoned EFU since
the 1992 adoption of the LM
regulations. Allowance of such uses
was contemplated in the original
ESEE and does not warrant a new
ESEE here as it is a not a new
conflicting use.
Manufacturing,
storage, sales, rental,
repair and servicing of
equipment and
materials associated
with farm and forest
uses, logging, road
maintenance, mineral
extraction,
construction or similar
rural activities.
The positive energy
consequences of such a use
would be the reduced energy
consumption for local
businesses and property owners
who would use such services.
There are no known negative energy
consequences from such a use on
site.
38
Exhibit I to Ord. 2023-015
Exhibit 6
Page 38 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Positive Energy Consequences
of Allowing
Negative Energy Consequences of
Allowing
Electrical substations.
There would be positive energy
consequences of such a use at
this site as it would provide
additional energy capacity for
the community.
There are no known negative energy
consequences from such a use on
site.
Additionally, commercial utility
facilities on the subject property are
already conditionally permissible via
the existing EFU zoning and the
property has been zoned EFU since
the 1992 adoption of the LM
regulations. Allowance of such uses
was contemplated in the original
ESEE and does not warrant a new
ESEE here as it is a not a new
conflicting use.
Marijuana retailing,
subject to the
provisions of DCC
18.116.330.
The positive energy
consequences of such a use
would be the reduced energy
consumption for local
businesses and property owners
who would use such services
versus having to travel to Bend.
There are no known negative energy
consequences from such a use on
site.
Psilocybin testing
laboratories.
There are no known positive
energy consequences from such
a use on site.
There are no known negative energy
consequences from such a use on
site.
39
Exhibit I to Ord. 2023-015
Exhibit 6
Page 39 of 40
Skidmore Consulting, LLC
Land Use Planning & Development Services
Allowing Conflicting Uses, Prohibiting Conflicting Uses, or Limiting Conflicting Uses:
The ESEE consequences of the permitted and conditional uses in DCC 18.100 have been
analyzed and are provided for consideration by the Board of County Commissioners in
deciding this land use application. This exhaustive list provides sufficient detail to consider
the economic, social, environmental and energy factors to balance in making this decision
regarding the proposal and the Landscape Management Roads Goal 5 resource.
40
Exhibit I to Ord. 2023-015
Exhibit 6
Page 40 of 40
BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
FINDINGS OF FACT AND CONCLUSIONS OF LAW ON REMAND
FILE NUMBERS: 247-21-000881-PA, 882-ZC (247-23-000398-A)
APPLICANT/ LBNW LLC
OWNER: 65315 Hwy 97
Bend, OR 97701
APPLICANT'S D. Adam Smith
ATTORNEY: J. Kenneth Katzaroff
Schwabe, Williamson & Wyatt, P.C.
360 SW Bond St, Suite #500
Bend, OR 97702
STAFF PLANNER: Tarik Rawlings, Senior Transportation Planner
Anthony Raguine, Principal Planner
REQUEST:
PROPOSAL:
The Applicant requests proceedings on remand from Central Oregon
Landwatch v. Deschutes County, _ Or LUBA _ (LUBA No 2023-008, April
24, 2023) following the Board of County Commissioner's approval of
original application file numbers 247-21-0000881-PA/882-ZC, and
original Ordinance No 2022-011.
Comprehensive Plan Amendment to change the designation of the
properties from Agriculture (AG) to Rural Industrial (RI) and a
corresponding zoning map amendment to change the zoning from
Exclusive Farm Use - Tumalo/Redmond/Bend Subzone (EFU-TRB) to
Rural Industrial Zone (RI).
LOCATION: Taxlot 305 (3.00 acres) - 65301 Hwy 97, Bend, OR 97701
Taxlot 301 (15.06 acres) - 65305 Hwy 97, Bend, OR 97701
Taxlot 500 (1.06 acres) - 65315 Hwy 97, Bend, OR 97701
I. FINDINGS OF FACT:
A. Procedural History: The Deschutes County Board of County Commissioners
("Board") adopted Ordinance No 2022-011, approving the requested Comprehensive
Plan Amendment and Zone Change of Taxlots 305, 301, and 500 (the "Properties") to
Rural Industrial, with the second and final ordinance reading occurring on
December 14, 2022. Central Oregon Landwatch ("COLW") appealed Ordinance No
2022-011 to the Land Use Board of Appeals ("LUBA"). LUBA remanded the decision
on April 24, 2023, denying all of COLW's arguments except for one. See Central
Exhibit G to Ordinance 2023-015 1
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
Oregon Landwatch v. Deschutes County, _ Or LUBA _ (LUBA No 2023-008, April 24,
2023) (the "LUBA Decision"). The Applicant (LBNW LLC) requested in writing on May
17, 2023, that the Board proceed with remand proceedings pursuant to Oregon
Revised Statutes ("ORS") 215.435 and Deschutes County Code ("DCC") Chapter 22.34.
The Board limited the remand proceedings to the issue remanded by LUBA and
permitted new evidence and testimony to address only the remanded issue.
Following public notice, the Board conducted a remand public hearing on June 28,
2023. Prior to the hearing, the Applicant submitted written argument and evidence,
including an initial draft economic, social, environmental, and energy analysis
("Initial ESEE Analysis") as required by the LUBA Decision. During the hearing, both
the Applicant and COLW provided oral testimony. At the conclusion of all oral
testimony on June 28, 2023, the Board closed the hearing but left the record open
until July 5, 2023, for additional written evidence, a rebuttal period ending July 129,
2023, and Applicant's final argument required to be submitted prior to July 1926,
2023.
Both parties submitted materials for the July 5, 2023, written evidence period.
Among other arguments, COLW's July 5 submittal criticized that the Initial ESEE
Analysis did not comply with applicable state rules. Although disagreeing with the
necessity of revising the Initial ESEE Analysis, the Applicant nevertheless requested a
one -week extension to facilitate the preparation of an updated analysis (the
"Updated ESEE Analysis"). (The Board notes that even when disagreeing with COLW's
arguments, the Applicant throughout these proceedings consistently consented to
address all issues raised by COLW resulting in the Updated ESEE Analysis, additional
proposed findings, etc.) The Board granted the Applicant's request for more time
and issued an order (Order No. 2023-031) extending the rebuttal period until July 19,
2023, and correspondingly extending Applicant's final argument deadline to July 26,
2023. COLW did not submit rebuttal testimony and instead elected to end its
participation in these proceedings following the July 5 open record deadline. The
Applicant, however, submitted additional argument and evidence in addition to the
Updated ESEE Analysis at the conclusion of the rebuttal period. The Applicant then
submitted its final legal argument on July 26, 2023.
The Board deliberated on August 16, 2023, and voted 2-1 to again approve the
Applicant's land use application. Consistent with the Board's August 16th motion,
County staff prepared the required Ordinance packet, which was approved by the
Board with first reading occurring on August 30, 2023, and second reading occurring
on September 13, 2023.
B. LUBA Decision and Guidance: The LUBA Decision provides the basis for the
remand. The relevant passage from that decision appears on pages 36-37,
reproduced in part as follows:
Exhibit G to Ordinance 2023-015 2
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
"We agree with [COLW] that the [Board] misconstrued the applicable law. * *
* The questions presented here are whether the new RI zoning allows uses
on the subject propert[ies] 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 [Landscape Management Combining Zone] provided the
impacted scenic resources sufficient protection does not change the
requirements to apply Goal 5 to the PAPA for the subject property. * * *
"* * * the 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)."
As understood by this Board, the purpose of LUBA's remand was to provide this
Board the opportunity - as required by applicable state rules - to consider both the
consequences, if any, stemming from the subject land use application as it relates to
the Goal 5 protected scenic views and perform an ESEE analysis to weigh those
consequences before again deciding to approve or deny that application.
C. Incorporated findings. To the extent not in conflict with these findings or the LUBA
Decision, the Board again adopts and incorporates herein the original findings
supporting the County's previous Ordinance 2022-011. Those incorporated findings
specifically include the Board's original findings, "Exhibit 'F' - Ordinance 2022-011,"
included herein as Exhibit "F," and the Hearings Officer's original decision and
recommendation, "Exhibit 'G' to Ord. 2022-011," included herein as Exhibit"H."
II. CONCLUSIONS OF LAW:
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:
***
(b) The PAPA allows new uses that could be conflicting uses with a
particular significant Goal 5 resource site on an acknowledged resource
list;
FINDING: The Board notes that the initial issue in almost every remand proceeding
is the scope of the remand. This case is no different, requiring the Board to first
Exhibit G to Ordinance 2023-015 3
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
resolve several different arguments debated by the parties relating to the scope of
the remand.
The Board begins its analysis by acknowledging that the LUBA Decision specifically
cited Oregon Administrative Rule ("OAR") 660-023-0250(3) and further determined
that the at -issue post -acknowledgment plan amendment ("PAPA") application will
allow new uses which could conflict with Deschutes County's Goal 5 scenic view
resources. The LUBA Decision therefore requires the Board to "apply Goal 5,"
meaning that the Board must follow the Procedures and Requirements for Complying
with Goal 5 as set forth in OAR Chapter 660, Division 23, as part of again deciding to
approve or deny the subject PAPA ("the Application").
COLW's July 5 record submittal argued that both County staff and the Applicant
"inaccurately described LUBA's remand order as 'narrow."' COLW further asserted
"OAR 660-023-0250(3) requires a broad inquiry into the impacts on inventoried Goal
5 resources of a decision to allow, limit, or prohibit various conflicting uses." To the
extent COLW's "broad inquiry" argument was meant to suggest that the County
needs to do something beyond an ESEE Analysis or that the ESEE Analysis should
consider issues beyond the enumerated economic, social, environmental, and
energy consequences, the Board disagrees. Rather than an ill-defined "broad
inquiry," the Board unanimously finds that applicable rules specifically set forth in
OAR Chapter 660, Division 23, shall guide these remand proceedings.
Next, the Board must resolve a related debate between the parties concerning
which provisions within OAR Chapter 660, Division 23, are applicable to these
remand proceedings. The Applicant's initial June 23 record submittal proposed
findings responding only to OAR 660-023-0040 governing the ESEE Decision Process.
In response, COLW's July 5 record submittal cited OAR 660-023-0230(2) and argued
that "[f]or scenic view resources, 'the requirements of OAR 660- 023-0030 through
660-023-0050 shall apply." COLW further asserted that "LUBA's remand order
requires the County to apply all three of these administrative rules to the subject
PAPA."
The Board notes that COLW quoted only a portion of OAR 660-023-0230(2), which
appears in full as follows (emphasis added):
"Local governments are not required to amend acknowledged
comprehensive plans in order to identify scenic views and sites. If local
governments decide to amend acknowledged plans in order to provide or
amend inventories of scenic resources, the requirements of OAR 660-023-
0030 through 660-023-0050 shall apply."
Exhibit G to Ordinance 2023-015 4
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
Given the underlined qualifier in the above -quoted rule, the Board questions
COLW's insistence that any PAPA involving a local government's scenic view
resources must address all three cited provisions: OAR 660-023-0030, OAR 660-023-
0040, and OAR 660-023-0050. Instead, the Board suggests that complying with all
three aforementioned rules is required only when a PAPA specifically seeks to
"amend inventories of scenic resources." When it comes to OAR 660-023-0030
governing the Goal 5 Inventory Process, for example, the rule clearly does not apply
in those circumstances when a local government does not undertake updating or
otherwise redoing a previously completed Goal 5 inventory.
Despite disagreeing with COLW's argument, the Applicant's July 26 final legal
argument nevertheless addressed COLW's concern and recommended that the
Board adopt findings responding to all three state rule provisions. If nothing else,
the Applicant's suggested findings respond to all three provisions to further explain
how and why those provisions (or subparts therein) do not apply to the Board's
decision on remand. The Board agrees with the Applicant's recommendation, and
includes findings below addressing OAR 660-023-0030, OAR 660-023-0040, and OAR
660-023-0050.
OAR 660-023-0030, Inventory Process
(1) Inventories provide the information necessary to locate and
evaluate resources and develop programs to protect such resources.
The purpose of the inventory process is to compile or update a list of
significant Goal 5 resources in a jurisdiction. This rule divides the
inventory process into four steps. However, all four steps are not
necessarily applicable, depending on the type of Goal 5 resource and
the scope of a particular PAPA or periodic review work task. For
example, when proceeding under a quasi-judicial PAPA for a particular
site, the initial inventory step in section (2) of this rule is not applicable
in that a local government may rely on information submitted by
applicants and other participants in the local process. The inventory
process may be followed for a single site, for sites in a particular
geographical area, or for the entire jurisdiction or urban growth
boundary (UGB), and a single inventory process may be followed for
multiple resource categories that are being considered simultaneously.
The standard Goal 5 inventory process consists of the following steps,
which are set out in detail in sections (2) through (5) of this rule and
further explained in sections (6) and (7) of this rule:
(a) Collect information about Goal 5 resource sites;
(b) Determine the adequacy of the information;
(c) Determine the significance of resource sites; and
(d) Adopt a list of significant resource sites.
Exhibit G to Ordinance 2023-015 5
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
FINDING: As stated within OAR 660-023-0030 (1), this rule's purpose is "to compile
or update a list of significant Goal 5 resources in a jurisdiction." Importantly here,
the inventory process has already been completed. Accordingly, the Board finds that
Section 5.5 of the Deschutes County Comprehensive Plan ("DCCP") entitled Goal 5
Inventory: Open Spaces, Scenic Views and Sites identifies an area extending 1/4-mile on
either side of the centerline of certain roadways, including Highway 97 between the
Bend and Redmond Urban Growth Boundaries ("UGBs"), as a Goal 5 scenic view
resource.
As shown on Exhibit B attached to the Applicant's Initial ESEE Analysis, the entirety
of Tax Lots 1612230000500 and 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 % mile
corridor and thereby is currently also subject to the County's LM Zone. Notably, the
Applicant does not seek to remove the subject Properties from the County's LM
Zone, nor does the Applicant seek to otherwise amend or modify DCCP Section 5.5
or the LM Zone's governing provisions contained in DCC Chapter 18.84. The subject
PAPA only seeks to change the base zone from EFU to RI on the Properties. In such a
case, the Board finds that OAR 660-023-0030 specifically provides as follows: "when
proceeding under a quasi-judicial PAPA for a particular site, the initial inventory step
in section (2) of this rule is not applicable in that a local government may rely on
information submitted by applicants and other participants in the local process."
The Board further finds that nothing in the LUBA Decision suggests or requires the
County to amend or modify its long-standing Goal 5 scenic view inventories during
these remand proceedings. The Board reiterates the Applicant's comments in its July
26, 2023, record submittal explaining that the LUBA Decision "relied on the County's
existing Goal 5 program to conclude that uses allowed under the RI Zone could be
conflicting uses." If LUBA's remand were to be interpreted as an invitation to the
County to re -do its scenic view inventory, then the County could conceivably
conclude that there are no longer any scenic view resources on the subject
Properties that warrant protection under Goal 5. And, if there are no such scenic
view resources, then clearly the new uses that would be allowed under the County's
RI zone would never "conflict with inventoried Goal 5 resources" because there
would be no such identified Goal 5 resources in the first place. Accordingly, the
Board's only option if electing to update its scenic view inventory for the subject
Properties would be to again conclude that there are significant resources deserving
Goal 5 protection as any other decision would be in direct conflict with the LUBA
Decision. The Board does not believe that LUBA intended the County to waste
resources going through such a perfunctory inventory process.
Rather than inviting the County to begin anew by conducting an inventory pursuant
to OAR 660-023-0050, the Board finds that the LUBA Decision relies on the County's
Exhibit G to Ordinance 2023-015 6
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
existing Goal 5 scenic view inventory codified in the DCCP, thereby directing the
County to do the same in these remand proceedings. Specifically, the LUBA Decision
states that the subject PAPA "allows new uses that could conflict with inventoried
Goal 5 resources" (emphasis added). The LUBA Decision does not direct the County
to conduct a new inventory of Goal 5 scenic view resources and then decide if the
uses allowed under the RI zone could conflict with those newly identified resources.
Stated simply, the Board understands the LUBA Decision as requiring the County to
complete the ESEE Decision Process set forth in OAR 660-023-0040 (and then
potentially address OAR 660-023-0050) while relying on the County's existing Goal 5
scenic view inventory.'
Accordingly, the majority of the Board finds that the inventory process required by
OAR 660-023-0030 has already been completed; the results of which are set forth in
DCCP Section 5.5. That inventory includes the entirety of two of the subject
Properties and the majority of the third. The Board's subsequent findings issued in
this decision rely on that existing inventory such that OAR 660-023-0030(2)
specifically is not applicable.
(2) Collect information about Goal 5 resource sites: The inventory
process begins with the collection of existing and available information,
including inventories, surveys, and other applicable data about
potential Goal 5 resource sites. If a PAPA or periodic review work task
pertains to certain specified sites, the local government is not required
to collect information regarding other resource sites in the jurisdiction.
When collecting information about potential Goal 5 sites, local
governments shall, at a minimum:
(a) Notify state and federal resource management agencies and
request current resource information; and
(b) Consider other information submitted in the local process.
FINDING: As discussed in the preceding finding, the Board finds that OAR 660-023-
0030(2) does not apply.
(3) Determine the adequacy of the information: In order to conduct the
Goal 5 process, information about each potential site must be
adequate. A local government may determine that the information
about a site is inadequate to complete the Goal 5 process based on the
criteria in this section. This determination shall be clearly indicated in
the record of proceedings. The issue of adequacy may be raised by the
department or objectors, but final determination is made by the
1 The Board notes that the County's program to achieve the Goal related to its Goal 5 scenic view
inventory is the adopted LM Zone.
Exhibit G to Ordinance 2023-015 7
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
commission or the Land Use Board of Appeals, as provided by law.
When local governments determine that information about a site is
inadequate, they shall not proceed with the Goal 5 process for such
sites unless adequate information is obtained, and they shall not
regulate land uses in order to protect such sites. The information about
a particular Goal 5 resource site shall be deemed adequate if it provides
the location, quality and quantity of the resource, as follows:
(a) Information about location shall include a description or map
of the resource area for each site. The information must be
sufficient to determine whether a resource exists on a particular
site. However, a precise location of the resource for a particular
site, such as would be required for building permits, is not
necessary at this stage in the process.
(b) Information on quality shall indicate a resource site's value
relative to other known examples of the same resource. While a
regional comparison is recommended, a comparison with
resource sites within the jurisdiction itself is sufficient unless
there are no other local examples of the resource. Local
governments shall consider any determinations about resource
quality provided in available state or federal inventories.
(c) Information on quantity shall include an estimate of the
relative abundance or scarcity of the resource.
FINDING: As discussed above, the Board relies on the existing inventory of Goal 5
scenic view resources contained in DCCP Section 5.5. The previous Boards of County
Commissioners that initially adopted the County's Goal 5 program and then
subsequently re -adopted that same program several times throughout the past
decades (most recently as part of the County's current 2020 DCCP update), deemed
the information for the inventoried properties adequate. As the current Board is not
seeking to amend that inventory, the Board does not question those previous
determinations and thereby finds that information about the Goal 5 scenic view
resources contained in the DCCP and elsewhere in the record for these proceedings
is adequate.
(4) Determine the significance of resource sites: For sites where
information is adequate, local governments shall determine whether
the site is significant. This determination shall be adequate if based on
the criteria in subsections (a) through (c) of this section, unless
challenged by the department, objectors, or the commission based
upon contradictory information. The determination of significance shall
be based on:
(a) The quality, quantity, and location information;
Exhibit G to Ordinance 2023-015 8
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
(b) Supplemental or superseding significance criteria set out in
OAR 660-023- 0090 through 660-023-0230; and
(c) Any additional criteria adopted by the local government,
provided these criteria do not conflict with the requirements of
OAR 660-023-0090 through 660-023-0230.
FINDING: The Board relies on the existing inventory of Goal 5 scenic view resources
contained in DCCP Section 5.5. Accordingly, the Board does not seek to amend or alter
previous County Commissioners' determinations that the Goal 5 scenic view resources on
the subject Properties are significant.
As discussed above, if the County were to interpret the LUBA Decision as an invitation to
redo the inventory process as part of these proceedings, the resulting decision under this
subpart conceivably could be that there are no longer any significant Goal 5 scenic view
resources on the subject Properties. The Board does discuss in later findings responding to
OAR 660-023-0040 that that Goal 5 scenic view resources on the subject Properties are
diminished when compared to other similarly situated properties within the LM Zone.
However, the Board's finding recognizing those diminished scenic view resources in the
vicinity of the subject Properties should not be interpreted to mean that the Board finds
that there are no longer any Goal 5 scenic view resources, nor does it mean that the Board
is challenging the veracity of the County's past Goal 5 scenic view decisions.
(5) Adopt a list of significant resource sites: When a local government
determines that a particular resource site is significant, the local
government shall include the site on a list of significant Goal 5
resources adopted as a part of the comprehensive plan or as a land use
regulation. Local governments shall complete the Goal 5 process for all
sites included on the resource list except as provided in OAR 660-023-
0200(2)(c) for historic resources, and OAR 660-023-0220(3) for open space
acquisition areas.
FINDING: The Board relies on the existing inventory of Goal 5 scenic view resources
contained in DCCP Section 5.5, which specifically contains the list of significant resource
sites.
(6) Local governments may determine that a particular resource site is
not significant, provided they maintain a record of that determination.
Local governments shall not proceed with the Goal 5 process for such
sites and shall not regulate land uses in order to protect such sites
under Goal 5.
Exhibit G to Ordinance 2023-015 9
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
FINDING: The Board relies on the existing inventory of Goal 5 scenic view resources
contained in DCCP Section 5.5. Accordingly, this decision does not determine that any
particular resource site is not significant. As discussed in response to OAR 660-023-0030(4)
above, the Board specifically disavows any suggestion that the findings below discussing
the diminished quality of the Goal 5 scenic view resources on the subject Properties
suggest that there are no significant Goal 5 scenic view resources on the subject Properties.
(7) Local governments may adopt limited interim protection measures
for those sites that are determined to be significant, provided:
(a) The measures are determined to be necessary because
existing development regulations are inadequate to prevent
irrevocable harm to the resources on the site during the time
necessary to complete the ESEE process and adopt a permanent
program to achieve Goal 5; and
(b) The measures shall remain effective only for 120 days from
the date they are adopted, or until adoption of a program to
achieve Goal 5, whichever occurs first.
FINDING: The Board relies on the existing inventory of Goal 5 scenic view resources
contained in DCCP Section 5.5. Accordingly, the Board does not seek to adopt interim
protection measures. This subsection (7) is inapplicable.
OAR 660-023-0040, ESEE Decision Process
(1) Local governments shall develop a program to achieve Goal 5 for all
significant resource sites based on an analysis of the economic, social,
environmental, and energy (ESEE) consequences that could result from
a decision to allow, limit, or prohibit a conflicting use. This rule
describes four steps to be followed in conducting an ESEE analysis, as
set out in detail in sections (2) through (5) of this rule. Local
governments are not required to follow these steps sequentially, and
some steps anticipate a return to a previous step. However, findings
shall demonstrate that requirements under each of the steps have
been met, regardless of the sequence followed by the local government.
The ESEE analysis need not be lengthy or complex, but should enable
reviewers to gain a clear understanding of the conflicts and the
consequences to be expected. The steps in the standard ESEE process
are as follows:
(a) Identify conflicting uses;
(b) Determine the impact area;
(c) Analyze the ESEE consequences; and
(d) Develop a program to achieve Goal 5.
Exhibit G to Ordinance 2023-015 10
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
FINDING: Consistent with the above findings, the Board finds that the LUBA Decision
already "identified conflicting uses" in this case, i.e., the first step as set forth in OAR 660-
023-0040(1)(a) and further identified in OAR 660-023-0040(2). The Board unanimously finds
that those "identified conflicting uses" are those uses allowed outright or conditionally
under the RI zone on the subject Properties that would not have otherwise been allowed
under the current EFU zoning. Accordingly, these findings focus on the second, third, and
fourth steps in the ESEE Decision Process as further detailed by OAR 660-023-0040(3)
through (5).
(2) Identify conflicting uses. Local governments shall identify conflicting
uses that exist, or could occur, with regard to significant Goal 5
resource sites.***
FINDING: As noted above, the LUBA Decision already identified the conflicting uses in this
case. The Board accepts and agrees with the identification of the conflicting uses as
identified in the LUBA Decision, as those uses allowed outright or conditionally under the RI
zone on the Subject properties that would not have otherwise been allowed under the
current EFU zoning.
(3) Determine the impact area. Local governments shall determine an
impact area for each significant resource site. The impact area shall be
drawn to include only the area in which allowed uses could adversely
affect the identified resource. The impact area defines the geographic
limits within which to conduct an ESEE analysis for the identified
significant resource site.
FINDING: As noted above, the subject PAPA concerns three Properties identified as Tax
Lots 1612230000301, 1612230000305, and 1612230000500. The entirety of Tax Lots
1612230000500 and 1612230000305 fall within the existing LM Zone (i.e., the'/4-mile
corridor extending from the centerline of Highway 97), and the majority of Tax Lot
161223000301 also falls within the LM Zone.
Initially, the Applicant argued that the impact area in this case should be constrained to the
three subject Properties. The Board presumes that the Applicant initially suggested such a
limited impact area because of the second sentence in OAR 660-023-0040(3) stating that
that the impact area should "include only the area in which allowed uses could adversely
affect the identified resources." This case concerns only the new uses allowed on the three
subject Properties under the RI zone, thereby suggesting that the impact area is only those
three subject Properties.
COLW's July 5 record submittal argued that the Applicant's identified impact area was too
small of a geographical area, with COLW further noting that that the Applicant's proposed
ESEE analysis described "uses outside of this [identified] impact area." More specifically,
Exhibit G to Ordinance 2023-015 11
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
COLW argued that the Applicant's ESEE Analysis repeatedly discussed "development further
on the hillside west of the subject Properties [which] already significantly diminishes the
scenic resources viewed from Highway 97 adjacent to the subject properties." Last, COLW
argued that "minimizing the impacts of the conflicting uses on the subject property's Goal 5
scenic view resources based on conditions outside of the identified impact area is also
contrary to OAR 660-023-0040(3), which requires that'[t]he impact area defines the
geographic limits within which to conduct an ESEE analysis for the identified significant
resource site."'
As understood by the Board, this "impact area" disagreement between the Applicant and
COLW stems from the Applicant focusing on the second sentence set forth in OAR 660-023-
0040(3) and COLW focusing on the third sentence. The Board further notes that it is hard to
reconcile what appears to be contradictory direction provided by those two sentences.
Nevertheless, the Board does not need to resolve that issue presently because the
Applicant's July 19 rebuttal submittal and July 26 final legal argument both proposed an
expanded impact area to address COLW's concerns. Consistent with the Applicant's
aforementioned submittals, the Board unanimously finds that the appropriate impact area
in this case includes "those properties to the west of Highway 97 and within the existing LM
Zone (i.e., within 1/4-mile of the centerline of Highway 97) between the 61 st Street
intersection to the north and the Tumalo Road off ramp to the south."
The Board favors this expanded impact area for three reasons. First, the expanded impact
area corresponds directly to evidence in the record submitted in support of the Expanded
ESEE Analysis. For example, the Applicant's Exhibits 3 and 4 are a video and pictures
documenting the scenic views looking west from an automobile traveling both north and
south on Highway 97 between the 61 st Street intersection and the Tumalo Road off ramp.
Second, the expanded impact area is supported by case law, specifically LandWatch Lane
County v. Lane County, _Or LUBA_ (LUBA No 2019-048, August 9, 2019). LandWatch Lane
County similarly considered a quasi-judicial PAPA for a single property, and LUBA therein
suggested that the impact area should include at least adjacent land with the same or
similar Goal 5 protections.
Third, the expanded impact area addresses COLW's critique that the Initial ESEE Analysis
documents impacts caused by "development further on the hillside west of the subject
Properties * * *." Examining Applicant's Exhibits 2, 3, 4, and 5, it is clear that most of those
developments built on the hillside and in plain view of Highway 97 are within the expanded
impacted area - i.e., within the LM Zone west of Highway 97 between the 61 st Street
intersection and Tumalo Road.
Last, the Applicant's July 26 final legal argument raises two final issues related to the impact
area that deserve further comment from this Board. First, the Applicant argued that the
ESEE process is intended to be iterative, and it was thereby appropriate to expand the
Exhibit G to Ordinance 2023-015 12
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
impact area mid -way through the remand proceedings. To support that argument, the
Applicant quoted language in OAR 660-023-004(1) suggesting that "[I]ocal governments are
not required to follow [the ESEE Decision Process] steps sequentially, and some steps
anticipate a return to a previous step." The majority of the Board (agrees with the
Applicant's argument and finds that it was appropriate for the Applicant to "return to the
previous [impact area] step" after submitting the Initial ESEE Analysis because the Applicant
was responding to COLW's comments concerning that Initial ESEE Analysis. The Board
further notes that the expanded impact area was submitted concurrently with the Updated
ESEE Analysis.
More directly related to COLW's criticisms of the Initial ESEE Analysis, the Applicant also
acknowledged in its July 26 final legal argument that the Updated ESEE Analysis includes
'"ESEE consequences to properties outside of the formal impact area." The Applicant
argued that including ESEE consequences outside of the impact area was appropriate
because of the differing definitions of the terms "ESEE Consequence" and "Impact Area"
contained in OAR 660-023-0010(2) and (3), respectively. As understood by the Board, the
Applicant distinguished the two aforementioned terms specifically because the ESEE
Consequence definition does not reference the Impact Area definition, nor does the ESEE
Consequence definition include any language suggesting a geographical limit.
The Board agrees with the Applicant's argument, and unanimously finds that it is
appropriate for the Updated ESEE Analysis to document ESEE Consequences that extend
beyond the impact area to the extent necessary to "enable reviewers to gain a clear
understanding of the conflicts and the consequences to be expected." See OAR 660-023-
0040(1). To the extent the Board's understanding of OAR 660-023-0010(2) and (3) is
incorrect, the Board further finds that those ESEE Consequences described in the Updated
ESEE Analysis extending beyond the impact area were not dispositive to the Board's
subsequent OAR 660-023-0040(4) and (5) findings. Accordingly, the Board notes that it
would have reached similar conclusions and issued similar findings responding to OAR 660-
023-0040(4) and (5) even if all ESEE Consequences addressing properties outside of the
impact area were struck from the Update ESEE Analysis.
(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
Exhibit G to Ordinance 2023-015 13
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
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.
FINDING: The Applicant's Initial ESEE Analysis for the Board's consideration was prepared
by Skidmore Consulting, LLC: Land Use Planning & Development Services. (See Applicant
Exhibit 1). COLW's July 5 record submittal criticized that the Initial ESEE Analysis went too
far in grouping "similar conflicting uses," thereby violating OAR 660-023-0040(4). In
response, the Applicant submitted the Updated ESEE Analysis, again prepared by Skidmore
Consulting, LLC: Land Use Planning & Development Services. That Updated ESEE Analysis
analyzes all of the different uses allowed by the RI Zone in a more comprehensive manner.
(See Applicant's Exhibit 6). Accordingly, the Board need not address COLW's arguments
regarding the Initial ESEE Analysis. Instead, the majority of the Board finds that the
Updated ESEE Analysis does not inappropriately group "similar conflicting uses" contrary to
OAR 660-023-0040(4) because the numerous conflicting uses are all analyzed in the
Updated ESEE Analysis.
The Board further notes that although separately analyzed in the Updated ESEE Analysis,
many of the described consequences for each of the conflicting uses are still similar. But
those similarly described consequences do not suggest that the Updated ESEE Analysis is
incorrect or otherwise faulty. Instead, those similarly described consequences reflect the
specific Goal 5 resource at issue. On that point, the Board notes that the County's original
ESEE analysis contained in Ordinance 92-052 summarily described the Goal 5 resource at
issue as the "scenic or natural appearance of the landscape as seen from the road or
alteration of existing landscape by removal of vegetative cover." Viewed through that lens,
the similarly described consequences are understandable for even differing conflicting
uses because many of those differing uses allowed under the RI zone may require, for
example, the removal of the same vegetative cover or otherwise will similarly detract from
the natural appearance of the landscape as seen from an automobile traveling on Highway
97.
As understood by the Board, every ESEE analysis is intended to be context specific, and the
Board is "afforded fairly broad discretion in considering potential impacts from allowing or
prohibiting a particular use * **." See Central Oregon LandWatch v. Deschutes County, Or
LUBA _ (LUBA No 202-019, March 22, 2021) (internal citations omitted). Pursuant to OAR
660-023-0040(1), the Board again notes that an "ESEE analysis need not be lengthy or
complex but should enable the reviewers to gain a clear understanding of the conflicts and
the consequences to be expected." In this case, the majority of the Board Q finds that the
Updated ESEE Analysis provides a "clear understanding of the conflicts and consequences
to be expected" if the RI uses are allowed on the subject Properties.
Exhibit G to Ordinance 2023-015 14
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
The majority of the Board further finds that the Updated ESEE Analysis is supported by
substantial evidence in the record, as it was prepared by a land use consultant with specific
expertise and knowledge of Central Oregon. (See Attachment D to the Applicant's Exhibit 1.)
Additionally, both the Applicant and the Applicant's consultant added select evidence to the
record further confirming that consultant's expert opinions and observations. (See
Attachment A to the Applicant's Exhibit 1, Attachment B to the Applicant's Exhibit 1, Exhibits
3, 4, and 5.) In fact, the Board notes that the record contains absolutely no evidence that
contradicts those opinions and observations contained in the Updated ESEE Analysis. The
only evidence in the record not submitted by County staff or the Applicant is COLW's
singular July 5 record submittal which asserts only legal challenges and includes as
attachments only Ordinance 92-052 and select portions of Ordinance PL-20.
Accordingly, the majority of the Board (specifically adopts and incorporates as its own the
Updated ESEE Analysis. That updated ESEE Analysis is further included as part of these
findings, attached as Exhibit I. Last, the Board notes that these findings, including the
Updated ESEE Analysis, will be included by reference in DCC Chapter 23.01 and Section 5.12
of the DCCP.
(5) Develop a program to achieve Goal 5. Local governments shall
determine whether to allow, limit, or prohibit identified conflicting uses
for significant resource sites. This decision shall be based upon and
supported by the ESEE analysis. A decision to prohibit or limit
conflicting uses protects a resource site. A decision to allow some or all
conflicting uses for a particular site may also be consistent with Goal 5,
provided it is supported by the ESEE analysis. One of the following
determinations shall be reached with regard to conflicting uses for a
significant resource site:
(a) A local government may decide that a significant resource site
is of such importance compared to the conflicting uses, and the
ESEE consequences of allowing the conflicting uses are so
detrimental to the resource, that the conflicting uses should be
prohibited.
(b) A local government may decide that both the resource site
and the conflicting uses are important compared to each other,
and, based on the ESEE analysis, the conflicting uses should be
allowed in a limited way that protects the resource site to a
desired extent.
(c) A local government may decide that the conflicting use should
be allowed fully, notwithstanding the possible impacts on the
resource site. The ESEE analysis must demonstrate that the
conflicting use is of sufficient importance relative to the resource
site, and must indicate why measures to protect the resource to
Exhibit G to Ordinance 2023-015 15
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
some extent should not be provided, as per subsection (b) of this
section.
FINDING: In addition to being "afforded fairly broad discretion" in conducting the ESEE
Analysis pursuant to OAR 660-023-0040(4), state law further provides the Board the same
"broad discretion" when it comes to determining "whether, how, and to what extent a Goal
5 resource will be protected" pursuant to OAR 660-023-0040(5). See Central Oregon
LandWatch v. Deschutes County, Or LUBA _ (LUBA No 202-019, March 22, 2021) (internal
citations omitted).
The Board notes that the Applicant's recommendation pursuant to OAR 660-023-0040(5) to
allow, limit, or prohibit the conflicting uses has evolved throughout the course of these
proceedings. Initially, the Applicant's June 23 record submittal advocated for what was
described as the "middle ground" option pursuant to OAR 660-023-0040(5)(b) whereby the
conflicting uses would be allowed in a "limited way," with those limitations being imposed
by the County's existing LM Zone. The Applicant further noted that it never sought as part
of these proceedings to remove the subject Properties from the LM Zone and the Applicant
did not otherwise propose amending DCC Chapter 18.84 implementing that LM Zone.
COLW's July 5 record submittal alternatively asserted that the Board should prohibit the
conflicting use entirely pursuant to OAR 660-023-0040(5)(a). COLW further argued that
"bootstrapping the existing LM Zone as a program to achieve Goal 5 to protect scenic view
resources from the conflicting uses of the [RI] zone is not sufficient to comply with LUBA's
remand order, because the LM [Z]one was not designed with those industrial conflicting
uses in mind."
The Applicant responded to COLW's July 5 argument in two ways. First, the Applicant's July
19 rebuttal submittal included numerous documents (Exhibits 8 through 14) challenging
COLW's foundational assumption that the LM Zone was not designed to mitigate RI uses.
The Applicant's aforementioned exhibits demonstrate that from the LM Zone's initial
creation in the early 1990s, it has always overlaid other RI zoned properties adjacent to
Highway 97. Second, and more importantly, the Applicant's July 26 final legal argument
pivoted away from recommending that the conflicting uses be allowed in a limited way
pursuant to OAR 660-023-0040(5)(b). In response to COLW's arguments regarding the LM
Zone, the Applicant instead recommended that the Board allow the conflicting uses fully
pursuant to OAR 660-023-0040(5)(c).
As explained further below, the majority of the Board agrees with the Applicant and finds
that the conflicting uses in this case should be allowed fully pursuant to OAR 660-023-
0040(5)(c). During deliberations, Commissioner Chang explained that he preferred the
"middle ground" option allowing the conflicting use in a limited way pursuant to OAR 660-
023-0040(5)(b). Accordingly, no commissioner agreed with COLW's argument to prohibit the
conflicting uses entirely pursuant to OAR 660-023-0040(5)(a).
Exhibit G to Ordinance 2023-015 16
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
The Board finds that the Updated ESEE Analysis (included as Exhibit I herein)
comprehensively documents numerous positive consequences of allowing uses allowed
under the RI zone on the subject Properties. Those positive consequences include, for
example, economic opportunities for the subject Properties' owners, employment
opportunities for future employees, and additional services for rural landowners between
the cities of Bend and Redmond. Although the provision governing the RI zone (i.e., DCC
Chapter 18.100) limited the size, scope, and intensity of any industrial use that could be
permitted on the subject Properties, the Updated ESEE Analysis further documents that all
industrial developments are in short supply in Deschutes County. The Board specifically
notes that both industrial developments in the Cities of Bend and Redmond currently have
a 0.80% and 2.45% vacancy rate, respectively. Industrial land as a whole in Deschutes
County is limited.2 The Updated ESEE Analysis further documents positive environmental
consequences stemming from reduced travel distances lowering carbon emissions for the
numerous rural property owners and existing businesses already located along the
Highway 97 corridor between the Cities of Bend and Redmond.
The Board also finds that the Updated ESEE Analysis appropriately documents negative
consequences that will stem from allowing RI uses on the subject Properties. The County's
Goal 5 scenic view program primarily benefits what are best described as "social" and
"environmental" values, and the Updated ESEE Analysis thereby primarily documents
negative consequences under those categories.
However, the Board finds that the Updated ESEE Analysis demonstrates that the negative
social and environmental consequences of allowing RI uses on the subject Properties are
minimized by the numerous existing developments on surrounding properties. Many of
those existing developments are in direct view of Highway 97, thereby diminishing the
existing scenic view resources. These numerous existing developments, the majority of
which are on properties that are also within the LM Zone, are documented further by the
Applicant's Exhibits 2, 3, 4, and 5 submitted in conjunction with the Updated ESEE Analysis.
Those exhibits demonstrate that a hill rises directly to the west of the subject Properties
blocking the more expansive views enjoyed by other properties also adjacent to Highway
97. And, numerous structures were permitted to be developed on that hillside, even
further diminishing the scenic view resources near the three subject Properties. Rather
than new RI development in an otherwise unobstructed view shed, the Updated ESEE
Analysis appropriately documents the minimal negative consequences of allowing RI
development on the Properties already surrounded by existing and visible development.
To be clear, the Board does not mean to suggest that the scenic view resources in the
vicinity of the subject Properties are now entirely absent. Instead, the majority of the Board
finds that these existing developments in plain view of Highway 97 already diminished the
2 The RI Zone only permits rural industrial development and not urban development.
Exhibit G to Ordinance 2023-015 17
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
scenic view resources near the subject Properties such that the positive consequences of
allowing RI uses outweigh the minimal negative consequences.
Consistent with the aforementioned analysis and as specifically required by OAR 660-023-
0040(5)(c), the Board makes two additional findings. First, tThe majority of the Board finds
that the Updated ESEE Analysis demonstrates that allowing RI uses on the subject
Properties is "of sufficient importance" because the Goal 5 scenic view resources are
already diminished in the vicinity of the subject Properties. Stated simply, the majority of
the Board finds that the negative social and environmental consequences caused by visible
development in the view shed has already occurred such that the positive social and
environmental consequences of now allowing RI uses clearly outweigh any increased
negatives.
Second, the majority of the Board finds that the Updated ESEE Analysis demonstrates why
measures to protect the Goal 5 scenic view resources should not be provided. Specifically,
the majority of the Board finds that the County's existing Goal 5 program has not been as
successful in protecting an unobscured view shed in this particular location because of the
natural topography to the west of the subject Properties which makes any structure built
thereon particularly notable from Highway 97. Accordingly, the majority of the Board finds
that further burdening subsequent development on the subject Properties cannot cure the
already obscured view shed, rendering such further burdens unwarranted.
OAR 660-023-0050, Programs to Achieve Goal 5
(1) For each resource site, local governments shall adopt comprehensive
plan provisions and land use regulations to implement the decisions
made pursuant to OAR 660-023-0040(5). The plan shall describe the
degree of protection intended for each significant resource site. The
plan and implementing ordinances shall clearly identify those
conflicting uses that are allowed and the specific standards or
limitations that apply to the allowed uses. A program to achieve Goal 5
may include zoning measures that partially or fully allow conflicting
uses (see OAR 660-023-0040(5)(b) and (c)).
FINDING: As previously stated, the Board notes that these findings, including the Updated
ESEE Analysis, will be included by reference in DCC Chapter 23.01 and Section 5.12 of the
DCCP. The majority of the Board finds that no other amendments to the DCC or DCCP are
required to implement the Board's decision pursuant to OAR 660-023-0040(5).
An argument could be made that following the Board's decision to allow the conflicting use
fully, the County may now proceed with removing the subject Properties from the LM Zone.
However, the Board finds that the County need not undertake any amendment to the DCC
Exhibit G to Ordinance 2023-015 18
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
or the DCCP at this time because the Applicant's July 26 final legal argument specifically
included a statement consenting to the three subject Properties remaining in the LM Zone
until such time that the County elects to further alter or amend that zone in a manner
effecting the subject Properties. Tthe application before us does not propose to rezone the
Properties to remove the LM zoning designation. The Applicant explained that its initial
land use application did not seek the removal of the subject Properties from the LM Zone,
and the County's public notices and notices to DLCD, for example, did not contemplate
such an amendment. As understood by the Board, the Applicant is therefore voluntarily
agreeing that the subject Properties should remain in the LM Zone, and that any
subsequent development on the subject Properties needs to comply with DCC Chapter
18.84. If the County ever undertakes a broader amendment to the LM Zone, it will need to
go through the Goal 5 process anew which could result in a later Board of County
Commissioners' reaching a different decision. As understood by the Board, tThe Applicant
is voluntarily agreeing agrees that the subject Properties remain in the LM Zone, and that
any subsequent development on the subject Properties must comply with DCC Chapter
18.847. Like the Applicant, the Board is not aware of any statute, rule, or case law that
precludes a property owner from voluntarily consenting to comply with what otherwise
could be argued are inapplicable land use regulations.
(2) When a local government has decided to protect a resource site
under OAR 660-023-0040(5)(b) * * *>
FINDING: The Board elected to allow the conflicting use fully pursuant to OAR 660-023-
0040(5)(c). This provision is therefore inapplicable.
(3) In addition to the clear and objective regulations required by section
(2) of this rule, except for aggregate resources, local governments may
adopt an alternative approval process * * *.
FINDING: The Board elected to allow the conflicting use fully pursuant to OAR 660-023-
0040(5)(c). This provision is therefore inapplicable.
IV. DECISION:
Based upon the foregoing Findings of Fact and Conclusions of Law, the Board of County
Commissioners hereby APPROVES on remand the Applicant's applications for a
Comprehensive Plan Map amendment to re -designate the subject Properties from
Agriculture (AG) to Rural Industrial (RI) and a corresponding zoning map amendment to
change the zoning from Exclusive Farm Use - Tumalo/Redmond/Bend Subzone (EFU-TRB)
to Rural Industrial Zone (RI) subject to the following conditions of approval:
1. The maximum development on the Properties shall be limited to produce no more
than 32 trips in the PM peak hour and/or 279 daily trips as determined by the
Exhibit G to Ordinance 2023-015 19
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
Institute of Engineers Trip Generation Manual, 11 th Edition. The County may allow
development intensity beyond these maximum number of vehicle trips only if the
Applicant submits to the County a traffic impact analysis that demonstrates that the
proposed intensification of use would be consistent with the Transportation
Planning Rule and the Deschutes County Code.
Dated this 30th day of August 2023
Exhibit G to Ordinance 2023-015 20
File Nos. 247-21-000881-PA, 882-ZC (247-23-000398-A)
BOARD OF
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: August 30, 2023
SUBJECT: Historic Landmarks Commission Update
BACKGROUND AND POLICY IMPLICATIONS:
Staff seeks Board direction on potential options for the Deschutes County Historic
Landmarks Commission, which has been experiencing a slowdown in activity and currently
lacks a quorum.
BUDGET IMPACTS:
None
ATTENDANCE:
Tanya Saltzman, Senior Planner
Will Groves, Planning Manager
Peter Gutowsky, CDD Director
COMMUNITY DEVELOPMENT
MEMORANDUM
DATE: August 23, 2023
TO: Deschutes County Board of Commissioners
FROM: Tanya Saltzman, AICP, Senior Planner
RE: Historic Landmarks Commission Update
Staff seeks Board of County Commissioners (Board) direction on potential options for the Deschutes
County Historic Landmarks Commission (HLC), which has been experiencing a slowdown in activity
and currently lacks a quorum. Staff introduced this topic briefly to the Board during Other Items on
August 16, 2023.
1. HLC OVERVIEW
Since 2011, the HLC has served as an advisory body for issues concerning historic and cultural
resources for unincorporated Deschutes County and the City of Sisters and reviews development
applications for alterations to designated historic sites and structures. The cities of Redmond and
Bend have independent historic preservation review bodies. The Deschutes County Comprehensive
Plan Section 2.11 Cultural and Historic Resources and Deschutes County Code (DCC) Chapter 2.28,
Historic Preservation and Historic Landmarks Commission, establish the legal basis for the HLC.
Deschutes County, together with Sisters, is a Certified Local Government (CLG). The Certified Local
Government program is designed to promote historic preservation at the local level. It is a federal
program (National Park Service) that is administered by the Oregon State Historic Preservation
Office (SHPO). Local governments must meet certain qualifications to become "certified" and
thereby qualify to receive federal grants through SHPO and additional technical assistance. These
requirements include:
• Establish a historic preservation commission;
• Pass a preservation ordinance that outlines how the local government will address historic
preservation issues;
• Agree to participate in updating and expanding the state's historic building inventory
program;
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 P.O. Box 6005, Bend, OR 97708-6005
e. (541) 388-6575 @cdd@deschutes.org (5 www.deschutes.org/cd
® Agree to review and comment on any National Register of Historic Places nominations of
properties within the local government boundaries.
CLGs are eligible for non-competitive grants that fund work that supports the promotion of historic
preservation including surveys, nominations to the National Register of Historic Places, public
education, training, etc. The grants, which require a 50/50 in -kind match, have typically been in the
$5,000-$15,000 range in recent years. Deschutes County has applied for and received CLG grants
since 2009. Most recently, Deschutes County HLC applied and was approved for a smaller grant
amount ($5,500) owing to capacity issues and lack of projects that fit the grant funding parameters.
II. MEMBERSHIP AND RECRUITMENT
Until recently, the HLC had five voting members and one ex-officio member. In spring of 2023, two
committee members —including the then -Chair —resigned and another, longtime Commissioner
Sharon Leighty, passed away. Staff initiated recruitments for all three positions to coincide with May
Preservation Month. Low interest caused staff to extend the recruitment one month until the end
of June, and then again until August 15. Recruitments were posted on the HLC website and social
media, the CDD e-newsletter, and promoted via staff's professional networks. Ultimately only two
applications were submitted for the three open positions.
III. LOOKING AHEAD
It has become increasingly apparent that there is not currently robust interest in the HLC. This is
not for a lack of residents' appreciation of the rich history of Deschutes County; however, the
structure and role of the HLC does have some inherent limitations. County historic sites are
generally spread out, often more difficult to access, and lack the "critical mass" of historic sites that
cities can offer, an example being a downtown historic district. Most historic sites are private
property and require owner consent to either nominate, rehabilitate, or provide access. As such,
Deschutes County has not reviewed a property for the nomination of a local historic resource in
several decades.'
Recently, the HLC has focused on being a "connector," directing people to sources of potential grant
funds, education, processes, or local resources, since the HLC lacks the ability to directly participate
in (or fund) physical rehabilitation. CLG grant funds have recently been used either directly by the
City of Sisters (last year's primary project was to update its StoryMap of historic resources, for
instance) or for staff time in developing guiding documents such as the Strategic Plan and the
Policies and Procedures Manual. Participation in May Preservation Month has been limited for
various reasons, with the brunt of the planning being undertaken by local groups such as the
Deschutes County Historical Society and Three Sisters Historical Society & Museum, both of which
have reputations for lively and informative events, workshops, and tours.
1 Since 2011, there have been three successful nominations to the National Register of Historic Places: Deedon
Homestead, Pilot Butte Canal Historic District, and Central Oregon Canal Historic District.
Page 2 of 3
IV. BOARD CONSIDERATION
Given this trajectory and the constraints noted above, staff offers the following path for Board
consideration:
• Disband the Historic Landmarks Commission as it currently exists.
• Amend DCC Chapter 2.28 to delegate review of alterations to historic resources or
nominations of local significance to the Planning Division. This would be achieved through a
legislative process with a Planning Commission work session followed by a hearing before
the Board. Review of alterations of historic sites or structures would be processed as a land
use decision; local nominations of historic sites would be processed legislatively, starting
with the Planning Commission.
• DCC Chapter 2.28 would retain its references to the HLC with an amendment acknowledging
that if the HLC is not appointed, review authority rests with the Planning Division.
• Deschutes County/Sisters would no longer be a CLG and therefore would not be eligible for
CLG funding. For this grant cycle, no funding has yet been spent and staff would coordinate
with SHPO to ensure compliance.
• Staff will communicate with the City of Sisters CDD; going forward, Sisters would need to
address their own responsibilities as it pertains to their historic structures.
• In the future, if the community galvanizes and expresses support for appointing an HLC, staff
can coordinate with the Board during CDD's annual workplan to discuss the opportunity.
Staff recognizes the knowledge and commitment of its past and current Historic Landmarks
Commissioners, and greatly appreciates the expertise those individuals have chosen to bring to the
Deschutes County community.
Page 3 of 3