2024-4-Minutes for Meeting December 13,2023 Recorded 1/5/2024ES C-0
44
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541 ) 388-6570
•
Recorded in Deschutes County CJ2024-4
Steve Dennison, County Clerk
Commissioners' .journal 01 /05/2024 9:11:29 AM
2024-4
9:00 AM WEDNESDAY December 13, 2023
FOR RECORDING STAMP ONLY
Barnes Sawyer Rooms
Live Streamed Video
Present were Commissioners Tony DeBone and Phil Chang. Also present were
County Administrator Nick Lelack; Assistant Legal Counsel Kim Riley; and BOCC Executive Assistant
Brenda Fritsvold.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal webpage www.deschutes.org/meetinZS.
CALL TO ORDER: Chair DeBone called the meeting to order at 9:00 a.m. and noted the
excused absence of Commissioner Adair.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT: None
CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda.
Item 2 was pulled from the Consent Agenda for separate action —see next page.
Approval of Purchase Agreement and Dedication Deed from the Jesse and
Kimberly Dent Joint Trust for Right of Way for the Powell Butte Highway/Butler
Market Road Intersection Improvement Project
3. Consideration of Board Signature on letters thanking Pamela Ferguson, and
appointing Denise Gardiner, for service on the Newberry Estates Special Road
District
BOCC MEETING DECEMBER 13, 2023 PAGE 1 OF 10
4. Consideration of Board Signature on letter appointing Diane Tolzman for service
on the OSU Extension / 4H Advisory Council
CHANG: Move approval of the Consent Agenda items 1, 3 and 4
DEBONE: Second
VOTE: CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 2 - 0
2. Approval of a grant agreement with Free on the Outside for the purchase
and operation of new shelter and housing units for male justice -involved
individuals on supervision with Deschutes County Parole and Probation
Commissioner Chang said while he supported this proposal, he agreed that in
light of constituent concerns, further discussion was warranted. Noting that the
Board had discussed this grant and project in previous public meetings, he said
if the courts, law enforcement and the County's parole and probation team all
agree that someone is ready to re-enter the community under supervision, this
project will allow that person to be housed in a supportive transitional setting
where they are monitored and regularly engaged with. The alternative is to
release that same person back into the community where, if they are unable to
find housing, they may become homeless with no support, no supervision, and
out of the bounds of all regulatory framework. Commissioner Chang argued that
the former scenario is much better for all.
Commissioner DeBone said while the thought of having persons convicted of
certain crimes living nearby can be scary or awkward, this proposal represents a
best practice to provide a grounding environment to change behavior with the
support of parole and probation staff. He concluded that this project is
something to celebrate.
CHANG: Move approval of a grant agreement with Free on the Outside for the
purchase and operation of new shelter and housing units for male
justice -involved individuals on supervision with Deschutes County
Parole and Probation
DEBONE: Second
VOTE: CHANG:
DEBONE:
BOCC MEETING
Yes
Chair votes yes. Motion Carried 2 - 0
DECEMBER 13, 2023
PAGE 2OF10
ACTION ITEMS:
5. Ballot Measure 110: Public Safety Partners Presentation on a
Comprehensive Approach to Addressing Oregon's Addiction and Community
Livability Crisis
District Attorney Steve Gunnels said the Oregon Association of Chiefs of Police,
the Oregon State Sheriffs' Association, the Oregon District Attorneys Association
and the League of Oregon Cities have collaboratively developed numerous policy
proposals to address Oregon's severe addiction crisis and its many negative
effects. Together, these proposals comprise a comprehensive approach which
seeks to address the following: legislative changes; modifications in charging
drug crimes; specialty court funding; stabilization, detoxification and treatment;
opioid overdose quick response teams; and residential and secure residential
facilities.
Saying the County is on track this year to prosecute just 10% of the
methamphetamine possession charges it prosecuted in 2019, Gunnels explained
it is difficult to deal with the demand side of drug use if people cannot be
prosecuted for possessing small amounts. He viewed the inability to prosecute
such cases as hundreds of missed opportunities to assist people in receiving
treatment and support.
Gunnels expounded on the proposals, which include a reform of Measure 110 to
reclassify the possession of hard drugs as a Class A misdemeanor. The goal of
this change would be to steer users into treatment, and diversion options would
be offered to avoid a conviction. Gunnels believed this change would significantly
improve community safety and public health.
Other proposed changes are to revise the definition of delivery to include
possession with intent to deliver as well as the actual transfer of drugs, and to
allow a pre-trial hold for persons charged with dealing drugs. Also, since it's
estimated that 50-80% of property crime is committed by people with drug or
alcohol addiction, it's proposed that addicted persons who are charged with a
property crime are screened and connected to mandatory treatment when
needed.
Gunnels presented the remainder of the proposals, as follows:
• Create a new Class A misdemeanor for using drugs in public to align with
current law which prohibits public use of alcohol and marijuana;
• Create a new Class A misdemeanor for using drugs in enclosed public spaces
in a way that endangers another person who is not willing to be exposed;
BOCC MEETING DECEMBER 13, 2023 PAGE 3 OF 10
• Prioritize adequate and sustainable funding for specialty courts, which can be
very successful at reducing recidivism;
• Allow welfare holds of up to 72 hours for intoxicated persons who pose a
danger to themselves or others;
• Fund sustainable investments in sobering centers and stabilization and
treatment bed capacity for adults and juveniles;
• Support the establishment of Opioid Overdose Quick Response Teams; and
• Support aligning the siting of residential and secure residential facilities with
the requirements in the Fair Housing Act.
Commissioner Chang asked about the proposal to establish Opioid Overdose
Quick Response Teams. Gunnels said these could be done via public/private
partnerships but would have to involve law enforcement to ensure the safety of
team members.
Commissioner DeBone said these changes are a high priority for many across the
state and expressed his appreciation for the specific recommendations.
Commissioner Chang agreed that all of these actions are needed to address the
crisis.
In response to the consensus of the Commissioners to send a letter to the
Governor and State legislators expressing support for these proposals, County
Administrator Nick Lelack said staff will draft a letter for the Board's
consideration next week.
6. Public Hearing and consideration of ordinance to amend section 2.37.120 of
Deschutes County Code to clarify contract processing procedures
Dave Doyle, County Counsel, explained that the amendment would clarify the
County's procedure for processing contracts administratively after a Notice of
Intent to Award has been approved by the Board of Commissioners.
The public hearing was opened at 9:52 am. There being no one who wished to testify,
the public hearing was closed at 9:52 am.
CHANG: Move approval of first and second reading of Ordinance
No. 2023-026, amending Section 2.37.120 of Title 2.37, Contracting, of
Deschutes County Code
DEBONE: Second
VOTE: CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 2 - 0
BOCC MEETING DECEMBER 13, 2023 PAGE 4 OF 10
Chair DeBone read the title of the ordinance into the record two times.
CHANG: Move emergency adoption of Ordinance No. 2023-026, amending
Section 2.37.120 of Title 2.37, Contracting, of Deschutes County
Code, to take effect on January 1, 2024
DEBONE: Second
VOTE: CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 2 - 0
VA
8.
Sale of property at 51950 Huntington Road in La Pine to Habitat for
Humanity La Pine Sunriver
Kristie Bollinger, Property Manager, reviewed the Board's direction to donate and
sell a combination of five acres in La Pine to Habitat for Humanity of La Pine
Sunriver for the development of affordable housing.
CHANG: Move approval of Board Order No. 2023-043 designating the
Deschutes County Property Manager, Kristie Bollinger, as the
Deschutes County representative for the purpose of signing
documentation to complete the sale of 5.02 acres of County -owned
property located at 51950 Huntington Road in La Pine
DEBONE: Second
VOTE: CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 2 - 0
The Commissioners spoke to the various benefits of this sale and project.
Veteran Behavioral Health Peer Support Specialist Program Grant
Application
Kristin Mozzocchi, Behavioral Health Program Manager, explained the request to
apply for a grant for the purpose of expanding the availability of peer -delivered
services to veterans who have behavioral health needs in order to improve their
health and well-being. Mozzocchi said if awarded, the grant would continue the
work done via a different grant that will expire at the end of this month. The new
funds would enable the provision of outreach and engagement services to
veterans who are high -risk and/or difficult to engage for another 19 months.
CHANG
Move to authorize the application for a Veteran Behavioral Health
Peer Support Specialist Program grant from the Oregon Health
Authority
BOCC MEETING DECEMBER 13, 2023 PAGE 5 OF 10
DEBONE: Second
VOTE: CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 2 - 0
The Board convened as the governing body of the Deschutes County 9-1-1 Service
District.
Contract with L3Harris for completion of DC911 Radio Enhancement Plan
Sara Crosswhite, 9-1-1 Service District Director, presented a proposed contract
with L3Harris for equipment and services to complete the District Radio
Enhancement Plan in FY25, specifically by installing equipment at the new 911
back-up center and at the County's Road Department. Crosswhite said this
contract is being brought forward before FY25 to allow the vendor to order and
stage the necessary equipment to complete both radio sites in FY25.
CHANG: Move approval of Chair signature on Document No. 2023-1042, an
agreement with L3Harris for 911 radio system enhancements
DEBONE: Second
VOTE: CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 2 - 0
he Board r reconvened r as the g g body of Deschutes County.
1 civerniirr
10. Oregon State Weed Board Grant Application for Deschutes County Noxious
Weed Project
Kevin Moriarty, County Forester, sought the Board's approval to apply for a State
Weed Board grant of $30,780, $12,000 of which would be used for public
outreach with $15,000 allocated to survey and treat key noxious weed species.
$3,780 would go toward administrative or indirect costs.
Commissioner DeBone recalled previous "Let's Pull Together" events which
organized community efforts to eliminate noxious weeds.
CHANG: Move to authorize the submittal of an application for an Oregon State
Weed Board Grant
DEBONE: Second
VOTE: CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 2 - 0
BOCC MEETING DECEMBER 13, 2023 PAGE 6 OF 10
11. Work Session: Plan Amendment and Zone Change at 64430 Hunnell Road
Jacob Ripper, Principal Planner, previewed a public hearing to be held next week
on a request to change the Comprehensive Plan designation of property at 64430
Hunnell Road from Agricultural to a Rural Residential Exception Area and also
change the zoning of the subject property from Exclusive Farm Use to Multiple
Use Agricultural (MUA-10). Ripper said the first of two required public hearings
was held before the Hearings Officer, who recommended the requests be
approved. Ripper described the property and said a proposed four -lot
subdivision has been put on hold pending the outcome of the map amendment
and rezone requests. No public comments were provided at the first public
hearing.
12. Ordinance No. 2023-027 - Bend Airport Text Amendments
Audrey Stuart, Associate Planner, reminded that on November 291h, the Board
adopted the recommendation of the Hearings Officer to approve the City of
Bend's application for text amendments to allow an air traffic control tower as a
new permitted use at the Bend Municipal Airport and also allow such a tower to
be up to 115 feet in height. Stuart said since the Board's approval, Bend has
asked that the enabling ordinance be adopted by emergency to take effect
sooner than 90 days.
Commissioner DeBone proposed that the ordinance be adopted by emergency
effective in 30 days; Commissioner Chang was amenable to this suggestion.
DEBONE: Move approval of first and second reading of Ordinance No. 2023-027
amending Deschutes County Code Title 18, Chapter 18.76, Airport
Development ("AD") Zone, and Chapter 18.80, Airport Safety ("AS")
Combining Zone, to add an air traffic control tower as a new
permitted use and allow an air traffic control tower to be up to 115
feet in height
CHANG: Second
VOTE: CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 2 - 0
Chair DeBone read the title of the ordinance into the record two times.
CHANG
Move adoption of Ordinance No. 2023-027 by emergency effective
in 30 days
Second
BOCC MEETING DECEMBER 13, 2023 PAGE 7 OF 10
VOTE: CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 2 - 0
13. Long Range Planning- Work Plan Update
Will Groves, Planning Manager, said the Community Development Department's
current Long Range Planning Work Plan contains several projects which are
nearing completion —these include the 2040 Comprehensive Plan update, the
Transportation Systems Plan update and the update of the Tumalo Community
Plan. Groves reminded that the purpose of the Work Plan is to decide upcoming
projects and implement the Board's priorities within available resources.
Commissioner Chang asked if CDD anticipates the Legislature will relieve
counties of the requirement to determine clear and objective standards for
housing in rural areas. Groves said this is not expected; rather, Planning
envisions that this work will have to be done by mid-2025 to comply with State
law. Groves added that once the County has adopted the required clear and
objective standards, it can also offer a subjective path should an applicant choose
to proceed in that way. Saying that this work will ensure that the County's Code is
enforceable and not subject to appeal, he expected to assign this task to two
long-range planners for 18 months.
Responding to Commissioner DeBone, County Administrator Nick Lelack
explained that this work will be different for other counties which have opted to
simply adopt the State's regulations pertaining to residential construction in rural
areas. Because Deschutes County has instead opted to be more restrictive, it will
have to develop the required clear and objective standards while still protecting
Goal 5 resources.
Continuing, Groves said following the completion of the Tumalo Community Plan,
other regional community plans due for updates are Newberry and Terrebonne.
Commissioner Chang questioned if Terrebonne's plan should be updated before
or after sewer is put in. Groves agreed that because the lack of sewer has
constrained development in Terrebonne, its availability will change the landscape
in that area.
Following further discussion and guidance from the Board, Groves said staff will
return with more specific proposals for these two updates before proceeding,
with Newberry being the initial effort ahead of Terrebonne.
BOCC MEETING DECEMBER 13, 2023 PAGE 8 OF 10
With respect to other possible work items which have not been initiated,
Commissioner Chang supported pursuing regional efforts to expand childcare
availability in the community.
OTHER ITEMS:
Commissioner DeBone reported on the Oregon Business Leadership Summit
held earlier this week in Portland.
County Counsel Dave Doyle presented a proposed amendment to the
intergovernmental agreement with the Oregon Judicial Department (C)JD)
concerning the County's courthouse expansion project.
Doyle said after initially agreeing to contribute $2 million to this project, the
State subsequently agreed to contribute an additional $15 million. The
proposed amendment to the IGA would formalize this second contribution
and at the same time grant OJD first right of refusal for the use of the third
floor shell of the expansion. Doyle recommended that the County restrict
this potential future use "for courtroom purposes" when and if needed and a
9-month advanced notification.
Following further discussion, the Commissioners were in consensus to
support the proposed amendment to the IGA as revised by County Counsel.
Deevy Holcomb, Community Justice Director, asked if the Board supports
protesting a decision by the Criminal Justice Commission to not award grant
funding to one Of the applications put forth by the County because the
application, from In Our Backyard, sought revenue for prevention services as
well as victim services, and the former is ineligible for JRI grant funding.
Holcomb added that protests must be submitted by December 20t"
Commissioner Chang supported submitting a protest. Commissioner
DeBone was neutral but did not oppose submitting a protest. Holcomb
stated that the County will proceed with submitting a protest along with a
revised application from In Our Backyard that is specific to the eligible victim
services.
A break was taken at 11:30 am. The meeting resumed at 11:34 am.
EXECUTIVE SESSION:
At 11:34 am the Board went into Executive Session under ORS 192.660 (2) (d) Labor
Negotiations and ORS 192.660 (2) (h) Litigation.
The Board exited Executive Session at 12:22 pm with no action taken.
BOCC MEETING DECEMBER 13, 2023 PAGE 9 OF 10
ADJOURN:
Being no further items to come before the Board, the meeting was adjourned at 12:22 pm.
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DATED this day of UiiW® 202-�-for the Deschutes County Board of
Commissioners.
ATTEST:
RECORDING SECRETARY
ANTHONY DEBONE, CHAIR
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PATTI ADAIR, VICE CHAIR
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PHIL CHANG, COMMISSIONER
BOCC MEETING DECEMBER 13, 2023 PAGE 10 OF 10
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BOARD OF
r COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS MEETING
9:00 AM, WEDNESDAY, DECEMBER 13, 2023
Barnes Sawyer Rooms - Deschutes Services Building - 1300 NW Wall Street - Bend
(541) 388-6570 1 www.deschutes.org
AGENDA
MEETING FORMAT: In accordance with Oregon state law, this meeting is open to the public and
can be accessed and attended in person or remotely, with the exception of any executive session.
Members of the public may view the meeting in real time via YouTube using this link:
http://bit.ly/3mminzv. 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/3h3ogdD.
• To join by phone, call 253-215-8782 and enter webinar ID # 899 4635 9970 followed by the
passcode 013510.
• If joining by a browser, use the raise hand icon to indicate you would like to provide public
comment, if and when allowed. If using a phone, press *9 to indicate you would like to
speak and *6 to unmute yourself when you are called on.
• When it is your turn to provide testimony, you will be promoted from an attendee to a
panelist. You may experience a brief pause as your meeting status changes. Once you
have joined as a panelist, you will be able to turn on your camera, if you would like to.
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 emoiled to citizeninput@deschutes.org or you may leave a brief voicemail at 541.385.1734.
CONSENT AGENDA
Approval of Purchase Agreement and Dedication Deed from the Jesse and Kimberly
Dent Joint Trust for Right of Way for the Powell Butte Highway/Butler Market Road
Intersection Improvement Project
2. Approval of a grant agreement with Free on the Outside for the purchase and operation
of new shelter and housing units for male justice -involved individuals on supervision
with Deschutes County Parole and Probation
3. Consideration of Board Signature on letters thanking Pamela Ferguson, and appointing
Denise Gardiner, for service on the Newberry Estates Special Road District
4. Consideration of Board Signature on letter appointing Diane Tolzman for service on the
OSU Extension / 4H Advisory Council
ACTION ITEMS
5. 9:10 AM Ballot Measure 110: Public Safety Partners Presentation on a Comprehensive
Approach to Addressing Oregon's Addiction and Community Livability Crisis
6. 9:40 AM Public Hearing and consideration of ordinance to amend section 2.37.120 of
the Deschutes County Code to clarify contract processing procedures
7. 9:50 AM Sale of property at 51950 Huntington Road in La Pine to Habitat for
Humanity La Pine Sunriver
8. 10:00 AM Veteran Behavioral Health Peer Support Specialist Program Grant Application
Convening as the governing body of the Deschutes County 911 Service District
9. 10:10 AM Contract with L3Harris for completion of DC911 Radio Enhancement Plan
December 13, 2023 BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 3
Reconvening as the governing body of Deschutes County
10. 10:20 AM Oregon State Weed Board Grant Application for Deschutes County Noxious
Weed Project
11. 10:30 AM Work Session: Plan Amendment and Zone Change at 64430 Hunnell Road
12. 10:45 AM First reading of Ordinance No. 2023-027 -Bend Airport Text Amendment
13. 10:55 AM Long Range Planning - Work Plan Update
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.
14. Executive Session under ORS 192.660 (2) (d) Labor Negotiations
ADJOURN
December 13, 2023 BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 3
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BOARD OF
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MEETING DATE: December 13, 2023
SUBJECT: Ballot Measure 110: Public Safety Partners Presentation on A Comprehensive
Approach to Addressing Oregon's Addiction and Community Livability Crisis
BACKGROUND AND POLICY IMPLICATIONS:
The Oregon Association of Chiefs of Police, the Oregon State Sheriffs' Association, the
Oregon District Attorneys Association and the League of Oregon Cities have collaboratively
developed numerous policy proposals to address Oregon's severe addiction crisis, the
alarming rise in fentanyl overdose -related deaths, and the detrimental effects the crisis is
having on community safety and quality of life across the state. Together, these proposals
constitute a comprehensive approach to the problems being experienced.
Deschutes County District Attorney Stephen Gunnels will present the proposals and invite
questions from the Board.
BUDGET IMPACTS:
None
ATTENDANCE:
Stephen Gunnels, District Attorney
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t� iction and Community Livability
The following policy recommendations are designed to address Oregon's severe addiction crisis,
the alarming rise in fentanyl overdose -related deaths, and the detrimental effects the crisis is
having on community safety and quality of life across our state. While some of these solutions are
specific to addressing certain provisions of Ballot Measure 110, the approach below is meant to
be comprehensive.
As your partners in public safety, we believe that Ballot Measure 110 failed to recognize that drug
addiction is both a public health and public safety crisis and requires solutions on both sides of
the ledger. Success will require new tools and a significant allocation of resources along with an
adaptable approach that recognizes the diverse needs and challenges of each Oregon
community.
Policy Proposal #1: Reclassify Possession of a Controlled Substance (PCS) from an E-
Violation to an A -Misdemeanor
We can restore Possession of a Controlled Substance (PCS) to an A -Misdemeanor and present
new post -BM 110 modifications that reflect the desire for treatment intervention. This should
include diversion eligibility and dismissal of a charge upon successful completion of the one-year
diversion and any required treatment (DUII approach). In addition, unlike DUII diversion, drug PCS
related cases should be eligible for multiple diversion entrances. The current E-violation for
possession of a controlled substance is ineffective and fails to connect persons struggling with
severe addiction to the treatment they need. An A -Misdemeanor with diversion will compel those
struggling with addiction to enter treatment without turning to an approach that focuses on
incarceration.
Policy Proposal #2: "Boyd/Hubbell Fix" -Modify the statutory definition of controlled
substance "delivery" to include the "transfer" of drugs and the "possession with intent to
transfer" drugs:
This fix focuses the policy solutions on the supply side of the equation with the dealer- not user -
end of the drug crisis in Oregon. By restoring 34-years of state law that allowed the State to charge
dealers when there is substantial evidence of the intent to deliver, like significant quantities of
drugs, lists of sales, and cash. The proposed fix simply and clearly modifies the definition of
"delivery" to include the "transfer" of drugs and the "possession with intent to transfer" drugs.
Policy Proposal #3: Modify the statutory pretrial hold language from SB 48 (2021
Legislative Session) to ensure that jails and judges have the flexibility to hold drug dealers
charged with Distributing a Controlled Substance (DCS) and repeat offenders.
Senate Bill 48 (2021) required the Presiding Judge of each judicial district, following guidance from
the Chief Justice and her Criminal Justice Advisory Council (CJAC), to enter a standing pretrial
order specifying to the sheriff (or any other supervising entity) those persons and/or offenses that
are subject to "Release on Own Recognizance" (ROR), subject to conditional release, or that are
not eligible for release until arraignment. A modification in this law could make it clear that a pre-
trial hold for dealers is a community priority.
Policy Proposal #4: Fund county probation departments to supervise misdemeanor theft
and property crime cases where defendants are dealing with an addiction/substance abuse
disorder.
Overall studies indicate that between 50% and 80% of property crimes committed in a community are
committed by those suffering from severe addiction who steal to support that addiction. Currently
county probation departments don't supervise misdemeanor theft or property cases which means
there is no opportunity for a drug/alcohol addiction screening and no requirement for drug treatment
as part of their supervision package. This makes mitigating future harm almost impossible and fails to
capture a population where there is significant overlap between persons committing property crimes
and those possessing controlled substances. This solution doesn't put additional pressure on the
defense bar, as these individuals are already involved in the criminal justice system - and simply
ensures they are screened and connected to mandatory treatment when needed.
Policy Proposal #5: Create anew A -Misdemeanor for "Public Use of a Controlled
Substance" to align with current law prohibiting public use of alcohol and marijuana
Create a Class A Misdemeanor for public use of a controlled substance. Public use includes use
in public and private buildings. The offense should be identified in statute as a "designated drug
related misdemeanor" for the purposes of ORS 423.478(4)(b), which will allow for state funding of
both treatment and supervision costs related to violations of the prohibition. This must be a
statewide law and not simply remove local preemption which will not allow for consistent
application across local jurisdictions or the access to local county jails.
Policy Proposal #6: Create a new Class A Misdemeanor for "Use of a Controlled
Substance in an Enclosed Public Space that Endangers another Person." (Escalates to Class
C Felony for Repeat Offenses)
Establishing a penalty for public use of a controlled substance must be accompanied with a
penalty for use in an enclosed public space that endangers another person. The language would
provide that "A person commits the crime of recklessly endangering another person if the person,
while in an enclosed area, knowingly ingests, inhales, ignites, combusts or consumes a controlled
substance in a manner that creates an immediate risk of ingestion, inhalation, or consumption by
another person. For this purposes of this section, "enclosed area" is defined as a building or
public transit vehicle or facility. It is an affirmative defense to this charge if all other persons
placed at risk by the defendant's conduct knowingly consent to the exposure. This crime would be
punishable as a Class A Misdemeanor, escalating to a Class C Felony for repeat violations. This
crime would be considered a "designated drug -related misdemeanor" for the purposes of ORS
423.478(4)(b).
Policy Proposal #7: Prioritize adequate and sustainable funding for Oregon's Specialty
Courts:
Inadequate state funding of Oregon's specialty courts is the biggest threat to their long-term
effectiveness and stability. In fact, Specialty Courts in several jurisdictions (including Multnomah,
Deschutes and Benton County) are at risk of discontinuing their operations.
Specialty Courts combine accountability and supervision with a treatment -oriented approach that
effectively addresses addiction and reduces recidivism rates among participants. Specialty
Courts are designed to tailor treatment plans and support services to address the specific needs
and challenges faced by participants. The approach has an established track record of success
that addresses addiction and equips participants with the tools and support necessary to
reintegrate into community life as productive citizens.
Policy Proposal #8: Establish authority to utilize welfare holds of up to 72 hours for
intoxicated persons who pose a danger to self or others:
In many western states, law enforcement, EMTs and other first responders are able to utilize
welfare holds of up to 72 hours where a person who is acutely intoxicated to a degree where they
pose a danger to themselves or others can be held in a custodial environment and given
supervised medical care. After 72 hours, the person is given the option to either leave on their
own or stay and receive additional services. The states that have implemented these policies
have seen a high level of engagement with aftercare and wrap -around services. This also gives
officers options other than jail or the emergency room for a person suffering from a severe
substance use disorder (SUD).
Policy Proposal #9: Create adequate stabilization, detoxification and treatment capacity
in jurisdictions throughout Oregon by making sustainable investments in sobering
center/stabilization and treatment bed capacity for adults and juveniles.
Oregon's absence of dedicated sobering centers and stabilization facilities leaves communities
helpless when dealing with severely addicted individuals who require detoxification and
stabilization before they can successfully enter treatment. Detoxification is often the first step in
the journey to recovery, as it helps individuals safely manage withdrawal symptoms and become
physically stable before they can fully engage in addiction treatment programs. The lack of this
capacity is a limiting factor in efforts to create an addiction to treatment pipeline. In addition, the
Legislature should explore immediate grant funding for the expansion of existing juvenile and adult
substance use disorder in -patient and outpatient treatment facilities.
Policy Proposal #10: Support the establishment of Opioid Overdose Quick Response
Teams:
In response to increased opioid-related deaths, Ohio has created "Naloxone Plus" teams, also
called Quick Response Teams (QRTs) that respond after a reported overdose and use of Narcan.
In this model, a small team reaches out to an individual who is recovering from an overdose event
and offers person -centered services. In Colerain Township, north of Cincinnati, the team has a
police officer, firefighter/EMT, peer recovery mentor, or treatment professional. Between 2015 and
2019, the team responded to over 400 overdose follow ups and of the individuals contacted, 80%
did an assessment and engaged in treatment. The goal of QRTs is to reach an individual in the time
immediately after an overdose event, within 72 hours as best practice (but ideally much sooner
than that) and to offer connections when the person may be ready to change due to the overdose
event. The proposal would create grant funding for Quick Response Teams (QRT's).
Policy Proposal #11: Support aligning the siting of residential and secure residential
facilities with the requirements in the Fair Housing Act:
There is a significant need in our communities for residential - and secure residential -facilities
for those experiencing mental health and substance abuse challenges across our State. This has
become even more urgent given the recent federal court decision and the ongoing crisis taking
place in our Oregon State Hospital. This is an urban and rural problem that is impacting
communities throughout Oregon. Ensuring our land -use policies for siting secure facilities comply
with federal requirements will expedite the desperately needed expansion of Oregon's behavioral
health residential treatment and supported housing capacity. All such facilities must meet the
safety and security requirements currently existing in statue but would otherwise be treated and
similarly situated housing.
Kevin Campbell, Oregon Association of Chiefs of Police
Jason Myers, Oregon State Sheriffs' Association
Amanda Dalton, Oregon District Attorneys Association
Scott Winkels, League of Oregon Cities
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MEETING DATE: December 13, 2023
SUBJECT: Veteran Behavioral Health Peer Support Specialist Program Grant Application
RECOMMENDED MOTION:
Move approval to apply for a Veteran Behavioral Health Peer Support Specialist Program
grant from the Oregon Health Authority.
BACKGROUND AND POLICY IMPLICATIONS:
Deschutes County Health Services (DCHS) is seeking approval to apply for the Oregon
Health Authority's Veteran Behavioral Health Peer Support Specialist Program. The purpose
of this grant program is to expand the availability of peer -delivered services to veterans
with behavioral health needs to improve their health and well-being. Peer support offers
participants a unique opportunity to engage in their behavioral health recovery within the
context of an affirming and empowering peer -to -peer relationship. Services are to be low -
barrier, community -based, and directed by the person being served. OHA intends to award
up to ten grants for this program.
The Veteran Behavioral Health Peer Support Specialist (VBHPSS) position funded by this
program would be part of the Adult Outpatient team, providing outreach and engagement
services to difficult to engage and high -risk veterans in the community. The position would
collaborate with the Adult Outpatient Team clinicians as well as North and South County
Hub clinicians, psychiatrists and case managers to wrap services around up to 20 eligible
veterans per year.
Duties of the VBHPSS include the following:
• Working closely with veterans and their care teams to support each veteran client in
self -identifying strengths, needs, and goals, while also addressing barriers to
behavioral health recovery and wellness;
• Striving to improve the behavioral health of veterans and address social
determinants of health which impact veterans and military personnel in their
communities by helping to navigate, as requested by the client, the VHA, state
systems, local municipal systems, or local community resources;
• Linking veterans to appropriate resources, assisting veterans in overcoming barriers
to availability and accessibility of services, and supporting veterans in developing
and strengthening community connections and natural supports through, but not
limited to, the peer relationship; and
• Providing a suite of regularly delivered peer support services and taking part in care
teams.
If awarded, DCHS would use the $227,000 funding to support the following for a 19-month
term:
• $199,364 for personnel: a 1.0 FTE VBHPSS, a 0.15 FTE Behavioral Health Supervisor,
and a VBHPSS supervisory stipend (all positions are currently filled),
$1,000 for Training,
$1,000 for Travel,
$5,000 for Social Determinants of Health, and
$20,636 for indirect
BUDGET IMPACTS:
If awarded, $227,000 revenue for the term February 1, 2024 through August 31, 2025
ATTENDANCE:
Kristin Mozzocchi, Manger, Behavioral Health Program
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MEETING DATE: December 13, 2023
SUBJECT: Oregon State Weed Board Grant Application for Deschutes County Noxious
Weed Project
RECOMMENDED MOTION:
Move to authorize the submittal of an application for an Oregon State Weed Board Grant
for Deschutes County.
BACKGROUND AND POLICY IMPLICATIONS:
The Natural Resources Department seeks Board authorization to apply for a State Weed
Board Grant for the purpose of producing outreach material, updating the noxious weed
trailer, and to survey and treat key noxious weed species within Deschutes County.
The Oregon Department of Agriculture (ODA) and the Oregon Watershed Enhancement Board
(OWEB) work together to administer the ODA Noxious Weed Grant Program Lottery funded
grant program. The project would utilize partners on the Deschutes County Noxious Weed
Board to develop outreach material and generate a unified message that could be
distributed throughout the County. Partners would also collaborate on surveys and
treatment for key A rated species like Hoary Alyssum and Orange Hawkweed.
Partners include: the Oregon Department of Agriculture, the USDA Forest Service, the
Bureau of Land Management, the City of Bend, the Deschutes Soil and Water Conservation
District, Bend Park and Recreation District and Black Butte Ranch.
If granted, the funds would be used for new trailer upgrades such as a bulletin board, new
audio/video equipment, aquatic and terrestrial invasive species models and presses,
printable material and short videos to display at outreach events. In addition, posters,
brochures and audio PSA messaging would be developed for distribution through media
channels. The Deschutes County Noxious Weed board would collaborate on surveys and
work with landowners to treat high priority species.
The grant cycle would be for approximately 18 months ending on April 30, 2025. A State
Weed Board grant has not been applied for since 2014, and our partners have requested to
increase efforts towards combating noxious weeds in Deschutes County. The awarded
funding would be the first phase in those efforts.
BUDGET IMPACTS:
If approved, the application could result in a grant award of $30,780. $12,000 would be
used for outreach material and trailer upgrades. $15,000 would be used for landowner
noxious weed treatments. Administrative or indirect costs would be $3,780.
The minimum 25% match would be provided through the Natural Resource Noxious Weed
Financial Assistance Agreement ($15,000) and funding allocated for consultation and
surveys ($15,000) for a total of a cash match of $30,000.
The cash match is from the Natural Resource Department 326 Fund.
ATTENDANCE:
Kevin Moriarty, County Forester
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MEETING DATE: December 13, 2023
SUBJECT: Plan Amendment and Zone Change at 64430 Hunnell Road
RECOMMENDED MOTION:
No motion required.
BACKGROUND AND POLICY IMPLICATIONS:
The Board of County Commissioners (Board) is conducting a work session on December 13,
2023, in preparation for a public hearing on December 20 to consider a Plan Amendment
and Zone Change. The applicant requests approval of a Comprehensive Plan Map
Amendment to change the designation of the subject property from Agricultural (AG) to a
Rural Residential Exception Area (RREA). The applicant also requests approval of a
corresponding Zoning Map Amendment (Zone Change) to change the zoning of the subject
property from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10). This will be
the second of two required public hearings.
BUDGET IMPACTS:
None
ATTENDANCE:
Jacob Ripper, Principal Planner
STAFF MEMORANDUM
Date: December 5, 2023
To: Board of County Commissioners
From: Jacob Ripper, Principal Planner
Re: Public Hearing following a Hearings Officer's Decision on a Plan Amendment and Zone
Change at 64430 Hunnell Road (File Nos. 247-23-000210-PA & 247-23-000211-ZC).
The Board of County Commissioners (Board) is conducting a work session on December 13, 2023,
in preparation for a public hearing on December 20 to consider a Plan Amendment and Zone
Change. The applicant requests approval of a Comprehensive Plan Map Amendment to change the
designation of the subject property from Agricultural (AG) to a Rural Residential Exception Area
(RREA). The applicant also requests approval of a corresponding Zoning Map Amendment (Zone
Change) to change the zoning of the subject property from Exclusive Farm Use (EFU) to Multiple Use
Agricultural (MUA-10). This will be the second of two required public hearings. The Hearings Officer's
Decision recommending approval of the application is attached to this memo as Attachment 2.
There was no appeal filed.
STANDARDS & APPLICABLE CRITERIA
Deschutes County Code, Title 18, County Zoning Ordinance
Chapter 18.04, Title, Purpose, and Definitions
Chapter 18.16, Exclusive Farm Use Zones
Chapter 18.32, Multiple Use Agricultural Zone
Chapter 18.136, Amendments
Deschutes County Code, Title 22, 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
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q� (541) 388-6575 @cdd@deschutes.org @ www,deschutes.org/cd
Division 6, Forest Lands
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 33, Agricultural Land
Oregon Revised Statues (ORS)
Chapter 215.211, Agricultural Land, Detailed Soils Assessment.
II. BACKGROUND
The applicant requests that Deschutes County change the zoning and the plan designation because
the subject property does not qualify as "agricultural land" under Oregon Revised Statutes (ORS) or
Oregon Administrative Rules (OAR) definitions. The applicant proposes that no exception to
Statewide Planning Goal 3, Agricultural Land, is required because the subject property is not
agricultural land.
A soils assessment conducted by a qualified soils professional approved by the Department of Land
Conservation and Development (DLCD) can be used by property owners to determine the extent of
agricultural land as defined in Oregon Administrative Rule (OAR) 660-033 Agricultural Land.
Submitted as the applicant's Exhibit 4, is a soil assessment titled, Site -Specific Soil Survey of Property
Located at 64430 Hunnell Road [... ], dated December 11, 2020, with field work completed my Soil
Scientist Michael Sowers, CCA-WR, CPSS, and the report prepared by Soil Scientist Brian T. Rabe,
CPSS, WWS, of Cascade Earth Sciences.
Staff notes the original proposal included a Tentative Plan (TP) application for a four -lot subdivision.
Because that subdivision application would be dependent on the successful outcome of the subject
plan amendment and zone change, the TP application has been placed "on hold" and decoupled
from the current applications. Several documents and materials submitted by the applicant include
information directed towards the approval of a subdivision but are not applicable to the plan
amendment and zone change.
III. TIMELINE
This proposal is not subject to the statutory 150-day timeline that applies to other land use actions.
IV. HEARINGS OFFICER RECOMMENDATION
The Deschutes County Hearings Officer held a public hearing on November 14, 2023. Only the
applicant's attorney provided testimony.
On November 23, 2023, the Hearings Officer issued a recommendation of approval for the
proposed Plan Amendment and Zone Change.
247-23-000210-PA, 211-ZC Page 2 of 3
V. BOARD CONSIDERATION
As the property includes lands designated for agricultural use, Deschutes County Code 22.28.030(C)
requires the application to be heard de novo before the Board, regardless of the determination of
the Hearings Officer. The record is available for inspection at the following link:
https://www.deschutes.org/cd/page/247-23-00021 0-pa-247-23-00021 I -zc-hunnell-road-plan-
amendment-and-zone-change
VI. CONCLUSION
The Hearings Officer's decision for this application identifies all applicable zoning ordinances and
evaluates compliance with the criteria and standards of those ordinances. The Hearings Officer
found the proposal meets all the requirements and recommends approval.
Attachments:
1. Area Map
2. Hearings Officer's Recommendation
247-23-000210-PA, 211-ZC Page 3 of 3
Mailing Date:
Wednesday, November 22, 2023
HEARINGS OFFICER RECOMMENDATION
FILE NUMBERS: 247-23-000210-PA, 247-23-000211-ZC
HEARING: November 14, 2023, 6:00 p.m. (the "Hearing')
Videoconference and Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
SUBJECT PROPERTY/ Groves Family Revocable Trust
OWNER: Map and Taxlot: 1612330000800
Situs Address: 64430 Hunnell Rd, Bend, OR 97703
(the "Subject Property")
APPLICANT/OWNER: Michael F. Groves and Cathie L. Groves (the "Applicant")
20075 Cox Lane
Bend, OR 97703
ATTORNEY: Elizabeth A. Dickson
Dickson Hatfield, LLP
400 SW Bluff Dr., Ste. 240
Bend, OR 97702
PROPOSAL: The Applicant requested approval of a Comprehensive Plan Map
Amendment to change the designation of the Subject Property from
Agricultural ("AG") to a Rural Residential Exception Area ("RREA"). The
Applicant also requests approval of a corresponding Zoning Map
Amendment (Zone Change) to change the zoning of the Subject
Property from Exclusive Farm Use ("EFU") to Multiple Use Agricultural
("M UA-10").
STAFF REVIEWER: Jacob Ripper, Principal Planner
Jacob. Ripper@deschutes.org
541-385-1759
I. APPLICABLE STANDARDS AND CRITERIA:
Deschutes County Code, Title 18, County Zoning Ordinance
Chapter 18.04, Title, Purpose, and Definitions
Chapter 18.16, Exclusive Farm Use Zones
Chapter 18.32, Multiple Use Agricultural Zone
Chapter 18.136, Amendments
Deschutes County Code, Title 22, 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 6, Forest Lands
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 33, Agricultural Land
Oregon Revised Statutes (ORS)
Chapter 215.211, Agricultural Land, Detailed Soils Assessment.
II. BASIC FINDINGS:
LOT OF RECORD: The Subject Property has been verified as a lawfully created lot of record as it was
created by a Land Patent in April of 1922, recorded in Volume 33, Page 67 of the Deschutes County
Book of Records. However, per DCC 22.04.040 (Verifying Lots of Record) lot of record verification is
only required for certain permits:
B. Permits Requiring Verification.
1. Unless an exception applies pursuant to subsection (B)(2) below, verifying a lot or
parcel pursuant to subsection (C) shall be required prior to the issuance of the
following permits:
a. Any land use permit for a unit of land in the Exclusive Farm Use Zones (DCC
Chapter 18.16), Forest Use Zone - 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 shown 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, a County Hearings Officer held in a prior zone
change decision (Belveron ZC-08-04; page 3), that a property's lot of record status was not required
247-23-000210-PA & 247-23-000211-ZC Page 2 of 36
to be verified as part of a plan amendment and zone change application. Rather, the Hearings
Officer concluded that the Applicant would be required to receive lot of record verification prior to
any development on the property. Therefore, the Hearings Officer, in this case, finds that this
criterion does not apply.
PROPOSAL: The Applicant requested approval of a Comprehensive Plan Map Amendment to
change the designation of the Subject Property from AG to RREA. The Applicant also requested
approval of a corresponding Zoning Map Amendment (Zone Change) to change the zoning of the
subject property from EFU to MUA-10. The Applicant requested that Deschutes County change the
zoning and the plan designation because the Subject Property does not qualify as "agricultural land"
under Oregon Revised Statutes ("ORS"), Oregon Administrative Rules ("OAR") or Deschutes County
Code definitions. The Applicant proposed that no exception is required to Statewide Planning Goal
3, Agricultural Land, because the Subject Property is not "agricultural land."
Staff, in the Staff Report (page 3), noted that the original proposal included a Tentative Plan ("TP")
application for a four -lot subdivision. Because that subdivision application would be dependent on
the successful outcome of the subject plan amendment and zone change, the TP application has
been placed "on hold" and decoupled from the current applications. Several documents and
materials submitted by the Applicant include information directed towards the approval of a
subdivision but are not applicable to the plan amendment and zone change.
SITE DESCRIPTION: The Subject Property is undeveloped and scattered with sagebrush and juniper
and is relatively flat. Although the Subject Property is zoned EFU, there is no indication in the record
of current or historic farm uses or agricultural uses. The Subject Property is not in farm tax deferral
and does not contain any irrigated areas nor does it have irrigation water rights.
SURROUNDING LAND USES: Surrounding land uses generally consist of rural residential uses as
well as some agricultural or small-scale farm uses. Zoning in the areas to the north, west, and south
are smaller 5- to 10-acre lots or parcels in the MUA10 Zone. The property directly to the east of the
Subject Property is approximately 80 acres in size, vacant, owned by Deschutes County, and is within
the EFU Zone. Properties further to the east are relatively large lots, owned by Deschutes County
and the City of Bend, and are predominately in the EFU and Open Space and Conservation ("OS&C")
Zones. Highway 97 runs approximately 0.85 miles to the southeast. The City of Bend's Urban Growth
Boundary and city limits are approximately 1.5 miles directly south. The Subject Property fronts on
Hunnell Road to the west, which is designated as a rural collector.
SOILS: According to Natural Resources Conservation Service ("NRCS") maps of the area, the Subject
Property contains three soil units:
NRCS Soil Map
27A Clovkamp Loamy Sand: Clovkamp Loamy Sand soils consist of 85 percent Clovkamp soils and
similar inclusions and 15 percent contrasting inclusions. The agricultural capability ratings of this
247-23-000210-PA & 247-23-000211-ZC Page 3 of 36
soil are 3s when irrigated and 6s when not irrigated. Section 18.04.030 of the DCC considers this soil
type high -value farmland' soil when irrigated.
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 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 farmland soil.
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. 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. This soil
type is not considered high -value farmland soil.
Site -Specific Soil Survey
Submitted as Exhibit 4 is a soil assessment titled, Site -Specific Soil Survey of Property Located at
64430 Hunnell Road [... ], dated December 11, 2020, with field work completed my Soil Scientist
Michael Sowers, CCA-WR, CPSS, and the report prepared by Soil Scientist Brian T. Rabe, CPSS, WWS,
of Cascade Earth Sciences (the "Applicant Soil Study").
A letter from the DLCD, dated April 12, 2021, and included with Exhibit 4, stated:
accordance with OAR 660-033-0045(6)(a), the Department of Land Conservation and
Development (DLCD) finds that this soils assessment is complete and consistent with reporting
requirements. The county may make its own determination as to the accuracy and acceptability
of the soils assessment. DLCD has reviewed the soils assessment for completeness only and has
not assessed whether the parcel qualifies as agricultural land as defined in OAR 660-033-0020(1)
and 660-033-0030."
' Deschutes County code, 18.04, defines "High Value Farmland" as:
"High -value farmland" means land in a tract composed predominantly of the following soils when they are
irrigated: Agency loam (2A and 213), Agency sandy loam (IA), Agency -Madras complex (313), Buckbert sandy
loam (23A), Clinefalls sandy loam (26A), Clovkamp loamy sand (27A and 28A), Deschutes sandy loam (31A,
31 B and 32A), Desch utes-Houstake complex (3313), Deskamp loamy sand (36A and 3613), Deskamp sandy
loam (3713), Era sandy loam (4413 and 45A), Houstake sandy loam (65A, 66A and 67A), Iris silt loam (68A),
Lafollette sandy loam (71A and 113), Madras loam (87A and 8713), Madras sandy loam (86A and 8613),
Plainview sandy loam (98A and 9813), Redmond sandy loam (104A), Tetherow sandy loam (150A and 15013)
and Tumalo sandy loam (152A and 15213). In addition to the above described land, high -value farmland
includes tracts growing specified perennials as demonstrated by the most recent aerial photography of the
Agricultural Stabilization and Conservation Service of the United States Department of Agriculture taken
prior to November 4, 1993. For purposes of this definition, "specified perennials" means perennials grown
for market or research purposes including, but not limited to, nursery stock, berries, fruits, nuts, Christmas
trees or vineyards but not including seed crops, hay, pasture or alfalfa.
247-23-000210-PA & 247-23-000211-ZC Page 4 of 36
Soil Scientist Mr. Rabe included the following summary and conclusions within the Applicant Soil
Study:
"The purpose of this report is to present the results of an assessment to verify and, where
necessary, refine the soils, map units, and boundaries mapped on the Site and to determine
whether the soils on the Site meet the land capability classification criteria for a non -resource
zoning designation.
The published soil survey information was reviewed and direct observations of soil conditions were
made at representative locations across the Site. CES has determined that the information from
the published soil survey was generally consistent with observations on the ground with boundary
refinements primarily limited to delineating components of the complex mapped by the NRCS
and/or commonly occurring inclusions. CES has determined that 26.2 acres, or 65.4916, of the Site
consists of Class Vll and Class VIII soils. Since the Site is predominantly Class Vll and Class Vlll soils
and does not otherwise meet the criteria for further consideration as agricultural land, the Site
meets the soils criteria for consideration of a non -resource zoning designation."
AGENCY COMMENTS: The Planning Division mailed notice on April 14, 2023, to several public and
private agencies and received the following comments:
Deschutes County Building Safety - Randy Sheid, Building Official:
"NOTICE: The Deschutes County Building Safety Divisions code mandates that Access, Egress,
Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. must be specifically addressed during
the appropriate plan review process with, regard to any proposed structures and occupancies.
Accordingly, all Building Code required items will be addressed, when a specific structure,
occupancy, and type of construction is proposed and submitted for plan review."
Deschutes Count Onsite Wastewater - Todd Cleveland, Manager:
'A complete approved site evaluation is required for each proposed residential lot prior to final
plat approval. Site evaluation applications for new properties need to include details of the
proposed lot lines and proposed septic system areas/test pit locations for each parcel."
Planning Staff Comment (Staff Report, page 5):
"The original application included a proposal for a four -lot subdivision, which this comment was
directed towards. Subsequently, it was determined that the subdivision would be reviewed once
the subject Plan Amendment and Zone Change decision becomes final."
Deschutes County Senior Transportation Planner - Peter Russel:
"I have reviewed the transmittal materials for 247 23-000210-PA1211 ZC/212-TP to amend the
Comprehensive Plan designation of a 40-acre property from Agriculture (AG) to Rural Residential
247-23-000210-PA & 247-23-000211-ZC Page 5 of 36
Exception Area (RREA) and change the zoning for that same property from Exclusive Farm Use
(EFU) to Multiple Use Agriculture (MUA-10) and a tentative plan to subdivide the property into four,
10-acre lots. The property is located at 64430 Hunnell Rd., aka County Assessors Map 16-12-33
Tax Lots 800. For reasons discussed below, staff finds more information is needed to address the
Transportation Planning Rule (TPR) and County code.
The applicant's traffic study dated April 17, 2023, is incomplete for two reasons. The TPR at Oregon
Administrative Rule (OAR) 660-012-0060 requires the demonstration of whether a plan
amendment/zone change will have a significant effect or not. To determine that, the traffic study
must include the operational analysis of the affected intersections predevelopment and post -
development. The traffic study lacks this information and thus does not comply with the TPR. The
TIA does analyze the segment of Hunnell Road itself for throughput, but not the intersection of the
future Groves Road/Hunnell Road. Second, Deschutes County Code (DCC) 18.116.310(G)(4)
requires zone changes to include a 20 year analysis. DCC 18.116.310(G)(10) requires existing and
future years levels of service (LOS), average vehicle delay, and volume%apacity (V/C) ratios both
with and without the project. (The V/C ratios are only applicable if ODOT facilities are analyzed.)
The TIA lacks this feature and thus does not comply with County code. The TIA does not use the
traffic volume standard of 9,600 Average Daily Traffic (ADT), which is set forth in the
Transportation System Plan (TSP) at Page 81, Table 2.2T2 (Generalized County Road Segment and
LOS). Further, the combination of the TPR and County code helps identify whether the
transportation system has adequate capacity to serve the plan amendment/zone change or if the
system is already overcapacity regardless of the proposed plan amendment/zone change. By
contrast, the applicant has submitted what is in essence a trip generation memo.
The property accesses Hunnell Road, a public road maintained by Deschutes County and
functionally classified as a collector. The property locks a driveway permit, the applicant will need
to either provide a copy of an access permit approved by Deschutes County or be required to
obtain one as a condition of approval to meet the access permit requirements of DCC 17.48.210(A).
The County will assess transportation system development charges (SDCs) when development
occurs based on the type of proposed use. However, as a plan amendment or a zone change by
itself does not generate any traffic and neither does the subdividing of the land, no SDCs are
triggered at this time. The SDCs are triggered by actual development."
Planning Staff Comment (Staff Report, page 6):
"The applicant submitted additional information to address these comments. Below is the
response from the Senior Transportation Planner."
Deschutes County Senior Transportation Planner - Tarik Rawlings
"These updated materials and the application materials in record satisfy the County's
requirements and no further materials or analysis are required from the applicant."
The following agencies either had no comment or did not respond to the notice: Arnold Irrigation
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District, Avion Water Company, Bend Fire, Bend La Pine School District, Bend Metro Parks and Rec,
Bend Planning Dept., Bend Public Works, BLM - Prineville, Department of State Lands, Dept of Land
Conservation & Development, Deschutes County Assessor, Deschutes County Property Mgmt.,
Deschutes County Road Department, OR Dept of Ag Land Use Planning, OR Dept of Agriculture, OR
Dept of Agriculture, OR Dept of Fish & Wildlife, OR Parks and Recreation, Swalley Irrigation District,
and Watermaster - District 11.
PUBLIC COMMENTS: On April 14, 2023, the Planning Division mailed a Notice of Application to all
property owners within 750 feet of the Subject Property. No comments from the public were
received. Only the Applicant, Applicant's representative and County Staff appeared at the Hearing.
No request was received prior to or at the Hearing to keep the record open to allow the submission
of additional evidence/argument. The Hearings Officer closed the record at the conclusion of the
Hearing. Following the Hearing a letter was received from Kenneth Katzaroff (Schwabe, November
20, 2023). The Hearings Officer finds that the Katzaroff letter was submitted after the close of the
record and therefore cannot be considered in the making of this recommendation.
NOTICE REQUIREMENT: The Applicant complied with the posted notice requirements of Section
22.23.030(B) of Deschutes County Code (DCC) Title 22. The Applicant submitted a Land Use Action
Sign Affidavit, dated March 30, 2023, indicating the Applicant posted notice of the land use action
on the Subject Property on that same date. On September 25, 2023, the Planning Division mailed a
Notice of Public Hearing to all property owners within 750 feet of the Subject Property. A Notice of
Public Hearing was published in the Bend Bulletin on Sunday, October 1, 2023. Notice of the first
evidentiary hearing was submitted to the Department of Land Conservation and Development on
September 22, 2023.
REVIEW PERIOD: According to Deschutes County Code 22.20.040(D), the review of the proposed
quasi-judicial Plan Amendment and Zone Change application is not subject to the 150-day review
period.
LAND USE HISTORY: Previous land use actions associated with the subject property are:
LR-90-16: Lot of record verification.
III. FINDINGS & CONCLUSIONS
PRELIMINARY FINDINGS
As noted above no person or entity offered oral testimony or written documentation, in a timely
manner, in opposition of the Applicant's proposal or the Staff Report in this case. As such, the
Hearings Officer finds that the Staff Report, as drafted, provides substantial evidence and legal
argument to allow the Hearings Officer to adopt the Staff Report as findings for this
recommendation.
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Staff discussed, in the Staff Report (see pages 12-23), evidence and legal issues related to Applicant's
choice to not seek a Goal 3 exception. The Hearings Officer provides the following supplemental
findings related to Applicant's decision not to seek a Goal 3 exception.
Relevant Law
The following quoted sections of statutes, regulations and case law represent a general overview of
the law related to whether a Goal 3 exception is warranted and/or necessary:
OAR 660-033-0020 (1)(a)
"Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service (MRCS) as predominantly Class
I -IV soils in Western Oregon and I -VI soils in Eastern Oregon;
(B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into
consideration soil fertility; suitability for grazing, climatic conditions; existing and future availability
of water for farm irrigation purposes; existing land use patterns; technological and energy inputs
required; and accepted farming practices, and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby
agricultural lands.
OAR 660-033-0030 (5 (b)
If a person concludes that more detailed soils information than that contained in the Web Soil Survey
operated by the NRCS, would assist a county to make a better determination of whether land qualifies
as agricultural land, the person must request that the department arrange for an assessment of the
capability of the land by a professional soil classifier who is chosen by the person, using the process
described in OAR 660-033-0045.
ORS 215.203 (2)(a)
As used in this section, 'farm use" means the current employment of land for the primary purpose of
obtaining a profit in money by raising, harvesting and selling crops or the feeding, breeding,
management and sale of, or the produce of, livestock, poultry, fur -bearing animals or honeybees or
for dairying and the sale of dairy products or any other agricultural or horticultural use or animal
husbandry or any combination thereof. "Farm use" includes the preparation, storage and disposal by
marketing or otherwise of the products or by-products raised on such land for human or animal use.
"Farm use" also includes the current employment of land for the primary purpose of obtaining a profit
in money by stabling or training equines including but not limited to providing riding lessons, training
clinics and schooling shows. "Farm use" also includes the propagation, cultivation, maintenance and
harvesting of aquatic, bird and animal species that are under the jurisdiction of the State Fish and
Wildlife Commission, to the extent allowed by the rules adopted by the commission. "Farm use"
includes the on -site construction and maintenance of equipment and facilities used for the activities
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described in this subsection. "Farm use" does not include the use of land subject to the provisions of
ORS chapter 321, except land used exclusively for growing cultured Christmas trees or land described
in ORS 321.267 (3) or 321.824 (3).
DCC 18.04
"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.
"Farm use" means the current employment of land for the primary purpose of obtaining a profit in
money by raising, harvesting and selling crops or 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. "Farm use" includes the preparation, storage and disposal by marketing or otherwise of the
products or by-products raised on such land for human or animal use. "Farm Use" also includes the
current employment of the land for the primary purpose of obtaining a profit in money by stabling or
training equines, including but not limited to, providing riding lessons, training clinics and schooling
shows. "Farm use" also includes the propagation, cultivation, maintenance and harvesting of aquatic
species and bird and animal species to the extent allowed by the rules adopted by the State Fish and
Wildlife Commission. "Farm use"includes the on -site construction and maintenance of equipment and
facilities used for the activities described above. "Farm use" does not include the use of land subject
to the provisions of ORS chapter 321, except land used exclusively for growing cultured Christmas
trees as defined in ORS 215.203(3). Current employment of the land for farm use also includes those
uses listed under ORS 215.203(2)(b).
Wetherell v. Douglas County, 342 Or 666 (2007) [hereafter referred to as "Wetherell Decision ,]2
Central Oregon LandWatch v. Deschutes County, LUBA No. 2023-006 (2023) [hereafter referred to as
the "LUBA 710 Decision"]
Goal 3 Analysis
The following represents the Hearings Officer's overview findings related to the legal approach to
be taken with respect to addressing Applicant's argument that the Subject Property is not
"agricultural land" and therefore no Goal 3 exception is required.
2 Staff, in the Staff Report (page 13), referenced the LUBA decision (52 Or LUBA 677 (2006)); the LUBA decision was
appealed to the Oregon Supreme Court. The legal issue referenced by Staff was not a focus of the Wetherell Oregon
Supreme Court decision.
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LUBA stated, in the LUBA 710 Decision (page 11), that "generally counties apply Exclusive Farm Use
(EFU) zones to'agricultural land"' (citing OAR 660-033-0090(1)). LUBA then proceeded to analyze the
laws/regulations/codes referenced above in the context of determining if the property identified in
that case was "agricultural land."
The LUBA 710 Decision (pages 13-18) analysis of OAR 660-033-0020(1)(a)(A) addressed the need to
meet identified U.S. Natural Resources Conservation Service ("NRCS") soil classifications. Generally,
OAR 660-033-0020(1)(a)(A) identifies soils (Eastern Oregon) classified as I -VI as "agricultural land."
However, LUBA (LUBA 710 Decision) held that OAR 660-033-0030(5) permits a county to rely, if certain
conditions are met, upon a site -specific soils assessment.
OAR 660-033-0020(1)(a)(B) provides that property can be considered "agricultural land" in "other soil
classes" if it 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."
The Hearings Officer refers to the OAR 660-033-0020(1)(a)(B) factors (i.e., soil fertility, suitability for
grazing, ect.) as the "Suitability Factors." OAR 660-033-0020(1)(a)(B) refers to ORS 215.203(2)(a) for
the definition of "farm use." ORS 215.203(2)(a), in part, states:
'farm use" means the current employment of land for the primary purpose of obtaining a profit
in money by..."
The Oregon Supreme Court (Wetherell Decision) and LUBA (LUBA 710 Decision) addressed the
"primary purpose of obtaining a profit" language in ORS 215.203(2)(a). The underlying County
interpretation of "primary purpose of obtaining profit" focused on whether or not each of the
Suitability Factors, in the context of whether it was reasonably possible (reasonable farmer concept)
to obtain a profit, were met on the specific subject property. The LUBA 710 Decision refined LUBA's
interpretation of "primary purpose of obtaining profit" to require consideration of property other
than (in addition to) just the property subject to the application (i.e., neighboring properties).
OAR 660-033-0020(1)(a)(C) provides that "agricultural land" includes "land that is necessary to permit
farm practices to be undertaken on adjacent or nearby agricultural land."
DCC 18.04 definitions of "farm use" and "agricultural land" are generally consistent with the OAR
660-033-0020(1)(a) and ORS 215.203 definitions.
The Hearings Office finds the LUBA 710 Decision is currently under appeal to the Oregon Court of
Appeals. The Hearings Officer considered the LUBA 710 Decision as instructional but not a final
statement of the law related to the determination of what is "agricultural land" under Oregon and
Deschutes County statutes/regulations/code. The Hearings Officer, however, did consider in this
247-23-000210-PA & 247-23-000211-ZC Page 10 of 36
recommendation the Applicant's Hearing testimony and submitted exhibits in the context of the
LUBA 710 Decision.
Title 18 of the Deschutes County Code
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 Applicant filed the required land
use application forms for the proposal. The application will be reviewed utilizing the applicable
procedures contained in Title 22 of the Deschutes County Code.
Section 18.136.020, Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the public interest is best
served by rezoning the property. Factors to be demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and the change is
consistent with the plan's introductory statement and goals,
FINDING: Conformance with relevant sections of the Deschutes County Comprehensive Plan is
reviewed below. The proposed rezoning from EFU to MUM 0 is required to be consistent with the
proposed new plan designation. In previous comprehensive plan and zone change
recommendations' to the Board of County Commissioners ("BCC") County hearings officers have
found that the introductory statement of the Comprehensive Plan to be aspirational in nature and
not necessarily approval criteria. The Hearings Officer, in this case, concurs with the prior BCC and
hearings officer findings that this section is aspirational and not an approval criterion.
B. That the change in classification for the subject property is consistent with the
purpose and intent of the proposed zone classification.
FINDING: In response to subsection (B) of this policy, the Applicant's Burden of Proof provides the
following:
3 Powell/Ramsey decision (PA-14-2, ZC-14-2) and Landholdings Decision (247-16-000317-ZC, 318-PA).
247-23-000210-PA & 247-23-000211-ZC Page 11 of 36
"The proposed Plan change from Agricultural to Rural Residential Exception Area and Zone change
from EFU-TRB to MUA-10 is consistent with the purposes and intents of the MUA zone classification.
Per DCC 18.32.010, the stated purposes of the MUA zone are as follows:
The purposes of the Multiple Use Agricultural Zone are to preserve the rural character of
various areas of the County while permitting development consistent with that character
and with the capacity of the natural resources of the area, to preserve and maintain
agricultural lands not suited to full time commercial farming for diversified or part time
agricultural uses; to conserve forest lands for forest uses, to conserve open spaces and
protect natural and scenic resources, to maintain and improve the quality of the air, water
and land resources of the County; to establish standards and procedures for the use of
those lands designated unsuitable for intense development by the Comprehensive Plan,
and to provide for an orderly and efficient transition from rural to urban land use.
The County's Transportation System Plan includes planned improvements for the triangle between
Highway 20 and Highway 97, as ODOT's management of the highways themselves is focusing on
streamlining these through -ways by reducing local points of ingress and egress to the highways.
The City of Bend and Deschutes County must develop local transportation networks that do not
rely on these highways for local trips. This change includes improvements to Hunnell Road,
scheduled for 2023. See Exhibit 7, Hunnell Road Project. City UGB Expansion includes expansion
northward as well, presently approximately 7600'south of the subject property. The MUA-10 lands
and other exception zone designations in the area are preferred lands for such expansion, as they
do not require conversion of resource lands to urban uses, which is disfavored as part of the urban
management process.
The MUA40 zone is the optimal county zone designation, to transition, the Subject Property to a
rural residential use. As detailed above and incorporated herein by reference, the Subject Property
is not suited for agricultural use, as evidenced by the site -specific study of its soils (Exhibit 4). This
property is more appropriately zoned MUA-10, like the surrounding property on 3 sides. The
Subject Property is currently zoned Exclusive Farm Use (EFU) likely due to generalized designations
in the overall area and/or prior ownership of larger parcels, rather than consideration of the
agricultural capability of the land itself. The Property is not documented as ever having been in
farm or pasture use, since it is unirrigoted. It is not feasible to engage in productive or profitable
farming activity without water rights, and the soils classified Classes Vll and Vlll will not sustain
significant usable plant growth without irrigation.
This Comprehensive Plan Map and Zoning Map Amendment request will standardize zoning in the
area and address the potential conflict and incompatibility between the EFU permitted uses and
the adjacent, surrounding lands developed or committed for exception uses. The requested
Comprehensive Plan Map and Zoning Map amendments will result in a zoning assignment that is
compatible with neighboring properties rather than the current EFU zoning.
Rezoning of the Subject Property from EFU to MUA-10 will resolve the latent conflict between EFU
permitted uses and the immediately adjacent rural residential uses. Furthermore, the
Comprehensive Plan Map and Zone Map change will serve the interests of the northwest Bend
247-23-000210-PA & 247-23-000211-ZC Page 12 of 36
residents, surrounding neighborhoods, and existing and future public investments in public
facilities and services along Hunnell Road.
By allowing for single family dwellings as an outright permitted use (DCC 18.32.020(B), the MUA-
10 zone recognizes that rural lands may sometimes be better suited for residential use than
agricultural uses. Other non -resource land uses are conditionally permitted; any nonresource land
development proposal on the property other than a single family dwelling would not be allowed
unless it was found to be consistent with the surrounding properties and the applicable
conditional use evaluation standards. Therefore, the proposed change in zoning is consistent with
the intent and purpose of the MUA-10 zone, and will be compatible with surrounding properties.
The Hunnell Road improvements already planned serve this change well. As a straightened,
widened, paved roadway, it is well planned to handle additional trips likely to be coming soon to
this growing area."
The Hearings Officer finds, based upon Applicant's record submissions, that Applicant has
demonstrated that the requested change in classification is consistent with the purpose of the
proposed zoning.
C. That changing the zoning will presently serve the public health, safety and welfare
considering the following factors:
1. The availability and efficiency of providing necessary public services and
facilities.
FINDING: Although there are no plans to develop the Subject Property in its current state, the above
criterion specifically asks if the proposed zone change will presently serve public health, safety, and
welfare. The Applicant provided the following response in the submitted Burden of Proof statement:
'The proposed change from EFU to MUA-10 will not require the extension of new public services to
the Subject Property. The site is already adjacent to enhanced infrastructure (Hunnell Road, Avion
water lines, and electrical power). The site will be served by on -site septic systems. Thus, public
facilities are available and can be efficiently provided to the site.
Subdividing the property and the Plan Amendment / Zone Change will presently serve public
health, safety, and welfare. The 40-acre parcel is not used as farm land at the present time because
its soils are not sufficient and it is not irrigated. The proposed land use approvals would allow this
land to be used safely and efficiently for uses allowed in the MUA-10 zone, benefiting public health,
safety, and welfare by utilizing the facilities already in place to expand housing in the area. The
surrounding areas contain numerous properties that are residentially developed and have water
service from a quasi -municipal source or wells, on -site sewage disposal systems, electrical service,
telephone services, etc. There are no known deficiencies in public services or facilities that would
negatively impact public health, safety, or welfare by allowing a housing supply increase.
Development of the property under MUA-10 zoning would need to comply with applicable
requirements of the DCC, including land use permits, building permits, and sewage disposal permit
processes. Through development review processes, assurance of adequate public services and
247-23-000210-PA & 247-23-000211-ZC Page 13 of 36
facilities will be verified and public health, safety, and welfare overall will be improved by the
addition of much needed housing in an underutilized area."
Staff noted (Staff Report, page 10) that prior to development of the Subject Property the Applicant
would be required to comply with the applicable requirements of the DCC, including possible land
use, building, and sewage disposal permits, in addition to approval of the related subdivision.
Through these development review processes, assurance of adequate public services and facilities
will be verified. The Hearings Officer agrees with Staff and the Applicant that Applicant's record
submissions demonstrate compliance with this criterion.
2. The impacts on surrounding land use will be consistent with the specificgoals
and policies contained within the Comprehensive Plan.
FINDING: In response to this criterion the Applicant's Burden of Proof included the following
comments:
"This application asks for approval to change the Comprehensive Plan designation of non-
agricultural land to the more accurate Rural Residential Exception Area category, and rezone the
Subject Property from EFU-TRB to MUA-10. The MUA-10 zone serves as a transition between EFU
lands with productive soils and other rural lands that are "not suited to full time commercial
farming" and are more appropriately suited for "diversified or part time agricultural uses." The
MUA-10 zone retains consistency with EFU lands by allowing a limited array of rural uses and
mandating a 10-acre minimum lot size. There are only a limited number of uses allowed in the
MUA-10 zone that are not also allowed in the EFU zone. Further, the majority of the different non -
resource land uses in the MUA-10 zone are conditional, thereby ensuring that potential impacts
on surrounding land uses are reviewed by the County during each application.
In summary, the MUA-10 zone remains a rural zone devoted to a mix of mixed rural and
residential uses that acknowledges soil deficiencies precluding profitable farm use. This minimizes
potential impacts on surrounding lands. The MUA-10 zoning would emphasize the continued
protection of the open space and wildlife values of the property with its 10-acre minimums."
In addition to these comments, the Applicant provided specific findings for relevant Comprehensive
Plan goals and policies, which are addressed below. The Hearings Officer concurs with Staff and
Applicant that the Applicant demonstrated, with evidence in the public record, that the impacts on
surrounding land use will be consistent with the specific goals and policies contained within the
Comprehensive Plan.
D. That there has been a change in circumstances since the property was last zoned,
or a mistake was made in the zoning of the property in question.
FINDING: In response to this criterion, the Applicant's Burden of Proof provides the following:
"Circumstances have changed since the zoning of the property in November, 1979. Much of
unirrigated lands were zoned EFU in large blocks in the interest of efficiency and expediency, even
247-23-000210-PA & 247-23-000211-ZC Page 14 of 36
though these parcels were dry and not profitably farmable. This property was zoned without
detailed or site specific consideration given to its history, soil, geologic, or topographic
characteristics. Now that a certified soils scientist has conducted a detailed Soils Investigation, it
is documented that the parcel does not qualify as agricultural farmland and is properly rezoned
to a practical designation reflecting the true facts of the parcel. See Exhibit 4.
In summary, the County's zoning of agricultural lands has been a process of refinement since the
1970s. The Subject Property appears to have never been suitable for production as profitable
agriculture and there is no record of it ever been actively farmed, due to its poor soil and lack of
irrigation water. Although it was originally assigned EFU zoning, this property likely should have
been originallyzoned MUA-10 due to its location, soils, geology, and lack of irrigation watersupply.
However, in 1979, only tracts with dwellings or divisions below minimum sizes were classified as
exception lands, regardless of soils. It is now known that the parcel should be rezoned to MUA-10,
consistent with the zoning of adjacent rural -residential uses and its poor soil. The MUA-10 zoning
assignment supports logical, compatible, and efficient use of the land in keeping with its highest
and best use."
Staff, in the Staff Report (page 12), stated the following:
"It is unclear to staff why the subject property was initially zoned EFU. Staff is unaware of any
evidence such as soil classification, availability of irrigation, or historic farming, which explains its
current zoning. Staff agrees with the applicant's findings that there have been several particularly
relevant changes in circumstances that warrant a zone change, especially in consideration of the
detailed information provided by the soil study. Staff finds the applicant has demonstrated
compliance with this criterion, but asks the Hearings Officer to amend or add to these findings as
the Hearings Officer sees fit.,,
The Hearings Officer agrees, after reviewing the documents in the record and considering the
testimony of County Staff and Applicant's representative at the Hearing, that the underlying
rationale and reasoning underlying the original zoning the Subject Property being zoned as EFU is
not clear and/or certain. The Hearings Officer finds that whatever the circumstances leading to the
decision to assign the Subject Property with the EFU designation there are many relevant factors
that are different today. Currently, urban style growth is moving towards the Subject Property and
farm uses in the immediate vicinity are rare; if they exist at all. Properties to the north and west of
the Subject Property are not in farm use; the property boarding to the north has been developed
as the Sun Cloud Estates subdivision and properties to the south and west are divided into
residential use parcels. The property boarding the Subject Property to the east is owned by the
County and based upon evidence in the record has not been used for farming or agricultural
purposes.
The Hearings also finds, based primarily upon the Applicant's site -specific soil study, that the soils
on the Subject Property do not support the original EFU zoning designation. The Hearings Officer
finds that there has been a change in circumstances since the Subject Property was zoned EFU. The
Hearings Officer also finds that the EFU zoning was a mistake. The Hearings Officer finds this
criterion is met.
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The Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Section 2.2, Agricultural Lands Policies
Goal 1, Preserve and maintain agricultural lands and the agricultural industry.
FINDING: The Applicant provided the following response in the submitted Burden of Proof
statement:
"As discussed below, the Subject Property is not correctly categorized as agricultural land, because
of its inability to retain water and sustain plant growth to a sufficient degree to make it profitable.
See the Applicant's soil study (Exhibit 4) and the responses in the submitted burden of proof, which
effectively demonstrate that the Subject Property is not suitable for designation as Agriculture in
the Comprehensive Plan. Changing the Subject Property's Comprehensive Plan designation and
zoning is an acknowledgment of site -specific facts, not interpretation.
The Hearings Officer incorporates the Preliminary Findings as additional findings for this criterion.
The Hearings Officer also incorporates the findings for Comprehensive Plan Policy 2.2.3 and OAR
660-006-0005, 660-015-0000(3), 660-033-0020 and 660-033-0030 as additional findings for this
criterion.
The Hearings Officer, based upon Applicant's record submissions and the incorporated findings,
concludes that the Subject Property is not "agricultural land" as that phrase is described in relevant
laws/rules and relevant land use case law. Therefore, the Hearings Officer finds this policy is not
applicable to the Subject Property.
Policy2.2.2 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 MUA-10.
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 Hearings Officer incorporates the Preliminary Findings as additional findings for this
criterion. The Hearings Officer also incorporates the findings for Comprehensive Plan Policy 2.2.3
247-23-000210-PA & 247-23-000211-ZC Page 16 of 36
and OAR 660-006-0005, 660-015-0000(3), 660-033-0020 and 660-033-0030 as additional findings for
this policy.
The Applicant is seeking approval of a plan amendment and zone change to re -designate and
rezone the properties from Agricultural to Rural Residential Exception Area. The Applicant is not
seeking an exception to Goal 3 - Agricultural Lands, but rather demonstrated that the Subject
Property does not meet the state definition of "Agricultural Land" as defined in Statewide Planning
Goal 3 (OAR 660-033-0020).
Staff provided the following comments in the Staff Report (page 13):
"The Land Use Board of Appeals (LUBA) allowed this approach in Wetherell v. Douglas County, 52
Or LUBA 677 (2006), and this approach has been utilized in the previous Plan Amendment and
Zone Change applications within Deschutes County. The County Hearings Officer also accepted
this method in file PA-10-5 (Rose & Associates). In Wetherell v. Douglas County, LUBA states at pp.
678-679:
As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are two ways
a county can justify a decision to allow nonresource use of land previously designated and
zoned for farm use or forest uses. One is to take an exception to Goal 3 (Agricultural Lands)
and Goal (Forest Lands). The other is to adopt findings which demonstrate the land does not
qualify either as forest lands or agricultural lands under the statewide planning goals. When
a county pursues the latter option, it must demonstrate that despite the prior resource plan
and zoning designation, neither Goal 3 or Goal 4 applies to the property. Caine v. Tillamook
County, 25 Or LUBA 209, 218 (1993), DLCD v. Josephine County, 18 Or LUBA 798, 802 (1990)."
Staff agrees that the facts presented by the applicant in the burden of proof for the subject application
are similar to those in the Wetherell decisions and in previous Deschutes County plan amendment
and zone change applications. Therefore, the applicant has the potential to prove the properties are
not agricultural land and do not require an exception to Goal 3 under state law."
The Hearings Officer, based upon the above -quoted Staff comments and the incorporated findings,
concurs with Staffs conclusion that the Applicant may attempt to prove the Subject Property is not
"agricultural land" and therefore does not require a Goal 3 exception.
Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity on
when and how EFU parcels can be converted to other designations.
FINDING: This plan policy provides direction to Deschutes County to develop new policies to
provide clarity when EFU parcels can be converted to other designations. In the findings for previous
Plan Amendment and Zone Change applications, the County has found that this policy does not
impose a moratorium on requests for applications of this type, and that nothing in this plan policy
prohibits the conversion of EFU parcels to other designations (see also PA-11-7, 247-16-000318-PA,
PA-10-5, PA-07-1 and more). The Hearings Officer concurs with the County's previous
determinations and finds the proposal is consistent with this policy.
247-23-000210-PA & 247-23-000211-ZC Page 17 of 36
Goal 3, Ensure Exclusive Farm Use policies, classifications and codes are consistent with
local and emerging agricultural conditions and markets.
Policy 2.2.13 Identify and retain accurately designated agricultural lands.
FINDING: The Hearings Officer incorporates the Preliminary Findings as additional findings for this
criterion. The Hearings Officer also incorporates the findings for Comprehensive Plan Policy 2.2.3
and OAR 660-006-0005, 660-015-0000(3), 660-033-0020 and 660-033-0030 as additional findings for
this policy.
This plan policy makes it clear that it is County policy to identify and retain agricultural lands that
are accurately designated. The Applicant proposed that the Subject Property was not accurately
designated as demonstrated by the soil study and the applicant's Burden of Proof. The Hearings
Officer finds that the EFU designation was not accurately placed on the Subject Property.
Section 2 5 Water Resources Policies
Goal 6, Coordinate land use and water policies.
Policy 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed for
significant land uses or developments.
FINDING: The Applicant is not proposing a specific development application at this time. Therefore,
the Applicant is not required to demonstrate the water impacts associated with development.
Rather, the Applicant will be required to address this criterion during development of the subject
property, which would be reviewed under any necessary land use process for the site (e.g.
conditional use permit, tentative plat). This criterion does not apply to the subject application.
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.
Policy 2.7.3 Support efforts to identify and protect significant open spaces and
visually important areas including those that provide a visual separation between
communities such as the open spaces of Bend and Redmond or lands that are
visually prominent.
Policy 2.7.5 Encourage new development to be sensitive to scenic view 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 Zone to certain adjacent properties. Staff noted (Staff Report, page 15) that no LM
Combining Zone applies to the subject property at this time. The Subject Property is also not located
247-23-000210-PA & 247-23-000211-ZC Page 18 of 36
within the Open Space and Conservation ("OS&C") Zone. Furthermore, no new development is
proposed under the present application. These provisions of the plan, therefore, are not impacted
by the proposed zone change and plan amendment.
Chapter 3, Rural Growth
Section 3.2, Rural Development
Growth Potential
As of 2010, the strong population growth of the last decade in Deschutes County was
thought to have leveled off due to the economic recession. Besides flatter growth patterns,
changes to State regulations opened up additional opportunities for new rural
development. The following list identifies general categories for creating new residential
lots, all of which are subject to specific State regulations.
• 2009 legislation permits a new analysis of agricultural designated lands
® Exceptions can be granted from the Statewide Planning Goals
• Some farm lands with poor soils that are adjacent to rural residential uses can be
rezoned as rural residential
FINDING: The Hearings Officer incorporates the Preliminary Findings as additional findings for this
criterion. The Hearings Officer also incorporates the findings for Comprehensive Plan Policy 2.2.3
and OAR 660-006-0005, 660-015-0000(3), 660-033-0020 and 660-033-0030 as additional findings for
this policy.
This section of the Comprehensive Plan does not contain Goals or Policies, but does provide the
guidance above. In response to this section, the Applicant's Burden of Proof provides the following:
"The County Comprehensive Plan above notes that "Some farm lands with poor soils that are
adjacent to rural residential uses can be rezoned as rural residential." The requested Plan
amendment is based on the results of the submitted Soils Investigation (Exhibit 4) which has
demonstrated that the Subject Property does not constitute "agricultural lands" as defined in the
goal, based upon a site -specific soils study conducted by a certified, professional soil scientist
(Brian Raby). Therefore, the proposal is consistent with this section of the Comprehensive Plan,
given that the Subject Property has been determined to be non -resource land appropriate for rural
residential development. Its poor soil and adjacency to rural residential areas on 3 sides and 7600'
from the Bend UGB make it an appropriate candidate for the change contemplated by this section
of the Plan."
Based upon the incorporated findings and the above -quoted Applicant response the Hearings
Officer finds Applicant's proposal in this case complies with this policy.
Section 3.3, Rural Housing
Rural Residential Exception Areas
247-23-000210-PA & 247-23-000211-ZC Page 19 of 36
In Deschutes County most rural lands are designated for farms, forests or other resources
and protected as described in the Resource Management chapter of this Plan. The majority
of the land not recognized as resource lands or Unincorporated Community is designated
Rural Residential Exception Area. The County had to follow a process under Statewide Goal
2 to explain why these lands did not warrant farm or forest zoning. The major determinant
was that many of these lands were platted for residential use before Statewide Planning
was adopted.
In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential
Exception Area parcels, enough to meet anticipated demand for new rural housing. As of
2010 any new Rural Residential Exception Areas need to be justified through taking
exceptions to farm, forest, public facilities and services and urbanization regulations, and
follow guidelines set out in the OAR.
FINDING: The Hearings Officer incorporates the Preliminary Findings as additional findings for this
criterion. The Hearings Officer also incorporates the findings for Comprehensive Plan Policy 2.2.3
and OAR 660-006-0005, 660-015-0000(3), 660-033-0020 and 660-033-0030 as additional findings for
this policy.
A County hearings officer's decision for file numbers PA-11-17/ZC-11-2 provides the following
findings in response to this portion of Section 3.3 of the Comprehensive Plan:
"To the extent that the quoted language above represents a policy, it appears to be directed at a
fundamentally different situation than the one presented in this application. The quoted language
addresses conversions of 'farm" or 'forest" land to rural residential use. In, those cases, the
language indicates that some type of exception under state statute and DLCD rules will be required
in order to support a change in Comprehensive Plan designation. See ORS 197.732 and OAR 660,
Division 004. That is not what this application seeks to do. The findings below explain that the
applicant has been successful in demonstrating that the subject property is composed
predominantly of nonagricultural soil types. Therefore, it is permissible to conclude that the
property is not 'farmland" as defined under state statute, DLCD rules, and that it is not correctly
zoned for exclusive farm use. As such, the application does not seek to convert "agricultural land"
to rural residential use. If the land is demonstrated to not be composed of agricultural soils, then
there is no "exception" to be taken. There is no reason that the applicant should be made to
demonstrate a reasons, developed or committed exception under state law because the subject
property is not composed of the type of preferred land which the exceptions process was designed
to protect. For all these reasons, the Hearings Officer concludes that the applicant is not required
to obtain an exception to Goal 3.
There is one additional related matter which warrants discussion in connection with this issue. It
appears that part of Staffs hesitation and caution on the issue of whether an exception might be
required is rooted in the title of the Comprehensive Plan designation that would ultimately apply
to the subject property - which is "Rural Residential Exception Area." There appears to be seven
countywide Comprehensive Plan designations as identified in the plan itself. These include
247-23-000210-PA & 247-23-000211-ZC Page 20 of 36
'Agriculture, Airport Development, Destination Resort Combining Zone, Forest, Open Space and
Conservation, Rural Residential Exception Area, and Surface Mining." Of the seven designations,
only Rural Residential Exception Area provides for associated zoning that will allow rural
residential development. As demonstrated by reference to the Pagel decision discussed above,
there appears to be instances in which rural residential zoning has been applied without the
underlying land necessarily being identified as an exception area. This makes the title of the "Rural
Residential Exception Area" designation confusing, and in some cases inaccurate, because no
exception is associated with the underlying land in question. However, it is understandable that
since this designation is the only one that will allow rural residential development, that it has
become a catchall designation for land types that are authorized for rural residential zoning. That
is the case with the current proposal, and again, for the some reasons set forth in Hearings Officer
Green's decision in Pagel, 1 cannot find a reason why the County would be prohibited from this
practice.
Based on the incorporated findings and the above -quoted comments this Hearings Officer agrees
with the past Deschutes County hearings officer interpretations and finds that the above language
is not a policy and does not require an exception to the applicable Statewide Planning Goal 3. The
Hearings Officer finds that the proposed RREA plan designation is the appropriate plan designation
to apply to the Subject Property.
Section 3.7, Transportation
The Transportation System was adopted in Ordinance 2012-005 and is hereby incorporated
into this Plan as Appendix C ...
Appendix C - Transportation System Plan
ARTERIAL AND COLLECTOR ROAD PLAN
Goal 4
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.
Policies
4.4 Deschutes County shall consider roadway function, classification and capacity as
criteria for plan map amendments and zone changes. This shall assure that
proposed land uses do not exceed the planned capacity of the transportation
system.
FINDING: This policy applies to the County and advises it to consider the roadway function,
classification, and capacity as criteria for plan amendments and zone changes. The County will
247-23-000210-PA & 247-23-000211-ZC Page 21 of 36
comply with this direction by determining compliance with the Transportation Planning Rule ("TPR"),
also known as OAR 660-012, as described below in subsequent findings.
OREGON ADMINISTRATIVE RULES CHAPTER 660, LAND CONSERVATION AND DEVELOPMENT
DEPARTMENT
Division 6, Goal 4 - Forest Lands
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
an approximately 3.6-mile radius. The Subject Property does not contain merchantable tree species
and there is no evidence in the record that the Subject Property has been employed for forestry
uses historically. None of the soil units comprising the parcel are rated for forest uses according to
NRCS data. The Subject Property does not qualify as forest land.
Division 33 - Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands;
OAR 660-015-0000(3)
To preserve and maintain agricultural lands.
Agricultural lands shall be preserved and maintained for farm use, consistent with existing
and future needs for agricultural products, forest and open space and with the state's
agricultural land use policy expressed in ORS 215.243 and 215.700.
FINDING: Goal 3 defines "agricultural land," which is repeated in OAR 660-033-0020(1). The Hearings
Officer incorporates the Preliminary Findings as additional findings for this criterion. The Hearings
Officer also incorporates the findings for Comprehensive Plan Policy 2.2.3 and OAR 660-033-0020
and 660-033-0030 as additional findings for this policy. The Hearings Officer finds that the Subject
Property is not "agricultural land" as defined by relevant Oregon laws/regulations.
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:
247-23-000210-PA & 247-23-000211-ZC Page 22 of 36
(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
Oregon4
FINDING: The Hearings Officer incorporates the Preliminary Findings as additional findings for this
criterion.
The Applicant's basis for not requesting an exception to Goal 3 is that the Subject Property is not
"agricultural land." In support, the Applicant offered the following response to the above definition
in addition to subsection (1)(c)5 as included in the submitted Burden of Proof statement:
"A professionally conducted Soils Investigation has demonstrated that the Subject Property is not
composed predominantly of Class I - VI soils (Eastern Oregon administrative standard cited above).
To analyze the soils on the site, the Applicant obtained the services of Brian Roby, a Certified
Professional Soil Scientist. The complete Soils Investigation report, detailing the procedures and
methodology used as well as the complete findings, is attached to this application as Exhibit 4. It
is certified by DLCD and that certification is included in the cited exhibit.
The purpose of the Soils Investigation for the Property was to determine the existence of
agricultural soils on the Subject Property for planning purposes. The soils were found to be
predominantly non-agricultural soils according to a certified and well -qualified soils scientist using
state sanctioned and approved field investigation methods and techniques. Thus, the Subject
Property as defined in OAR 660-033-0020 does not legally qualify as Agricultural land.
The Subject Property is characterized as a "lava plain north of Bend" on Page 2 of Exhibit 4. It has
no record of ever having been,irrigated, used for producing crops or grazing livestock, and is not
part of a farm unit and is currently vacant and unused. None of the surrounding properties are
used for profitable agriculture including the MUA-10 on three sides and the one EFU-zoned
abutting property to the east. They are predominantly developed with rural residences and small
hobby farms or are unused. There are no known commercial farm practices being undertaken on
adjacent or nearby agricultural lands.
The Subject Property is zoned Exclusive Farm Use (EFU), but this designation is not based on the
agricultural capability of the land, as the Subject Property has no record of ever having been in
farm or pasture use.
This is understandable, now that the soil classification of this specific property is known. The soil
types are Class Vll and Vlll and the property has no irrigation water rights. This Comprehensive
Plan Map and Zoning Map Amendment request will help to resolve the potential conflict and
4 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.
s "Agricultural Land" does not include land within acknowledged urban growth boundaries or land within acknowledged
exception areas for Goal 3 or 4.
247-23-000210-PA & 247-23-000211-ZC Page 23 of 36
incompatibility between the EFU permitted uses and the adjacent, surrounding lands developed
or committed for rural residential uses, and allow the land to be put to its highest and best use,
rather than continue to go fallow."
Staff (Staff Report, pages 19-20) provided the following comments:
"Staff has reviewed the soil study provided by Brian Rabe of Cascade Earth Sciences (dated
December 11, 2020) and agrees with the applicant's representation of the data for the subject
property. Staff finds, based on the submitted soil study and the above OAR definition, that the
subject property is comprised predominantly of Class Vll and Vlll soils and, therefore, does not
constitute 'Agricultural Lands" as defined in OAR 660-033-0020(1)(a)(A) above."
The Hearings Officer finds that the Applicant Soil Study is credible and constitutes substantial
evidence. The Hearings Officer finds that the Applicant Soil Study was conducted consistent with
DLCD requirements (Exhibit 4 - Letter from DLCD). The Applicant Soil Study found that the Subject
Property has 26.2 acres (65.4%) of Class VII and Class VIII soils. The Applicant Soil Study concluded
that the Subject Property is "predominantly" Class VII and Class Vill soils. The Hearings Officer finds
that OAR 660-033-0020 (1)(a)(B) describes "agricultural land," in Eastern Oregon, to include lands
that are predominantly Class I - VI. Based upon the Applicant Soil Study that the Subject Property is
predominantly Class VII and Class VIII soils. The Hearings Officer finds, per OAR 660-033-0020
(1)(a)(A) that the Subject Property is not "agricultural land."
(B) Land in other soil classes that is suitable for farm use as defined in ORS
215.203(2)(a), taking into consideration soil fertility, suitability for grazing,
climatic conditions, existing and future availability of water for farm
irrigation purposes, existing land use patterns; technological and energy
inputs required, and accepted farming practices, and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent
or nearby agricultural lands.
(b) Land in capability classes other than 1-IV/1-V1 that is adjacent to or intermingled with
lands in capability classes I-IIO/1-I01 within a farm unit, shall be inventoried as
agricultural lands even though this land may not be cropped or grazed,
FINDING: The Hearings Officer incorporates the Preliminary Findings as additional findings for this
criterion. The Hearings Officer finds that the Applicant addressed the OAR 660-033-0020 (1)(a)(B)
"Suitability Factors" in the Applicant Soil Study and in Applicant's Hearing testimony and Hearing
documentary submissions.
Staff, in the Staff Report (pages 20 - 21) included the following statements from the Applicant Soil
Study:
247-23-000210-PA & 247-23-000211-ZC Page 24 of 36
-11 FAMI y
That sdX ;aw predc+anWaank slatilCow twidt sandy textures (low etay content) and low organic
arrutLer cc?art nL I'Jrese uarrufitiOnS rOult irr as lor�v C:,at.ion. Exchange Capacity ( to E ) that liwits the
aal alit}' aaf thL u sails to rutaain r)wi lets, f r:rtili;1Cr nada.S, lie, apl`rlied to as faitve optirin-mma yields. Proper
rraaa,aaarVI)aerrt ru4uires th& lbrtilizurs tc upolud:f in mnaall dosa°.s orb a f'reri are:rat b? isis. The t:evewie han.
inert locally adapted crops will not cover the cos? s of i nputs and m naga;rn n.t.
f b i_t fi w..-qq) binfa
`'4riMmat wnwq dlryland grazing, is the only potenthil ;agriculVrr�1;11. use. t'he rtaag.e kand productivity
pot;_.aatiaal or me ss?ils inappcdaltlle Site dare shaagm in i at)le 6 of the pert hshed ,;aril sur-vey" •i'lie
produkvity ranges From 700 to 900 Ui l,l00 pounds of"dq rta.ana per pet, year (unfavor-able,
rion)aal, andi' favorable. corauition , respectsvaly) fair Wkaaarrfr 4cril,5_'� lay- praiduictivity ranges from
500 4) 700 to 900 pcni ds ofairy ruatter por acre pti - yt�ar (sarstdavorsably, raonnatl, and Javor•ah1c
condiki.aans, wspedatively) far (josney. It is often reconirraendod that a r,ukNtairrahle lcvcl aaf`gr4rzin
only r<e rnov es Am 29K of thy' MA p"Auction leaving the xi-irtaainde.r for of Qlic; amid,
4o.r ale & and d.lebtus t6i, bulk irYg, `aC it ogalalc C7a'nwr According to Oglic & B aalce', it takes an
mfra med 9125 fotnds of dq as titter tta teed as craw, and eali`parir, or egtuvaalerat, f(ir one month
(aarainml uAl rrumth AUPO). Based tin tlac <acruages ofeach aa:dl, the srtstainable dry raaatter
pmdrrction potential taar dle Site` raslagc s fr gin 5,100 Ui 6225 U) 8,450 poLia las, or aabotit 5 Via; 7 ter 9
A IM (unfavorable, rre nual, and favorable v;oaadANns, respectively). So the gtsArag pnte.rrt.ial is
lirrtited to 5 to 9 fair €a:rr darn:t aiontfl or less than dune pair for a year. This do,cs not represent a'Oiatrl.e:
Source ofgr-i+virrf ,
.3 000 D. cur. t%MMV B Mn 1OMaPcM n<'jb' : sa'rW ee,.,g p'ra?!� l .tPr�r.�Mfr':4 ulh,'S, kkvtt'k; t,. 3). oi.-v-, )�
[:h i amew of Agr•:c.ulur- - N atu!'al IUs"mlcl�s r. (un.xi vafi �11
(continued)
247-23-000210-PA & 247-23-000211-ZC Page 25 of 36
Climatic Conditions
'The gencrid climaitc cony diii<inti ,it lilt- Site are tr'pical of tflose. in till` Benil area With Cold WW'inias' iii d
Ww�arni, €,lryr minirne;rs 1`herc is no rvalsrua to believe there is, anything unique about rho c hniaite at this,
specific; loci ition that would, L.y itst:ll', V a9rraGtit speckil r ticlit,'on.
Exlstn,jntl �t�tttr� �A��il�bl�Oty_caf 1Nat�r fir irrl�tN�tT.
l lic Site i.a voitll.in the Sww iClc ;. t)rctglirl filip iitican C)i,strii t and Iliac it y Wwritci`;issigned t� it, I'vioM w�w t(l r
'?t11-i.riptitirtri is kiullyalloc tcd (or c,wer-a ilhocatcd) 1hrt1UrL1h L1t JIC i'cgif'ra. In most c..i cs. water 16r
a rl), newI3, irrigated acrc.alm� wvoukl ha vc to lac rc rrinved froni ai eag-.° o1scv,hcre. This only mikr°
'Wri c il` tl`:i li ud than tlw wvaWr- is liciraj_y inovV'd to is bcttc i- than :he land Wvhtre it is c:urrcntlt being
used I ht^r"c' 'Ire Substantial I c-hi[L^d ftP iil'tllllrrr+=c or moving w iil r rights, aid wwwt'Il aN costs for
i4 LIU,iring or nioditay' ng a3rlil ill'Ijryiition qidpn'icia- -C livsc co st:4 WV01,A41 M.A [IC jtlstll Cd 114r
.small -sr irregular shilped areas,
The Chiss V11 alnd VIIf wcslls LIOC R-Lentedi clli the Site Weill reailZiin Cliims Vill and V111 r4pirdless of
il`rigaition, Evve rl if %%ester '4Wrpre -available, the dispc rwad naittlre and VCIt
11L1IM' 5haipew Of tilt; t IMS VI
(F)A,,s:alrilp) soils niake thc irnstail rl'rc ri 0I' irriratiori ecltsillii;.s!lt iri-rpra(,ticall tier th lialiitecl addtcl
b7 !nt;lir irrigation would pit. vide. l llc° +:?r;fy poteillialC algl Icnliinal Ur t; wwout'd Lit, flor clrykind gratin,, of
native grasses (discus ed previousl);). 'I he linr.ited potential :ntial fbr the Sitc° clots not rc:present s.
Alffic_ient i,untiaer cal"A4 NTs for a coiiinitrc:ially vizalrlc livestock olacration,
ExEsti__�t .L nd Use Pattetin
fhl° itC. and parcel w die asi. lire zoned [Aclusive f?ainn Use 'f mina) lo-Re.tlmond-Bcnd (EFU TIt1I).
'I lit: palrc:cl ttl tht. twist Goll,"ists of 80 acres, is owned lwy. Deschutes C:'c,uratV, and is riot rrnl.F i ed file'
a,gricirI1t3r1) List.,'HIC ttia't:c?1.S, to ih,c; noril`i, . irld gonth ire -anal Nfidtipile L1se. AF,mcuttrlrnl 1 fl-
icre. Iltinirrittrlr � 10) ww°iiit co indicatia-m OfeuVTt•nt tir re.c wit aft, tc.ulttlrail aLtivity
Toghqar ogj;,1.t, t^jcf Fit rgy[� p-qt*_ qqired
I'Elere is nothing thtri ho,� becit revealed during the ;:omsi ot'th IS thtit WOUld Stlg�.est
there 14 klni tf cllnologic al or energy -related reason t.c; retatlll the subject property in an ngfi6 UIWrail
cl,r.s', luitrcisl"'I13G [ovi icrtility, cost Cif irrigation sy' te.ii s and other infr'astrc CEL11;u. M WC11Il4the
irrup2lar VA.terrt of pa (voti,.t'siy suitable gat<ti wake the wise oftlie Site for i:.urrirrierci it a igricr_rltl,tral
pn,.i uc:tion impra dieal wv rtrtprofitahle
Accepted Farming Practices
4till';.Gry tl'c: �tte lS 4i11-I'citincCecl by f7triGc; as, th'l° iirt_" not ti7iir?:aiL?r9i' for't°.17r1'ir114,'rCNii aiirni 6rtit^ iinCl t d9t'ti.
riot appear to fie. any I-ecent histury of f"rlriil ust;, the t'c- Z011ing of tWs lx c;el is not likely to represent
any significant increase in the potential f6r conflicts with accepted a,igriculttjral pracdcteas.
Applicant's legal counsel, Liz Dickson ("Dickson"), offered oral testimony and additional documents
at the Hearing. Dickson's additional documents were referenced, at the Hearing, as Exhibits 11, 12,
13 and 14. The focus of Dickson's Hearing testimony was upon the LUBA 710 Decision and LUBA's
analysis of the Suitability Factors. The Hearings Officer finds Dickson's testimony and accompanying
documentary submissions to be credible and persuasive.
Dickson, in her Hearing testimony, emphasized that the Subject Property soils are predominantly
class VII and VIII. Dickson stated the Applicant attempted to ascertain the level, if any, of historical
farming activity in the immediate vicinity of the Subject Property. Dickson indicated, based upon
Applicant's research, that the Subject Property has never been used for farm or agricultural
247-23-000210-PA & 247-23-000211-ZC Page 26 of 36
purposes. Dickson noted that the Subject Property has not been cleared and has no water
(irrigation rights).
Dickson testified that Applicant considered the Suitability Factors in the context of the LUBA 710
Decision. Dickson stated that Applicant considered adjacent / neighboring properties in relation to
all relevant Suitability Factors. Dickson stated, based upon Applicant's research, that adjacent/
neighboring properties are not used for commercial farming or "agricultural purposes." Dickson
stated that some nearby properties may conduct "hobby farm" activities but those activities were
subordinate to the primary residential use and are not conducted for the primary purpose of
obtaining a profit.
Dickson opined that the only possible "agricultural use" or farm use that might be considered
feasible at the Subject Property is "grazing." Dickson, referencing the Applicant Soil Study, stated
that the Subject Property standing alone, could not support commercial grazing. Dickson noted
that property adjacent to the north, west and south are developed for residential uses. Dickson
stated that combining the Subject Property with any of the adjacent properties would not result in
creating a profitable situation for grazing.
Dickson reiterated that the Subject Property does not possess any irrigation rights. Dickson stated
that existing land use patterns preclude the likelihood of combining the Subject Property with one
or more adjacent property for the purpose of creating a profitable agricultural or farm use.
Likewise, Dickson stated that the "accepted farming practices" Suitability Factor was not relevant to
the Subject Property as no farming occurs on the Subject Property or any adjacent property.
Dickson, relying upon Exhibits 11, 12, 13 and 14, demonstrated geographical and land use
differences between the property subject to the LUBA 710 Decision and the Subject Property.
Dickson noted that the property subject to the LUBA 710 Decision is located in an area where
agricultural/farm uses are prevalent. Dickson noted that ranches adjacent to or nearby the property
subject to the LUBA 710 Decision expressed the desire to combine to facilitate improved
agricultural/farm efficiency.
Dickson noted that the LUBA 710 Decision is under appeal and it is possible that the Oregon Court
of Appeals and/or Oregon Supreme Court could reverse or modify the LUBA 710 Decision. However,
despite the appellate status of the LUBA 710 Decision Dickson opined that there is evidence in the
record sufficient to meet the requirements of that decision.
The Hearings Officer finds Applicant addressed, with substantial evidence, the LUBA 710 Decision
Suitability Factors analysis. The Hearings Officer agrees with Staff and Applicant that there is
sufficient evidence in the record to conclude that the Subject Property does not qualify as
"agricultural land" as defined in OAR 660-033-0020.
(c) "Agricultural Land" does not include land within acknowledged urban growth
boundaries or land within acknowledged exception areas for Goal 3 or 4.
FINDING: This criterion is addressed above.
247-23-000210-PA & 247-23-000211-ZC Page 27 of 36
OAR 660-033-030 Identifying Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be inventoried
as agricultural land.
(2) When a jurisdiction determines the predominant soil capability classification of a
lot or parcel it need only look to the land within the lot or parcel being inventoried.
However, whether land is "suitable for farm use" requires an inquiry into factors
beyond the mere identification of scientific soil classifications. The factors are listed
in the definition of agricultural land set forth at OAR 660-033-0020(1)(a)(B). This
inquiry requires the consideration of conditions existing outside the lot or parcel
being inventoried. Even if a lot or parcel is not predominantly Class I -IV soils or
suitable for farm use, Goal 3 nonetheless defines as agricultural "Lands in other
classes which are necessary to permit farm practices to be undertaken on adjacent
or nearby lands." A determination that a lot or parcel is not agricultural land
requires findings supported by substantial evidence that addresses each of the
factors set forth in 660-033-0020(1).
FINDING: The Hearings Officer incorporates the Preliminary Findings as additional findings for this
criterion. The Hearings Officer Hearings Officer also incorporates as additional findings the findings
for OAR 660-033-0020 (1)(a)(A) & (B). The Hearings Officer finds that the Applicant addressed the
OAR 660-033-0020 (1)(a)(B) "Suitability Factors" in the Applicant Soil Study and in Applicant's Hearing
testimony in documentary submissions.
Staff provided (Staff Report, pages 22-24) additional discussion of the LUBA 710 Decision. "
":.. in a recent decision by the Land Use Board of Appeals (LUBA)6, LUBA remanded the Deschutes
County Board of County Commissioners decision to approve a post -acknowledgement plan
amendment and rezone application submitted by 710 Properties, LLC to change the designation
and zoning of the subject property from AG/EFU to RREAIRR-10 on 710 acres of property west of
Terrebonne and Redmond and north of Highway 126.
LUBA remanded the decision to "consider the ability to use the subject property for farm use in
conjunction with other property, including the Keystone property," and directed that the Board
"may not limit its review to the profitability of farm use of the subject property as an isolated unit."
LUBA further stated that the Board "must consider the ability to import feed for animals and may
not limit its consideration to the raising of animals where adequate food may be grown on the
subject property." LUBA continued that the Board "must also consider whether the subject
property is suitable for farm use as a site for construction and maintenance of farm equipment,"
and must "consider the evidence and adopt findings addressing the impacts of redesignation of
the property related to water, wastewater, and traffic and whether retaining the property's
agricultural designation is necessary to permit farm practices on adjacent or nearby lands."Each
of the remanded issues is listed separately below.
6 Central Oregon Landwatch, et al. v. Deschutes County and 710 Properties, LLC, et al. (LUBA No. 2023-009)
247-23-000210-PA & 247-23-000211-ZC Page 28 of 36
• LUBA's discussion at pages 36-37 sustained DLCD's second assignment of error and portions of
Redside's and Keystone's assignments of error based on a determination that the County did not
consider the ability to use the subject property with a primary purpose of obtaining a profit in
money in conjunction with other property. LUBA stated that "Relating the profitability of farm
related activity solely to the activity on the subject property places undue weight on profitability."
More discussion on this is found on pages 46-49 of the decision.
• 'Source of Feed"- this discussion is found at pages 37-42 of the decision. LUBA's decision states
that the County erred in construing OAR 660-033-0020(1)(a)(B) and ORS 215.203(2)(a) in
concluding that land is suitable for farm uses involving animals only if sufficient feed can
be grown on -site. LUBA stated that these authorities are silent as to the source of the feed that is
necessary to sustain animals involved in farm uses. It also noted that, in determining whether land
is suitable for dryland grazing, a farmer would have a reasonable expectation of obtaining a profit
in money from that activity, based on the factors listed in OAR 660-033-0020(1)(a)(B) (soil fertility,
suitability forgrazing, climactic conditions, availability of water for irrigation, etc.)
• "On -Site Construction and Maintenance of Equipment and Facilities" - this discussion is found at
pages 42-46 of the decision. LUBA determined that the County erroneously concluded that
this use need not be limited to supporting farm activities that occur on the subject
property. In other words, it does not matter where the equipment and facilities are used, whether
on or off -site. That said, after a consideration of whether equipment and facilities can be stored
onsite for the purpose of making a profit in money also requires a determination of the suitability
of the property based on the factors listed in OAR 660-033-0020(1)(a)(B).
• "Nearby and Adjacent Land"- discussion at pages 46-49 of the decision. LUBA directs the County
to make findings and conclusions on the question of whether the subject property is suitable for
farm use in conjunction with nearby or adjacent land. It noted that several farms and ranchers
testified they would not consider incorporating the subject property into their farm operations,
and that it "maybe that the subject property is not suitable for farm use even in conjunction
with nearby or adjacent land. However, the county did not reach that conclusion."
• DCC 18.136.020(C)(2) and DCCP Agricultural Lands Goal 1 - see pages 69-74 of the decision. The
County's findings that the impacts on surrounding land use from rezoning will be consistent with
DCCP Agricultural Lands Goal 1 are inadequate and not supported by substantial evidence. LUBA
states that the County only considered impacts on surrounding nonresource lands, and that it was
error to consider that the subject property is functionally separated from surrounding agricultural
lands due to its location on a plateau. LUBA remands for further consideration of water,
wastewater, traffic impacts on surrounding agricultural lands and the agricultural industry.
The Hearings Officer appreciates Staffs above -quoted analysis and perspective. The Hearings
Officer finds that Applicant, in its Burden of Proof, Applicant Soil Study and Dickson's Hearing
testimony and record submissions, provided evidence and argument relating to (1) the ability to use
the Subject Property with a primary purpose of obtaining a profit in money in conjunction with other
247-23-000210-PA & 247-23-000211-ZC Page 29 of 36
property, (2) the impacts of providing feed for grazing stock from outside properties, (3) the on -site
construction and maintenance of equipment and facilities to serve other properties, and (4) the off -
site impacts on resource and nonresource lands.
As summarized in the findings for OAR 660-033-0020 (1)(a)(B) above, the Subject Property has soils
that are not considered suitable for "agricultural use" and that the Subject Property is not and has
not been used for "agricultural uses." The OAR 660-033-0020 (1)(a)(B) findings indicated that the
adjacent or nearby properties are not used for "agricultural uses" or farm uses. The OAR 660-033-
0020 (1)(a)(B) findings indicate that combining the Subject Property with any adjacent or nearby
property would not improve the chances that the Subject Property, or any nearby or adjacent
property, could be operated for the primary purpose of obtaining a profit from agricultural or farm
related uses. Impacts on nearby properties is discussed elsewhere in this recommendation. The
Hearings Officer approval of Applicant's request would have minimal impacts, if any, on adjacent
properties. Rather, the Hearings Officer finds that the proposed change would more consistently
reflect the existing land use pattern in the area.
The Hearings Officer agrees with Staff and Applicant that there is sufficient evidence in the record
to conclude that the Subject Property does not qualify as "Agricultural Land" as defined in OAR 660-
033-0030.
(3) Goal 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 Hearings Officer incorporates the Preliminary Findings as additional findings for this
criterion. The Hearings Officer Hearings Officer also incorporates as additional findings the findings
for OAR 660-033-0020 (1)(a)(A) & (B). The Hearings Officer finds that the Applicant addressed the
OAR 660-033-0020 (1)(a)(B) "Suitability Factors" in the Applicant Soil Study and in Applicant's Hearing
testimony and Hearing documentary submissions.
The Hearings Officer finds, based upon the evidence and arguments in the record that the Subject
Property is not suitable for any identified "agricultural use" or farm use. Further, the Hearings
Officer finds that is not necessary to conduct any sort of "agricultural use" or farm use on the Subject
Property to facilitate or promote agricultural or farm practices to be undertaken on adjacent or
nearby lands. In this review the Hearings Officer has not assigned any significance to the ownership
of the Subject Property or adjoining properties.
(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
247-23-000210-PA & 247-23-000211-ZC Page 30 of 36
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 Hearings Officer incorporates the Preliminary Findings as additional findings for this
criterion. The submitted Applicant Soil Study provided more detailed soils information than
contained in the NRCS Web Soil Survey. NRCS sources provide general soils data for large units of
land. The Applicant Soil Study provided detailed and accurate information about a single property
based on numerous soil samples taken from the Subject Property. The Applicant Soil Study reports
data and conclusions consistent with the NCRS 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.
The Applicant Soil Study concluded that the Subject Property contains 65.4 percent Class 7 and 8
soils, based on site observations and examination of 111 test holes. The Applicant Soil Study is
accompanied in the record by correspondence from the DLCD . The DLCD correspondence confirms
that the Applicant Soil Study was completed and consistent with the reporting requirements for
agricultural soils capability as dictated by DLCD. Based on qualifications of the professionals
conducting the site work and report preparation, the Hearings Officer finds the submitted Applicant
Soil Study to be definitive and accurate in terms of site -specific soil information for the Subject
Property.
(c) This section and OAR 660-033-0045 apply to:
(A) A change to the designation of land planned and zoned for exclusive farm
use, forest use or mixed farm -forest use to a non=resource plan designation
and zone on the basis that such land is not agricultural land, and
FINDING: The Hearings Officer incorporates the Preliminary Findings as additional findings for this
criterion. The Hearings Officer Hearings Officer also incorporates as additional findings the findings
for OAR 660-033-0020 (1)(a)(A) & (B). The Hearings Officer finds that the Applicant addressed the
OAR 660-033-0020 (1)(a)(B) "Suitability Factors" in the Applicant Soil Study and in Applicant's Hearing
testimony and Hearing documentary submissions. The Hearings Officer finds the Subject Property
is not "agricultural land" as that phrase is defined within relevant Oregon law.
(d) This section and OAR 660-033-0045 implement ORS 215.211, effective on October 1,
2011. After this date, only those soils assessments certified by the department
under section (9) of this rule may be considered by local governments in land use
proceedings described in subsection (c) of this section. However, a local government
may consider soils assessments that have been completed and submitted prior to
October 1, 2011.
FINDING: The Applicant submitted the Applicant Soil Study which was prepared by Michael Sowers
and Brian Rabe of Cascade Earth Sciences and dated December 11, 2020. The Applicant Soil Study
was submitted following the ORS 215.211 effective date. The Applicant submitted to the record an
247-23-000210-PA & 247-23-000211-ZC Page 31 of 36
acknowledgement from Hilary Foote, Farm and Forest Specialist with the DLCD, dated April 12, 2021,
that the Applicant Soil Study is complete and consistent with DLCD's reporting requirements. The
Hearings Officer finds this criterion to be met based on the submitted Applicant Soil Study and
confirmation of completeness and consistency from DLCD.
(e) This section and OAR 660-033-0045 authorize a person to obtain additional
information for use in the determination of whether land qualifies as agricultural
land, but do not otherwise affect the process by which a county determines whether
land qualifies as agricultural land as defined by Goal 3 and OAR 660-033-0020.
FINDING: The Applicant has obtained additional information regarding soils and how these soils
relate to the agricultural designation of the Subject Property. The Applicant has also submitted
DLCD's certification of its soils analysis, attached as part of Exhibit 4, and has complied with the soils
analysis requirements of OAR 660-033-0045 in order to obtain that certification. DLCD's certification
establishes compliance with OAR 660-033-0045.
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,
(e) Degrade the performance of an existing or planned transportation
facility such that it would not meet the performance standards
identified in the TSP or comprehensive plan; or
247-23-000210-PA & 247-23-000211-ZC Page 32 of 36
(C) Degrade the performance of an existing or planned transportation
facility that is otherwise projected to not meet the performance
standards identified in the TSP or comprehensive plan.
FINDING: This above language is applicable to the proposal because it involves an amendment to
an acknowledged comprehensive plan. The proposed plan amendment would change the
designation of the Subject Property from AG to RREA and change the zone from EFU to MUA-10.
The Applicant is not proposing any land use development of the properties at this time.
As referenced in the agency comments section in the Basic Findings section above, the Senior
Transportation Planner for Deschutes County requested additional information to clarify the
conclusions provided in the Transportation Planning Rule (TPR) analysis prepared by Joe Bessman,
PE of Transight Consulting, LLC, dated March 17, 2023. The Applicant submitted an updated report
and responses to issues raised also from Mr. Bessman, dated June 27, 2023, to address the
additional information that was requested.
Staff noted (Staff Report, page 26) that the original application included a subdivision proposal in
addition to the comprehensive plan and zone change proposal that is subject to this
recommendation. Applicant has decoupled the subdivision proposal from the comprehensive plan
amendment and zone change applications. The Hearings Officer notes that traffic impact studies
take into account requirements for a subdivision in addition to the plan amendment and zone
change.
In response to the revisions noted above, the County Senior Transportation Planner stated, "These
updated materials and the application materials in [the] record satisfy the County's requirements and no
further materials or analysis are required from the applicant." As such, the Hearings Officer finds that
the proposed plan amendment and zone change will be consistent with the identified function,
capacity, and performance standards of the County's transportation facilities in the area.
DIVISION 15, STATEWIDE PLANNING GOALS AND GUIDELINES
OAR 660-015 Division 15, Statewide Planning Goals and Guidelines
FINDING: The Statewide Planning Goals are outlined below in the Applicant's Burden of Proof:
"Goal 1, Citizen Involvement. This proposal satisfies this goal because the Planning Division will
provide notice of the proposed plan amendment and zone change to the public through individual
notice to affected property owners, posting of the Subject Property with a notice of proposed land
use action sign, online notice of the application on the County's website, and publishing notice of
the public hearing in the "Bend Bulletin" newspaper. In addition, at least two public hearings will
be held on the proposed plan amendment before it can be approved - one before the Hearings
Officer and one before the Deschutes County Board of Commissioners.
Goal 2, Land Use Planning. This proposal satisfies this goal because the applications were
handled pursuant to the procedures applicable to plan amendments and zone changes in the
247-23-000210-PA & 247-23-000211-ZC Page 33 of 36
County's Comprehensive Plan and Zoning Ordinance. An exception to Goal 3 is not required
because site soils have been conclusively determined to be not Agricultural as that term is legally
defined.
Goal 3, Agricultural Lands. The Applicant is not required to take an exception to Goal 3 for the
Subject Property, but rather to provide evidence supporting response that the Subject Property
does not constitute "agricultural land" as legally defined in Goal 3 and supporting administrative
rules. The application includes a professionally prepared Soils Analysis (Exhibit 4) that proves the
Subject Property does not constitute "agricultural land" and therefore the proposed plan
amendment to Rural Residential Exception Area and zone change to MUA-10 is consistent with Goal
3.
Goal 4, Forest Lands. The proposal is consistent with Goal 4 because the Subject Property is not
zoned for forest use and the Applicant's soil survey shows the Subject Property does not contain
any forest soils or related resources.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The proposal is
consistent with Goal 5 because the site is not identified as containing scenic, historic, or natural
resource areas. It is not unique as open space in the area and has not been designated as
significant for that purpose. It is reasonable to conclude that the proposed plan amendment and
zone change will have no effect on any designated Goal 5 resources.
Goal 6, Air, Water and Land Resources Quality. The proposal is consistent with Goal 6 because
it will not result in any legally significant detrimental impact on air or water quality and land
resources.
Goal 7, Areas Subject to Natural Disasters and Hazards. Goal 7 is not applicable to the
proposal because the Subject Property is not located in a known natural disaster or hazard area
(i.e., flood hazard zone, steep slopes, historic landslide areas or other hazards identified under
Goal 7).
Goal 8, Recreational Needs. Goal 8 is not applicable to the proposal because the proposal will
not affect property zoned for recreation or impact recreational needs.
Goal 9, Economy of the State. The proposal is consistent with Goal 9 because it will not adversely
impact legally identified economic activities in the state. It may have a minimal impact on the
construction industry eventually when the four homesites are developed, but these have not been
recognized as significant for purposes of evaluating goal impacts.
Goal 10, Housing. Goal 10 is not directly applicable to the proposal because it does not include
development of additional housing. The proposal does not remove any land from the county's
supply of land for needed housing. The proposal supports a potential, though not certain, eventual
transition to development of four homes on the respective parcels. Applicant plans to develop the
four created sites for rural residential homes in the future.
247-23-000210-PA & 247-23-000211-ZC Page 34 of 36
Goal 11, Public Facilities and Services. The proposal is consistent with Goal 11 because the
proposed plan amendment and zone change will have minimal impact upon the provision of
public facilities and services to the Subject Property. Avion Water is already available to the site in
Hunnell Road, power is available and sufficient, and Hunnell Road is scheduled for paving,
widening, and straightening in 2023 already by the County. These facilities will not be strained by
the addition of four lots made possible by the Plan Amendment and Zone Change.
Goal 12, Transportation. The proposal is consistent with the TPR, and therefore is also consistent
with Goal 12 as demonstrated by the attached, professionally prepared Transportation Analysis,
See Exhibit S.
Goal 13, Energy Conservation. The proposal is consistent with this goal because it will have no
legally significant impact on energy use or conservation. Southern exposure and spacing of the
four proposed lots will allow solar power development if desired. Rezoning the Subject Property
from EFU to MUA-10 will allow future dwellings to be developed on the site, which will be
advantageous to the water supply, since the proposed change makes it less likely that the tracts
will be irrigated with surface water, where such irrigation would not be productive considering the
poor qualify of the soils. Current irrigation practices commonly use electricity for pumping of water
for distribution. This wasteful use would be made less likely by approval of this proposal.
Goal 14, Urbanization. The proposal is consistent with Goal 14 for the following reasons:
1. The proposal supports a likely, though not certain, eventual transition from rural to urban
land use that responds to identified needed lands as the Bend UGB expands north 7600 feet,
2. The proposal represents an orderlygrowth pattern that eventually will efficiently utilize public
facilities and services, including the 2023 improvements to Hunnell Road;
3. The proposal will ultimately result in the maximum efficiency of land uses on the fringe of the
existing urban area;
4. The Subject Property has been found to be not predominantly agricultural land as defined in
OAR 660-033-0020; and
5. The proposal will promote compatibility with surrounding rural residential uses and will not
adversely impact any nearby commercial agricultural uses because there are none.
Goals 15 through 19. These goals, which address river, ocean, and estuarine resources, are not
applicable to the proposal because the Subject Property is not located in or adjacent to any such
areas or resources."
The Hearings Officer incorporates the Preliminary Findings as additional findings for this criterion.
The Hearings Officer Hearings Officer also incorporates as additional findings the findings for OAR
660-033-0020 (1)(a)(A) & (B). The Hearings Officer finds that the Applicant addressed the OAR 660-
033-0020 (1)(a)(B) "Suitability Factors" in Applicant's Soil Study and in Applicant's Hearing testimony
and Hearing documentary submissions.
The Hearings Officer, based upon Applicant's above -quoted responses and the incorporated
findings, concludes that Applicant's proposal complies with the applicable Statewide Planning Goals.
247-23-000210-PA & 247-23-000211-ZC Page 35 of 36
The Hearings Officer finds the overall proposal appears to comply with the applicable Statewide
Planning Goals for the purposes of this review.
IV. CONCLUSION & RECOMMENDATION:
The Hearings Officer finds that the Applicant has met the burden of proof necessary to justify
changing the Plan Designation from Agriculture to Rural Residential Exception Area and Zoning of
the Subject Property from Exclusive Farm Use to Multiple Use Agricultural 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.
DESCHUTES COUNTY HEARINGS OFFICER
yt"ar7 za'lla
Gregory J. Frank, Hearings Officer
247-23-000210-PA & 247-23-000211-ZC Page 36 of 36
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NOTICE OF HEARINGS OFFICER'S RECOMMENDATION
The Deschutes County Hearings Officer has recommended approval of the land use application(s)
described below:
FILE NUMBER: 247-23-000210-PA, 247-23-000211-ZC
LOCATION: Map and Taxlot: 1612330000800
Situs Address: 64430 Hunnell Rd, Bend, OR 97703
OWNER: Groves Family Revocable Trust
APPLICANT: Michael F. Groves and Cathie L. Groves
SUBJECT: The Applicant requested approval of a Comprehensive Plan Map
Amendment to change the designation of the Subject Property from
Agricultural (''AG") to a Rural Residential Exception Area ("RREA"). The
Applicant also requests approval of a corresponding Zoning Map
Amendment (Zone Change) to change the zoning of the Subject
Property from Exclusive Farm Use ("EFU") to Multiple Use Agricultural
("M UA-10").
STAFF CONTACT: Jacob Ripper, Principal Planner
Jacob. Ripper@deschutes.org
541-385-1759
RECORD: Record items can be viewed and downloaded from:
www.buildingoermits.oregon.eov and
APPLICABLE CRITERIA:
Deschutes County Code, Title 18, County Zoning Ordinance
Chapter 18.04, Title, Purpose, and Definitions
Chapter 18.16, Exclusive Farm Use Zones
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q, (541) 388-6575 @cdd@deschutes.org @ www.deschutes.org/cd
Chapter 18.32, Multiple Use Agricultural Zone
Chapter 18.136, Amendments
Deschutes County Code, Title 22, 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 6, Forest Lands
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 33, Agricultural Land
Oregon Revised Statutes (ORS)
Chapter 215.211, Agricultural Land, Detailed Soils Assessment.
DECISION: The Hearings Officer finds that the application meets applicable criteria, and
recommended approval to the Board of County Commissioners.
This decision becomes final twelve (12) days after the date mailed, unless appealed by a party
of interest. To appeal, it is necessary to submit a Notice of Appeal, the base appeal deposit plus
20% of the original application fee(s), and a statement raising any issue relied upon for appeal with
sufficient specificity to afford the Board of County Commissioners an adequate opportunity to
respond to and resolve each issue.
Copies of the decision, application, all documents and evidence submitted by or on behalf of the
applicant and applicable criteria are available for inspection at no cost. Copies can be purchased
for 25 cents per page.
NOTICE TO MORTGAGEE, LIEN HOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF
YOU RECEIVE THIS NOTICE, IT MUST BE PROMPTLY FORWARDED TO THE PURCHASER.
247-23-000210-PA, 211-ZC Page 2 of 2
File Nos 247-23-000210-PA, 211-ZC
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BOARD OF
o
COMMISSIONERS
MEETING DATE: December 13, 2023
SUBJECT: Long Range Planning - Work Plan Update
BACKGROUND AND POLICY IMPLICATIONS:
The adopted Community Development Department (CDD) FY 2023-24 Work Plan contains
several discretionary long range planning projects varying in complexity. This agenda item
will summarize upcoming work plan projects and ask for any comments and revisions from
the Board of County Commissioners (Board). The purpose is to ensure that the Planning
Division, which has emerging capacity following completion (or near completion) of prior
projects, implements the Board's priorities within available resources.
BUDGET IMPACTS:
None
ATTENDANCE:
Will Groves, Planning Manager
Peter Gutowsky, CDD Director
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Will Groves, Planning Manager
Peter Gutowsky, AICP, Director
DATE: December 4, 2023
SUBJECT: Planning Division Work Plan Update / Long Range Planning / FY 2023-2024
WORK PLAN DIRECTION
The adopted Community Development Department (CDD) FY 2023-24 Work Plan contains several
discretionary long range planning projects varying in complexity.' This memorandum summarizes
upcoming work plan projects and asks for any comments and revisions from the Board of County
Commissioners (Board). The purpose is to ensure that the Planning Division, which has emerging capacity
following completion (or near completion) of prior projects, implements the Board's priorities within
available resources.2
Tables 1-3, starting on page 2, list projects that are completed, ongoing, and yet to be initiated. Staff
requests the Board assign priority to Work Plan projects for the remainder of the fiscal year. Three are
listed below for consideration:
Initiate clear and objective standards for housing (HB 3197).
Scope Newberry Country Plan or Terrebonne Community Plan for initiation in FY 2024-25.
Initiate legislative amendments.
II. BACKGROUND
Each spring, CDD prepares an annual work plan describing proposed projects for the coming fiscal year.
A review of the draft work plan enables the Planning Commission, County Administration, CDD's
customers, partner agencies, and the Board the opportunity to provide input, including additions,
modifications, and possible re -prioritization. The work plan describes the most important projects in each
CDD division based on:
' https://www.deschutes.org/sites/defa u lt/f i les/f i leattach ments/com rn unity development/page/18781/2023-
24 work plan annual report.pdf. Pages 35-38.
z The Tumalo Community Plan Update and Transportation System Plan Update will be completed in January or February 2024. The
Comprehensive Plan Update is anticipated to be completed in March or April 2024.
1. Board annual goals and policies;
2. Carry-over projects from current or prior years;
3. Changes in state law;
4. Grants/funding sources; and
5. Public comments.
It also serves as the context within which new projects that arise during the fiscal year are prioritized and
undertaken. The Planning Division Work Plan consistently generates public interest.
III. COMPLETED LONG RANGE PLANNING PROJECTS
Table 1 lists completed long range planning projects identified in the FY 2023-24 work plan.
Table 1 - Completed Long Range Planning Projects
Project
Summary
Status
Conventional
Staff -initiated amendment clarifying that the siting of
Completed. The Board adopted an
Housing
prefabricated structures in residential zones are treated
ordinance repealing the
Combining
similarly with traditional single-family homes or other
Conventional Housing Combining
Zone
common dwelling types.
Zone on August 23.
Amendment
Applicant -initiated amendment to add language from
Destination
Oregon Revised Statute (ORS) 197.455(1)(a), limiting
Completed. The Board declined to
Resort Text
residential uses to those necessary for the staff and
consider the amendment on August
management of the resort at any new Destination Resort
9'
Amendment
allowed within 24 air miles of an urban growth boundary
population of at least 100,000.
Completed. The Board adopted an
Historic
Staff -initiated amendment suspending the Historic
ordinance on November 29.
Landmarks
Landmarks Commission and for review authority to be
Applications for the HLC have been
Commission
vested with the Planning Division.
received and a selection process is
Amendment
forthcoming.
Nonresource
Applicant -initiated Plan Amendment and Zone Change
Completed. The Board approved two
Land
applications to change Exclusive Farm Use (EFU) zoning.
applications, adopting ordinances on
Amendments
August 30 and September 13.
Petition for
Incorporation
Completed. The Board adopted an
(City of
Petitioner -initiated to establish a city near Millican,
order declining the petition on
Mountain
September 28.
View)
Staff -initiated amendment. Senate Bill 391 and SB 644
Rural
Accessory
adopted into law in 2021 and 2023 authorize a county to
Completed. The Board adopted an
Dwelling Unit
allow an owner of a lot or parcel within a rural residential
ordinance on November 1.
zone to construct one Accessory Dwelling Unit subject to
Amendment
certain restrictions and limitations.
Short Term
Staff produced a summary of opportunities and
Completed. Staff presented a white
Rentals
challenges associated with residential short-term rentals.
paper to the Board on September 18.
-2-
Project
Summary
Status
Staff -initiated amendment clarifying Title 15, Buildings &
Wildfire
f
Construction, Section 15.04,085 prohibits wooden -shake
Completed. The Board adopted an
Hazard Zone
roofing for newly constructed rural residences and
ordinance on September 13.
Amendment
residential accessory structures.
Wildlife
Staff -initiated amendment adding a new mule deer
Completed. The Board declined to
Inventory
winter range inventory from the Oregon Department of
consider the amendments on June
Fish and Wildfire to the County's Goal 5 protected
26
Update
resources.
Conventional
Housing
Staff -initiated amendment to comply with Oregon House
p y g
Completed. The Board adopted an
Combining
Bill 4064 which limited jurisdictions' ability to prohibit
ordinance on August 23.
manufactured prefabricated homes in residential zones.
Zone Repeal
IV. ONGOING LONG RANGE PLANNING PROJECTS
Staff is currently processing or coordinating several long range land use projects.
Table 2 — Ongoing Planning Projects
Project
Summary
Comments
Ongoing. A Hearings Officer hearing
was held on October 2 to consider an
applicant -initiated amendment to
modify County Code to allow for an air
traffic control tower at the Bend
Airport. Decision pending. The Board
declined to hold a second hearing on
City of Bend
Coordinate with City of Bend on growth management
November 29. First an second reading
Coordination
issues.
are forthcoming.
A Hearings Officer hearing for HB 3318
was held on October 11 to consider an
applicant -initiated amendment to
expand Bend's urban growth
boundary for the Stevens Road Tract
consisting of 261 acres. Second
Reading completed November 29.
Participate with Property Management and the City of
La Pine to update and amend the County owned
City of La Pine
Newberry Neighborhood comprehensive plan
Ongoing, Staff is coordinating with the
Coordination
designations, master plan and implementing
Property Manager.
regulation. Coordinate with City of La Pine's
comprehensive planning efforts.
Ongoing. A Hearings Officer has
City of
Coordinate with City of Redmond on growth
recommended approval of the
Redmond
Redmond Airport Master Plan and
Coordination
management issues.
Airport Safety Combining Zone. Board
hearing dates to be scheduled shortly.
-3-
Project
Summary
Comments
Ongoing. The Planning Commission
Staff -initiated amendment to its Comprehensive Plan.
held two public hearings on October
Comprehensive
This update provides overarching policy guidance on
26 and November 9. A third hearing is
Plan Update
land use and planning related issues for the years
scheduled for December 14.
(2040)
2020-2040. A draft has been released for public review.
Deliberations and recommendations
to the Board are anticipated in
February 2024.
o Destination Resort Overnight Lodging Unit Annual
Ongoing. Staff coordinates with
Coordination
Reporting
relevant stakeholders for these tasks
Projects
o Marijuana Annual Reporting / Inspections
and reports news, updates, and
o Portland State University (PSU) Annual Population
results to the Board annually.
Estimate
Ongoing. The Minor Partition
application was approved on October
13and the County decision was final
on October 25.
CORE
Applicant -initiated urban growth boundary
The supporting Plan Amendment and
(Regional
amendment for a 300-acre regional emergency
Zone Change applications were
Emergency
training center in Redmond.
deemed incomplete on July 28. Staff is
Training Center)
awaiting an incomplete response from
the applicant. These applications will
require public hearings. An initial
hearing date and time is to be
determined.
Ongoing. Staff is preparing a summary
Revisiting the County's existing Outdoor Lighting
report of steering committee
Dark Skies
ordinance.
comments and recommendations for
the Board's consideration.
Coordinate and/or participate on Deschutes County
Bicycle and Pedestrian Committee (BPAC), Project
Ongoing. These meetings occur
Growth
Wildfire, and Deschutes County Mitigation and
monthly except for the Mitigation and
Management
Enhancement Committee. BPAC is involved in the
Enhancement Committee, which is
Committees
County's Transportation System (TSP) Plan Update, and
annual.
Sisters Country Expansion Concept Plan.
Ongoing. Coordination with
Legislative
Participate in legislative or rulemaking work groups to
Administration, Board, and
Association of Oregon Counties occurs
Session
shape state laws to benefit Deschutes County.
in the fall and into the short and
regular legislative sessions.
Multiple Use
Applicant -initiated amendment to allow storage units
Ongoing. Deschutes County has a
Agricultural
in the Multiple Use Agricultural 10 zone as a permitted
long-standing policy to timely process
Text
use subject to site plan review.
applicant -initiated text amendments.
Amendment
W
Project
Summary
Comments
Ongoing. Deschutes County has a
Applicant -initiated Plan Amendment and Zone Change
long-standing policy to timely process
Nonresource
applications to change Exclusive Farm Use (EFU)
applicant -initiated plan amendment,
Land
zoning. Staff is processing four applications. Two are
zone changes. These plan
Amendments
incomplete and two received a public hearing before
amendments and zone changes
Hearings Officers in mid -November.
require significant resources and are
becoming increasingly common.
Staff -initiated amendments based on Senate Bill 1013
Recreational
authorizing counties to allow an owner of a lot or
Ongoing. The Planning Commission
Vehicles as
parcel in a rural area to site on the property one
held a public hearing on November 9.
Rental Unit
recreational vehicle that is used for residential
A second hearing will occur on
Amendments
purposes and is subject to a residential rental
December 14.
agreement and additional criteria.
Road Naming
Process Road Naming requests associated with certain
Ongoing.
types of development on a semi-annual basis.
Participate as a cooperating agency with the Bureau of
Ongoing' Staff will continue to
Sage Grouse
Land Management (BLM) to evaluate alternative
represent the County at multi -agency
Coordination
management approaches to contribute to the
coordination meetings as part of the
conservation of sagebrush habitats on federal lands.
BLM's Greater Sage Grouse planning
process.
Staff -initiated plan and text amendments to update the
2010-2030 Deschutes County Transportation System
Plan (TSP) and accompanying map to 2040. The 2020-
Ongoing. The Board held a public
Transportation
2040 TSP provides new traffic volumes and prioritizes
hearing on November 29 with a one -
System Plan
improvement projects including but not limited to:
week open record period. Board
2020-2040
motor vehicles, bicycles, and pedestrians; new goals
deliberation will follow.
and policies; and resetting the functional
reclassifications of selected County roads.
Staff -initiated plan and text amendments to the
Tumalo Community Plan (TCP) to reflect a 20-year
Tumalo
Period from 2020-2040. The TCP provides a guide for
Ongoing. The Board will hold a public
Community
development, capital improvements, and land use
hearing on December 6.
Plan Update
planning specific to the area within and surrounding
the Tumalo Unincorporated Community.
Certain properties in rural Deschutes County will be
subject to new wildfire mitigation measures as
Ongoing. Staff in coordination with the
approved under Senate Bill (SB) 762 and ultimately
County Forester is monitoring and will
Wildfire
amended pursuant to SB 80.One of the primary pieces
provide regular updates to the Board
Mitigation
of SB 762 and SB 80 is the creation of a comprehensive
when the draft State Wildfire Hazard
Statewide Wildfire Hazard Map to guide new wildfire
Map is released for public input.
regulations for development.
V. PROJECTS NOT YET INITIATED
Table 3 lists long range planning projects that have not been initiated. It recognizes staffing resource
requirements for each project. They range from "minor" to "significant" as noted below:
A "minor" rating (2 to 6 months)
-5-
A "moderate" rating (4 to 8 months)
A "significant" rating (6 to 12 months)
Table 3 - Non -initiated Long Range Planning Projects
Project
Summary
County Resources
Initiate amendments in coordination with consultants funded through a
Clear and
Department of Land Conservation Development grant. The Oregon
Legislature recently enacted HB 3197 into law. It requires counties to adopt
Object
and apply clear and objective standards, conditions, and procedures
Significant
Standards for
regulating housing in unincorporated communities, Rural Residential
Housing
Exception Areas, and nonresource lands. it has a two-year effective date of
July 1, 2025
Newberry
County Plan
Develop a scope of work to update the Newberry Country Plan. Public
Significant
engagement could kick-off in summer 2024.
Update
Terrebonne
Community
Develop a scope of work to update the Terrebonne Community Plan. Public
Significant
engagement could kick-off in summer 2024.
Plan Update
• Minor variance 10% lot area rule for farm and forest zoned properties.
Minor
(Attachment A)
• Outdoor Mass Gatherings update. (Attachment B)
Moderate
• Lot Line Adjustments and Re -platting. (Attachment C)
Moderate
• Sign code to become consistent with federal law. (Attachment D)
Moderate
Zoning
0 Accessory structure amendments clarifying they must be built
Amendments3
concurrent with or after the establishment of a primary residence.
Moderate
Specify allowed facilities (baths, cook tops, wet bar) in residential
accessory structures. (Attachment E)
• Section 6409(a) of the Spectrum Act. (Attachment F)
Minor
• Define family for unrelated persons HB 2538, Non -familial Individuals.
Moderate
(Attachment G)
• Allow "self -serve" farm stands in Rural residential Exception Areas.
Minor
(Attachment H)
• Comply with House Bill 3109 (2021) pertaining to establishment of
Minor
childcare facilities in industrial zones. (Attachment 1)
• Medical Hardship Dwellings —review for consistency with state law.
Minor
(Attachment J)
• Title 19, 20, 21—Language related to Class I, 11, and III road projects as
Minor
allowed uses. (Attachment K)
• Title 22—Procedures Ordinance for consistency with state law and
Minor
planning department interpretations. (Attachment L)
• Wetland Regulation Clarification for Irrigation or Artificially Created
Significant
Wetlands. (Attachment M)
• Improve internal and statutory consistency for Forest Zoning Code
Moderate
(Attachment N)
VI. BOARD DIRECTION
Staff seeks Board direction on the priority of the following projects:
3 Detailed descriptions of Zoning Amendment projects are provided as attachments to this memo, as noted.
-6-
• Initiate clear and objective standards for housing (HB 3197).
• Scope Terrebonne or Newberry Country Plan for initiation in FY 2024-25.
• Initiate legislative amendments.
Given the level of interest in the work plan, the Board may decide to provide direction to CDD at a
subsequent meeting.
Attachments
A. Minor Variance /10% Lot Area Rule
B. Outdoor Mass Gathering Update
C. Lot Line Adjustment and Replatting
D. Sign Code
E. Accessory Structures
F. Spectrum Act / Section 6409(a)
G. Family Definition for Unrelated Persons (HB 2538)
H. Self -serve Farm Stands
I. Childcare Facilities
J. Medical Hardship Dwellings
K. Title 19, 20, 21 and Road Projects
L. Procedures Ordinance and Interpretations
M. Wetland Regulation Clarification
N. Forest Zoning Code Update
M
Attachment A- Minor variance 10% lot area rule for farm and forest zoned properties
BACKGROUND & OVERVIEW
Lot line adjustments have been used to circumvent lot -area -based development standards both
under local code and state statute. In 1991, County Code was amended (Ord. 91-038) to limit area
reduction of lots that are currently smaller than the minimum lot size (to a maximum reduction of
ten percent) without a more complicated variance review process.
In the past two decades, state statute (ORS 92.192) has been updated to include protections for lot -
area -based standards that are more robust and nuanced than the County Code provision. Currently
both the state and county protections apply. However, because the County provisions are more of
a "blunt instrument", they cause unexpected problems for operators of large farms. Specifically,
because the minimum lot size for most farm -zoned properties is 80 acres, the transfer of sub-80
acre pieces between neighboring farm operations is needlessly complicated by County Code.
CURRENT PROCESS & CHANGES
Potential text amendments would remove the conflict between DCC and ORS by changing DCC
18.132.025 to exclude farm and forest zone properties from the County's ten -percent reduction
limitation.
Key Amendment Concerns
Staff Effort/Resources
Medium/Low
Legal Complexity
Low
Implementation Urgency
Medium/Low
Attachment B - Outdoor Mass Gathering - Revise County Code to Reflect Changes in State
Statute
BACKGROUND & OVERVIEW
Multi -day festivals have long been held in Oregon and multi -day music festivals became especially
popular in Deschutes County in the mid-2000s. Between 2013 and 2022, the County processed 12
Outdoor Mass Gathering (OMG)' applications including Board Hearings on the dozen applications.
Many of these applications were for the Four Peaks Music Festival. Issues for the OMG permits
ranged from noise to traffic to incompatibility with adjacent land uses. The applicable review and
approval criteria for Outdoor Mass Gatherings (OMG) are found in Deschutes County Code (DCC)
8.16 (Events, Parades, Funeral Processions, and Outdoor Mass Gatherings) specifically DCC 8.16.010
and DCC 8.16.150 through 8.16.340. This code language must be consistent with state statute,
specifically Oregon Revised Statute (ORS) 433.735 to 433.770 (Regulation of Outdoor Mass
Gatherings)
Concerns about the effects of OMGs as well as a patchwork approach in statute to outdoor events
eventually led the Legislature to approve HB 2790 (2019) to modify Oregon Revised Statute (ORS)
433.735 to ORS 4.33.770. Previously, OMGs were regulated only for health and safety under ORS
433.750 and were not land use decisions under ORS 197.015(10)(d). HB 2790 made local review of
a permit for a single gathering of more than 3,000 people and lasting more than 120 hours into a
land use decision.
OMGs that are not a land use decision, but regulated by health and safety regulations only:
• Events of less than 3,000 people lasting up to 120 hours
• Events of more than 3,000 people, but lasting less than 24 hours
• Events of more than 3,000 people lasting up to 120 hours
CURRENT PROCESS & CHANGES
Under DCC 8.16.170(A), the County requires permits for OMGs and Extended OMGs with public
hearings before the Board for OMGs and the Planning Commission for Extended OMGs. Under HB
1 Defined in ORS 433.375(2) as a gathering in an open space with actual or reasonably anticipated attendance of more than
3,000 people and lasting between 24 and 120 hours and occurs once within a three-month period. DCC 8.16.010 defines an
OMG sets actual or expected attendance of between 500 and 3,000 people and last for between more than 4 and less than
24 hours. DCC 8.16.010 defines an Extended OMG as attendance expected of more than 3,000 people or more than 500
persons for an event that last more than 240 hours, including set-up and breakdown.
2790, an application for an OMG becomes a land use decision - thus following the requirements of
Title 22 - and the decision can be made administratively or before a hearings officer, and is
appealable to the Board and ultimately the Land Use Board of Appeals (LUBA). Changes would need
to be made to DCC 8.16 to reflect changes in definitions and processes.
Key Amendment Concerns
Staff Effort/Resources
Medium
Legal Complexity
Low
Implementation Urgency
Low
Page 2 of 2
COMMUNITY DEVELOPMENT
Attachment C - Replatting and Property Line Adjustment Amendments
BACKGROUND & OVERVIEW
Property owners have two primary options for adjusting the boundaries of properties created
through subdivisions or partitions:
1. Replats
2. Property line adjustments/consolidations
Simple lot line adjustments involving a single property line are adequately regulated under statute
(ORS 92.192). Significant reconfiguration of partitions and subdivisions are regulated under
replatting standards, which are more comprehensive and take into account how reconfiguration of
properties might affect surrounding roads, emergency access, and infrastructure capacity.
However, the Deschutes County Code contains ambiguous language defining when applicants
should utilize replatting standards versus property line adjustments and property line
consolidations.
CURRENT PROCESS & CHANGES
As noted by the by the Deschutes County Road Department, under current county code, the
potential exists for an applicant to apply for a series of property line adjustments to convert
adjoining undevelopable properties into developable properties without any consideration for
transportation infrastructure impacts. This potential is particularly present in undeveloped portions
of subdivisions platted prior to the statewide land use program. Notable examples include portions
of the Hillman, Millican, Centralo, and Laidlaw townsite plats. While the Road Department does not
have specific recommendations to correct these issues, they outline the following possibilities:
• Property line adjustments that would reconfigure existing adjoining undevelopable units of
platted land into a certain number of developable units of land shall be processed as a replat.
• Property line adjustments that would allow for development that is not subject to site plan
review with the potential to generate a certain number of weekday PM peak -hour trips shall
be processed as a replat.
Code amendments to address these issues would allow a more clear understanding of the
thresholds for applying replatting standards versus more simplified property line adjustment
standards. While generally uncommon, staff has encountered high profile applications wherein
definitional clarity between these two application types would have avoided additional legal or
consultant fees for the applicant while also addressing the impact concerns of the Road and
Community Development Departments.
Key Amendment Concerns
Staff Effort/Resources
Medium
Legal Complexity
Medium
Implementation Urgency
Medium
Page 2 of 2
Attachment D - Simon Code Amendments
BACKGROUND & OVERVIEW
Currently, Deschutes County Code includes limitations on signs based on their content. In Reed v.
Town of Gilbert (2015), the U.S. Supreme Court found a content -based sign ordinance may impede
on an applicant's First Amendment right to Freedom of Speech based on the content of a given sign.
Building on Reed, the Court reviewed a separate sign code -based case under City ofAustin v. Reagan
National Advertising of Austin (2022). In Austin, the U.S. Supreme Court found that certain sign code
provisions (such as requiring advertising signs to be placed on the premises of the entity being
advertised) can be considered content -neutral under the right to Freedom of Speech under the First
Amendment of the U.S. Constitution.
Deschutes County currently implements its Sign Code through Deschutes County Code Title 15.08.
Reed implies that Deschutes County should ensure that their Sign Code provisions are "content -
neutral" or else be subject to "strict scrutiny" under the First Amendment. Austin implies that not all
provisions of a given sign code are automatically "content -based" and, therefore, some sign code
provisions are subject to "intermediate scrutiny" rather than "strict scrutiny" under the First
Amendment. In Austin, the U.S. Supreme Court found that, in order to survive intermediate scrutiny,
a restriction on speech or expression must be "narrowly tailored to serve a significant government
interest".
CURRENT PROCESS & CHANGES
Revisions to the Sign Code could ultimately bring Title 15.08 into compliance with Federal case law
and interpretations around sign content and Freedom of Speech included in Reed (2015) and Austin
(2022). Staff foresees working closely with County Legal Counsel to review the existing Sign Code,
ensuring that content -based provisions are designed to be content -neutral.
Key Amendment Concerns
Staff Effort/Resources
Medium/High
Legal Complexity
Medium/High
Implementation Urgency
Medium
Attachment E - Accessory Structure Amendments
BACKGROUND & OVERVIEW
The County regularly receives requests for residential accessory buildings with many of the features
of dwelling units (e.g. kitchen -like areas, multiple full -baths, wet bars). Despite careful
communication with developers, these residential accessory buildings are often converted to illegal
dwelling units or are misrepresented as ADUs to subsequent buyers of the property.
The Deschutes County Code (DCC) lacks provisions common in other Counties' code such as:
1) Specification of allowed plumbing and other dwelling -like features permissible in
residential accessory buildings,
2) A requirement for a recording to the property title, alerting future buyers that the
residential accessory building is not an ADU, or
3) A requirement that that the dwelling (primary use) must be constructed first (or at the
same time) as residential accessory buildings.
CURRENT PROCESS & CHANGES
The Board has expressed interest in creating clarity within the County Code around these potentially
ambiguous provisions. As one example, the City of Bend currently utilizes a code system that
provides specific definitions of certain improvement types, and clear standards of when and where
these improvements are allowed. City of Bend also provides accessory structure -related code
language, clearly specifying that primary uses must be established prior to accessory structures.
Revisions to County Code related to residential accessory buildings could offer more clarity for
residential property owners looking to develop and could help with the differentiation between
primary and accessory structures.
Key Amendment Concerns
Staff Effort/Resources
Medium
Legal Complexity
Medium
Implementation Urgency
Medium/High
Attachment F - Spectrum Act - Wireless Telecommunication Amendments
BACKGROUND & OVERVIEW
On February 22, 2012, the Middle Class Tax Relief and job Creation Act of 2012 became law. Section
6409(a) of the act, also known as the Spectrum Act, was intended to advance wireless broadband
service for public safety and commercial purposes and to provide for the creation of a broadband
communications network for first responders. Along with Section 704 of the Telecommunications
Act of 1996 (Public Law 104-104), the Spectrum Act can be viewed as part of the ongoing effort by
the wireless industry to achieve federal preemption over local telecommunications zoning
regulations. As such, Deschutes County (along with many other State and local governments) must
alter existing telecommunication regulations which do not align with certain aspects of the
Spectrum Act.
The Spectrum Act and corresponding Federal Communications Commission (FCC) rulings outline
the following standards:
• Applies to collocations, removals, or modification of equipment on wireless towers or base
stations;
• Mandates that a State or local government "may not deny, and shall approve" any application
covered by section 6409(a);
• Does not apply to collocation on a structure that is not a wireless tower or base station; and
• Does not apply if action substantially changes the physical dimensions of a tower or base
station.
Regarding the process for reviewing an application under Section 6409(a), the FCC also provides
that:
A State or local government may only require applicants to provide documentation that
is reasonably related to determining whether the eligible facilities request meets the
requirements of Section 6409(a);
A state or local government must approve an application covered by Section 6409(a)
within 60 days from the date of filing, subject to tolling; the running of the period may be
tolled by mutual agreement or upon notice that an application is incomplete, but not by
a moratorium (an incomplete notice must be provided according with the same
deadlines and requirements applicable under Section 704 of the Telecommunications
Act of 1996, codified as 47 U.S.C. § 332(c)(7)); and
An application filed under Section 6409(a) is deemed granted if a State or local
government fails to act on it within the requisite time period;
In the summary, Section 6409(a) restricts local land use review of modifications and collocations by
establishing a "substantial change" test as the primary eligibility determinant for review exemptions
afforded by the Spectrum Act and reduces the application processing "shot clock" from 90 days to
60 days.
CURRENT PROCESS & CHANGES
Deschutes County Code (DCC) Section 18.116.250 contains provisions which directly contradict the
standards of the Spectrum Act described above. However, the Community Development
Department (CDD) currently evaluates and approves applications for non -substantial changes to
physical portions of existing wireless telecommunication facilities (such as collocations of
infrastructure) pursuant to the standards of Section 6409(a).
However, code amendments would allow a more seamless understanding of the Spectrum Act
approval standards for both staff and applicants by codified the Spectrum Act standards in formal
Deschutes County documents and ordinances. Any proposed amendments would ultimately
include an objective set of standards for what constitutes "substantial changes" to existing wireless
telecommunication facilities.
Key Amendment Concerns
Staff Effort/Resources
Medium/Low
Legal Complexity
Medium
implementation Urgency
Medium/Low
Page 2 of 2
Attachment G - Amend County Code to define family for unrelated persons, Non -familial
Individuals (HB 2583)
BACKGROUND & OVERVIEW
Until the passage of House Bill 2583 in 2021, local law in Oregon dictated residential occupancy
limits based on "family" or "related" persons, essentially limiting how many unrelated people could
share a home, regardless of dwelling type, size, or ownership status. This restriction served to
unnecessarily limit housing choices —a particular pressure point in the current housing crisis.
HB 2583 now precludes the "family" clause from single-family occupancy requirements, stating:
"A maximum occupancy limit may not be established or enforced by any local government,
as defined in ORS 197.015, for any residential dwelling unit, as defined in ORS 90.100, if the
restriction is based on the familial or nonfamilial relationships among any occupants."
CURRENT PROCESS & CHANGES
Deschutes County Code (DCC) Section 18.04.030, Definitions, currently defines "family" as:
"an individual or two or more persons related by blood, marriage, legal adoption, or legal
guardianship living together as one housekeeping unit using a common kitchen and
providing meals or lodging to not more than three additional unrelated persons, excluding
servants, or a group of not more than five unrelated persons living together as one
housekeeping unit using a common kitchen."
This allows a total of five people if the residents are unrelated, but an undetermined number if the
dwelling houses a family (which could be any size) as well as three unrelated persons.
Staff is investigating how other Oregon Counties have approached House Bill 2583. Clackamas
County, for example, allows a total of 15 persons, regardless of relationship.
Utilizing a flat occupancy rate (like Clackamas County) means that a small home would have the
same occupancy limit as a large home, which seems relatively illogical and could result in
overcrowding of smaller dwellings as well as overloading of septic systems. Relating occupancy to
number of bedrooms appears reasonable in that the occupancy limits would relate to the size of
the dwelling. However, this could also lead to complications with respect to what is considered a
bedroom. Often, rooms are used as bedrooms by residents even if they do not meet the definition
in the building code with respect to windows, egress, and size.
This amendment would require choosing a policy direction for a preferred definition as it relates to
occupancy.
Key Amendment Concerns
Staff Effort/Resources
Medium/Low
Legal Complexity
Low
Implementation Urgency
Medium/Low
Page 2 of 2
Attachment H - Self Service Farm Stands
BACKGROUND & OVERVIEW
"Self -Service" farm stands are starting to pop up in commercial areas (Tumalo, outside of Redmond)
and rights of way. It could be valuable to streamline requirements for certain farm stands with
limited impacts to support agriculture while reducing impacts to farmlands and residential uses. A
simple permitting process could allow for the uses while controlling for health/safety issues. A main
concern from the Oregon Department of Agriculture (ODA) is ensuring these don't end up being the
neighborhood grocery store.
CURRENT PROCESS & CHANGES
Under Board direction and with public outreach and input, Staff would explore implementing
regulations.
Key Amendment Concerns
Staff Effort/Resources
Low
Legal Complexity
Low
Implementation Urgency
Medium
Attachment I - Childcare Facilities In Industrial Zones
BACKGROUND & OVERVIEW
State statute, under HB 3109 (2021), established that childcare centers are permitted use in all
commercial or industrial zoned areas. Local code updates would be required to implement this
standard.
CURRENT PROCESS & CHANGES
Under Board direction and with public outreach and input, Staff would explore updating local code
relating to childcare facilities in industrial zones.
Key Amendment Concerns
Staff Effort/Resources
Low
Legal Complexity
Low
Implementation Urgency
Medium
Attachment J - Medical Hardship Code Update
BACKGROUND & OVERVIEW
Under state law, a county may allow a temporary residence, in addition to an existing residence, for
the term of the hardship suffered by the existing resident or relative. Deschutes County implements
this locally in DCC 18.116.090 for all zones and DCC 18.16.050(H) for the farm zone, and DCC 18.36
and 18.40 for the forest zones.
There are some important differences between the resource zone (farm and forest) state
implementation and the local rules that apply to these uses. For example:
• Temporary residences can include existing structures in state code, in addition to
recreational vehicles and manufactured homes. Locally, existing structures are currently
only allowed to be used as hardship dwellings in resource zones.
• Under state code, a "hardship" includes "hardship for the care of an aged or infirm person
or persons", which is not expressly allowed locally.
• Local code recognizes hardships suffered by a property owner or relative off the property
owner. State code more broadly recognizes hardships suffered by residents or their
relatives.
• Local code required that a "medical condition exists". State code specifies that there must
be a "medical hardship".
• Local code requires annual review. State code allowed review of these approvals to
occurs every two years.
• State code specifies, "A manufactured dwelling shall use the same subsurface sewage
disposal system used by the existing dwelling, if that disposal system is adequate to
accommodate the additional dwelling."
Staff notes that these differences are allowed under the state code and that any changes to
synchronize state and local codes is not compelled and would be a local choice.
CURRENT PROCESS & CHANGES
Under Board direction and with public outreach and input, Staff would explore updating the Medical
Hardship Code.
Key Amendment Concerns
Staff Effort/Resources
Low
Legal Complexity
Low
Implementation Urgency
Medium
Page 2 of 2
■
Attachment K - Titles 19-21, Road and Street Projects Update
BACKGROUND & OVERVIEW
Deschutes County Code (DCC) Title 18,04.030 (Definitions) describes the various land use activities
allowed in various County zones. For transportation projects, these are defined in 18.04.030 as
either Class I, Class II, or Class III road and street projects with Class I and Class 11 requiring land use
permits while Class III does not. As growth occurs in the County's urban areas, State highway, County
roads, and City streets require either improvements or entirely new facilities. County lands that
border urban areas are governed under Title 19 (Bend), Title 20 (Redmond) or Title 21 (Sisters) and
there is no similar title for La Pine. While the Purpose statements in these three titles do mention
transportation or congestion, they offer no definitions or criteria or processes to follow.
The issues Titles 19-21 do not list road or street project as either outright permitted uses or
conditional uses. While Title 18 broadly defines road and street projects to include facilities for cars,
bicycles, pedestrians, etc., there is no such language in Title 19A.01.020 (Permitted and Conditional
Uses); Title 20.12.020 (Outright Permitted Uses) and 20.12.030 (Conditional Uses); and 21.16.020
(Outright Permitted Uses) and 21.16.030 (Conditional Uses). From a strict land use development
code perspective, if a use is not listed in the relevant title, the use cannot occur. Thus, on County -
zoned lands on the peripheries of Bend, Redmond, Sisters, and La Pine, it is currently unclear how
road or street projects can be built.
The solution would be text amendments to Titles 19-21 and import the road and street projects
language from Title 18, specifically the definitions found in DCC 18.04.030.
CURRENT PROCESS & CHANGES
Under Board direction and with public outreach and input, Staff would explore updating Titles 19-
21 and import the road and street projects language from Title 18.
Key Amendment Concerns
Staff Effort/Resources
Low
Legal Complexity
Low
Implementation Urgency
High
Attachment L - Procedures Ordinance for consistency with state law and planning
department interpretations
BACKGROUND & OVERVIEW
Comments submitted into land use records sometimes include a mailing address, others only
include an email address. County code currently specifies:
22.28.020, Notice Of Decision
Notice of a Hearings Body's decision shall be in writing and mailed to all parties; however,
one person may be designated by the Hearings Body to be the recipient of the notice of
decision for a group, organization, group of petitioners or similar collection of individual
participants.
The language in the Code is broad enough that it could include email. Most times, if regular mail is
directed/required, it would say: by United States First Class mail, postage pre -paid. That said,
22.28.020 was originally adopted in 1982, repealed and reenacted in 1990 and then amended in
2016.One can presume that in the 1980s and 1990s, the Board would not have considered "mailed"
to include anything other than regular U.S. mail. Therefore, the question of legislative intent cannot
be discerned. This is a matter that should be officially clarified in Code.
CURRENT PROCESS & CHANGES
Under Board direction and with public outreach and input, Staff would explore updating the
Procedures Ordinance for consistency with state law and planning department interpretations.
Key Amendment Concerns
Staff Effort/Resources
Low
Legal Complexity
Low
Implementation Urgency
Medium
Attachment M - Wetland Regulation Clarification for Irrigation or Artificially Created
Wetlands
BACKGROUND & OVERVIEW
Tumalo Irrigation District has identified a number of operational concerns regarding County
Wetland regulations. Specifically:
• Many of the irrigation canals and ponds, and in some instances formerly flood irrigated
fields, within the County have been included in.the various national, state, and local wetlands
inventories.
• County code generally requires permitting for any fill/removal in wetlands, as opposed to
DSL regulations that generally leave fill/removal under 50 cubic yards unregulated.
• Exceptions are provided for irrigation districts in local code, but irrigation district patrons do
not have similar exceptions for on -property management of irrigation facilities.
• Existing regulation can complicate and increase the cost of irrigation piping projects
Regulatory changes may be able to simply/clarify rules relating to these operations. Specifically,
local implementation of Oregon Administrative Rule (OAR) 141-085 may be useful. For example:
141-085-0530, Exemptions for Certain Activities and Structures
141-085-0535, Exemptions Specific to Agricultural Activities
CURRENT PROCESS & CHANGES
Under Board direction and with public outreach and input, Staff would explore updating wetland
regulations to clarify for irrigation or artificially created wetlands
Key Amendment Concerns
Staff Effort/Resources
High
Legal Complexity
Medium
Implementation Urgency
Medium
Attachment N - Forest Zone Code Update
BACKGROUND & OVERVIEW
Uses and regulations for Forest zoned properties come from ORS 215 and OAR 660, Division 4.
These are implemented locally in DCC 18.36 and 18.40.
Over time, internal references and code connections in these chapters have not been kept up to
date. More importantly, uses have been added to state code that have not been implemented
locally, including:
• Dump truck parking as provided in ORS 215.311
• An agricultural building, as defined in ORS 455.315, customarily provided in conjunction with
farm use or forest use.
• Relative Forestry Help Second Dwelling
In addition, a number of existing use categories have new or changed provisions.
CURRENT PROCESS & CHANGES
Under Board direction and with public outreach and input, Staff would explore updating the Title
18 code relating to forest uses.
Key Amendment Concerns
Staff Effort/Resources
Medium
Legal Complexity
Medium
Implementation Urgency
Medium
Brenda Fritsvold
From: Nick Lelack
Sent: Monday, December 11, 2023 5:15 PM
Cc: Erik Kropp; Judge Wells Ashby; Deevy Holcomb; Brenda Fritsvold
Subject: RE: Criminal Justice Commission Victim's Services Award - update and inquiry
Commissioners:
Since we have a couple of LPSCC members supporting a protest and the deadline to do so in next week, we will raise this
during Other Items at your meeting this Wednesday, Dec. 13.
I will print this email also put it in your mailbox.
40 tES p Nick LelackI County Administrator (He/Him)
I SE.. eeU FL i r 4r .Viii'
Tel: (541) 388-6565
Mobile: (541) 640-6911
From: Deevy Holcomb <Deevy.Holcomb@deschutes.org>
Sent: Thursday, December 7, 2023 10:40 AM
Cc: Erik Kropp <Erik.Kropp@deschutes.org>; Judge Wells Ashby <wells.b.ashby@ojd.state.or.us>; Nick Lelack
<Nick.Lelack@deschutes.org>
Subject: Criminal Justice Commission Victim's Services Award - update and inquiry
Bcc: BOCC
Good morning,
On 11/29 the Criminal Justice Commission (CJC) met to review counties' Formula and Competitive JRI Grant applications.
Deschutes was awarded our full Formula award, and approximately $250K per year for this biennium for the
Competitive award (not all that we had applied for, but a good amount, so great news)!
If you recall, 10% of all JRI funding is allocated to approved victim services agencies. Our application included five
LPSCC/county recommended applicants for funding at different levels based on their overall proposal score - KIDS
Center, Saving Grace, CASA, AT Project and In Our Backyard). CJC declined to award any funding to the In Our Backyard
program; indicating that they are providing prevention services, not victim services. There is limited time and process to
protest this decision (see below).
Two of the four LPSCC subcommittee members who made the initial recommendation would like to consider a protest;
I've not yet heard from the other two members of that review panel. We have not approached the entire LPSCC for their
feedback, but Judge Ashby and Nick are interested in whether any of the BOCC would like to pursue a protest.
As a note, our local/LPSCC review panel had scored In Our Backyard the lowest of all the agencies who had applied for
funding. I have attached the specific program description that In Our Backyard provided as part of their application for
funding, as well as their budget. In this they describe two sets of activities for which they are requesting funding. One is
for adult survivors of trafficking, which seems pretty clearly victim's services. The other is for prevention with young
people using a Life Skills training, which seems pretty clearly prevention services. My assessment of our chances in a
protest are that we would be successful only if we protested that portion of the program serving adults/victims. If we
wanted to do that, we would need to ask In Our Backyard to provide a revised budget request just for the adult/victim
portion.
Please let me know your thoughts ASAP. Should you wish to protest this decision, we have until December 20th.
Protest procedures are below; I or my staff can take care of the procedural tasks involved, including whether/how to
involve the entire LPSCC as courtesy or requirement.
CJC 1R1 3.1 Award Protests
An applicant may protest an award decision if the applicant is able to articulate specific reasons the application review
or award processes were in error based on applicable law, rule, or specific language in the grant solicitation. The
affected applicant shall have fourteen (14) business days from the date of the award notification to file a written
protest. Protests must meet all the following requirements:
• Delivered to CJC via email or hard copy; o Email: cjc grantscjc.oreon.Bov o US Mail: Criminal Justice Commission,
885 Summer St. NE, Salem, OR 97301
• Reference the specific grant solicitation by name;
• Identify the applicant's name and contact information;
• Signed by an authorized representative; and
• Specify the reasons for the protest.
CJC will aim to address all timely submitted protests with 45 days and issue a written decision to the affected applicant.
Thank you,
Deevy Holcomb I Director
(she/her))
Tel. (541) 322-7644 1 Fax. (541) 383-0165
Do the best you can until you know better. Then when you know better, do better- Maya Angelou
NOTICE: This e-mail may contain confidential or privileged information. If this e-mail contains confidential
information you are legally required to preserve confidentiality. If you are not the intended recipient, please
advise by return e-mail and delete immediately without reading or forwarding to others.
Please print this email only if there is a real business need.
FIRST AMENDMENT TO
OREGON JUDICIAL DEPARTMENT
INTERGOVERNMENTAL AGREEMENT
OJD Contract No. 220084
This Amendment No. 1 to the to the Courthouse Improvement Intergovernmental Agreement, OJD
Contract Number 220084, is entered into by and between the Oregon Judicial Department ("OJD") and
Deschutes County ("County"). OJD and County are each a "Party" and collectively "Parties."
RECITALS
A. On June 30, 2023, the Parties entered into Courthouse Improvement Intergovernmental
Agreement, OJD Contract Number 220084 ("Original Agreement") to facilitate the renovation
and expansion of the Courthouse located at: 1100 NW Bond Street, Bend, Oregon ("Project").
The Original Agreement and this Amendment No. 1 are collectively referred to as the
"Agreement".
B. At this time, the Parties desire to amend the terms of the Original Agreement to allow OJD to
provide an additional $15,000,000.00 in funding for the Project ("Additional Project Funds"), as
more particularly set forth in this Amendment.
AGREEMENT
In consideration of the above Recitals which are incorporated in this Amendment and for other good
and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as
follows:
1. The Recitals are contractual and are incorporated into the substantive provisions of this Agreement.
2. Subsections 3.a. to 3.e. of the Original Agreement are deleted in their entirety and replaced with the
following ten subsections:
"a. In consideration of the terms and conditions herein, OJD agrees to the transfer to County
pursuant to this Agreement, a total sum of $17,000,000 in Project Funds, which is comprised of
$16,500,000 for Building Funds and $500,000 for FFE Funds, appropriated to OJD by Or. Laws
(2022), Ch. 110, s. 293 and Or. Laws (2023), Ch. 605, s. 277.
b. OJD has completed the transfer to County pursuant to the Original Agreement, atotal of
$2,000,000 in Project Funds, which comprised of $1,500,000 for Building Funds and $500,000 for
FFE Funds.
c. OJD agrees to transfer to County an amount of $15,000,000 in Building Funds within 14 days of
OJD's receipt of the documents described in subsection b of Section4.
d. County agrees to refrain from spending any of the Project Funds until after the County finalizes
the Construction Documents and has provided the Deschutes County Circuit Court Presiding Judge
and the TCAwith reasonable time in which to review the Construction Documents and offer written
comments and suggestions forfurther consideration by the County. Thereafter, the Construction
Documents will become the Final Construction Documents. County shall promptly provide the TCA
copies of each of the Final Construction Pocuments.
e. County agrees to refrain fr94 spending any of the Additional Project Funds until after the County
has obtained TCA's written approval of the Construction Documents. County shall finalize the
Construction Documents and provide the Deschutes County Circuit Court Presiding Judge and the
AMENDMENT 1 TO INTERGOVERNMENTAL AGREEMENT OJD CONTRACT NO. 220084 Page 1 of 4
TCA with reasonable time in which to review the Construction Documents and offer written
comments and suggestions for further consideration by the County. Thereafter, the Construction
Documents will become the Final Construction Documents. County shall promptly provide the TCA
copies of each of the Final Construction Documents.
f. County agrees to use the Building Funds solely for expenditures related to the completion of the
Building Work identified in the Scope of Work.
g. County agrees to use the FFE funds solely for the FIFE Work.
h. OJD understands that County is funding its portion of the project through the issuance of tax-
exempt obligations and that in order to do so, the County intends to identify the OJD Contribution as
"qualified equity" for purposes of Section 1.141-6[(b)(3)] of the Federal Tax Regulations. OJD does
not object to County's above identification subject to County indemnifying and holding State, OJD,
and their officials and employees harmless from and against all actions, claims, losses, damages,
liabilities, penalties, costs and expenses of any nature whatsoever resulting from, arising out of, or
relating to County's identification. County's obligations to indemnify and hold State, OJD, and their
officials and employees harmless under this section are subject to the limitations in Article XI,
Section 10 of the Oregon Constitution, and the Oregon Tort Claims Act.
i. Building Work means County procurement of services and materials, including but not limited to:
making the Courthouse entrance more accessible, relocate Hearing Room, revision and separation
of interior pathways in the existing courthouse to accommodate separation of public, staff, judicial
personnel, and in custody traffic, and an expansion and upgrade of the security checkpoint at the
main Courthouse lobby entrance.
County shall construct a 50,933 square foot addition to the existing Deschutes County Courthouse
located at 1100 NW Bond Street in Bend, Oregon. The addition consists of a basement and three
upper levels based on the Permit Set of drawings prepared by LRS Architects dated September 08,
2023, which are incorporated in this agreement by this reference. The basement totals 12,102
square feet and contains 13 parking spaces for judges and staff with a secure vehicle entrance from
Harriman Street and dedicated staff elevator. Additionally, the basement contains an in -custody
vehicle sally port sized for two inmate transport vans. The basement also includes holding cells,
dedicated in -custody elevator, secure attorney client visitation and public lobby with elevator.
The 1 st floor totals 14,741 square feet and consists of an expanded main lobby entrance, public
elevator, public service counters, public restrooms, and court administrative space. Administrative
space will include five private offices, conference room, staff breakroom, restrooms and dedicated
staff elevator. The 1 st floor remodel consists of an expanded court security office, court
administrative offices and Hearing Room.
The 2nd floor totals 12,045 square feet and consists of a public lobby and two full-size
courtrooms. It includes public restrooms and three meeting rooms. The courtrooms share secure
holding cells and in -custody elevator. Staff support areas include ajury deliberation room, three
judges chambers with private restrooms, and judicial assistant office space.
The third floor will be unfinished "shell" space. It is designed to accommodate two future
courtrooms identical to the 2nd floor and totals 12,045 square feet. It includes a second public
elevator shaft to accommodate future completion of the third floor.
The scope of the Project is also set forth in Exhibit B of the Original Agreement and the Deschutes
County Courthouse Expansion Permit Set 9.20.23, incorporated herein by reference.
j. County acknowledges that part of OJD's contributions will be used towards the construction of
AMENDMENT 1 TO INTERGOVERNMENTAL AGREEMENT OJD CONTRACT NO. 220084 Page 2 of 4
ytt`NF
the third floor of the Project. Co my acknowledges and agrees that when the thi d-floo space is
finished and is considered read for occupancy, OJD has the right to occupy th t space at no
additional charge to OJD. If the hird-floor space is occupied by a party other t an OJD, at any time
OJD in its sole discretion may quest to occupy and use the third -floor space. OJD shall give
County a written notice (email ceptable) of its intent, and the County shall make the third -floor
space available to OJD within months of receipt of OJD's notice. County acknowledges and
agrees that any non-OJD use of the third -floor space of the Project must be compatible with Circuit
Courts, its operations, Uniform Trial Court Rules, and Supplementary Local Rules."
3. The first sentence of Subsection 4.f. of the Original Agreement is deleted in its entirety and replaced
with the following:
1, Except if additional state funds become available for the Project Building Work, County shall
contribute all additional funds, beyond the $16,500,000.00 of Building Funds transferred pursuant to
this Agreement, that are necessary to complete the Project."
4. Subsection 4J. of the Original Agreement is deleted in its entirety and replaced with the following:
1. If OJD terminates this Agreement for its convenience, or)4he costs related to Building Work are
less than $16,500,000.00, or in the event the Project is not✓completed in a timely manner by June
30, 2026 through no fault of County, County shall return to OJD any unexpended funds transferred
pursuant to this Agreement by not later than one month after termination of the Project or
completion of the Project, whichever is earlier."
5. The second sentence of Subsection 4.m. of the Original Agreement is deleted in its entirety and
replaced with the following:
"Within 30 days of Project completion, County shall provide OJD with proof that Project work
performed in compliance with the OJD Minimum Security Standards as set forth in Exhibit C and
allow OJD inspection of the security components if requested by OJD."
6. Subsections 5.a. to 5.c. of the Original Agreement are deleted in their entirety and replaced with the
following five subsections:
"'a. OJD has completed the transfer to County pursuant to the Original Agreement, atotal of
$2,000,000 in Project Funds, which comprised of $1,500,000 for Building Funds and $500,000 for
FFE Funds.
b. Within 14 days of the date of Amendment No. 1 being executed, OJD will make a one-time
transfer of the Additional Project Funds from the OJD General Fund to County in the amount of
$15,000,000.00.OJD shall not be responsible or liable for any additional funds that may be required
to complete the Project Building Work.
c. OJD shall not be responsible for any aspect of the procurement process, contract award, or
contract administration associated with the Project.
d. OJD shall not own the improvements resulting from this Project or be responsible for any
obligations or costs associated with ongoing maintenance or repairs or fulfillment of County's
responsibilities under ORS 1.165.
e. OJD shall be the sole owner of all OJD FFE resulting from the FFE Work portion of the Project.
Further, once title to the OJD FFE passes to OJD, OJD shall be responsible for all obligations and
costs associated with ongoing maintenance, repairs, or replacement of the OJD FFE portion of the
Project."
AMENDMENT 1 TO INTERGOVERNMENTAL AGREEMENT OJD CONTRACT NO. 220084 Page 3 of 4
7. All other representations and warranties of each Party in the Agreement are confirmed by such
Party to be true and correct as of the date of signature below.
8. Except as provided in this Amendment No. 1, all other terms and conditions of the Agreement shall
remain in full force and effect.
9. This Amendment No. 1 may be executed via electronic signature and in counterparts, each of which
will be considered an original and all of which togetherwill constitute one and the same agreement.
Oregon Judicial Department Deschutes County
By:
Name:
Title:
Date
OJD Legal Approval:
Name: M rcus Swift
Date: 12/11 /2023
By:
Name:
Title:
Date
AMENDMENT 1 TO INTERGOVERNMENTAL AGREEMENT OJD CONTRACT NO. 220084 Page 4 of 4
Brenda Fritsvold
From: Nick Lelack
Sent: Wednesday, December 13, 2023 9:01 AM
To: Brenda Fritsvold; Kim Riley
Subject: FW: BOCC Other Items: Courthouse Expansion IGA - First Amendment
Attachments: 20231212080700.pdf
ITE,-S Nick Lelack I County Administrator (He/Him)
�$ C,s a�.> [' E.1 4 i, .l 0 t.} i"v' A,s {.�i i�l s t R, n r \
"� . 1, i✓
Tel: (541) 388-6565
Mobile: (541) 640-6911
From: Nick Lelack
Sent: Tuesday, December 12, 2023 9:58 AM
Cc: David Doyle <David.Doyle@deschutes.org>; Lee Randall <Lee.Randall@deschutes.org>; Whitney Hale
<Whitney.Hale@deschutes.org>; Erik Kropp <Erik.Kropp@deschutes.org>; Robert Tintle <Robert.Tintle@deschutes.org>
Subject: BOCC Other Items: Courthouse Expansion IGA - First Amendment
Commissioners:
We will discuss this under Other Items tomorrow (12/13) as we need to move forward with securing the state funds for
the Courthouse expansion. While I have concerns about OJD's requirements for use of the third floor as drafted in the
agreement in this proposed section:
j. County acknowledges that part of OJD's contributions will be used towards the construction
of the third floor of the Project. County acknowledges and agrees that when the third -floor
space is finished and is considered ready for occupancy, OJD has the right to occupy that
space at no additional charge to OJD. If the third -floor space is occupied by a party other than
OJD, at any time OJD in its sole discretion may request to occupy and use the third -floor
space. OJD shall give County a written notice (email acceptable) of its intent, and the County
shall make the third -floor space available to OJD within 3 months of receipt of OJD's notice.
County acknowledges and agrees that any non-OJD use of the third -floor space of the Project
must be compatible with Circuit Courts, its operations, Uniform Trial Court Rules, and
Supplementary Local Rules
I understand that we may not have much choice in agreeing to some version of it per Legal's coordination with the state
last week. I appreciate Dave's proposed redlined revisions in the attachment to give the County more time (9 months
rather than 3 months) to make the third floor available for OJD's use and to specify that it is only for courtroom
purposes.
My concerns stem from our hopes and efforts to consider other uses for the third floor to either assist with our debt
service on the building or to potentially provide space for compatible County -related uses. However, it appears the
strings attached to accepting the $15 million are rather significant.
'?I F C0 Nick LelaekI County Administrator (He/Him)
3 Tel: (541) 388-6565
Mobile: (541) 640-6911
BOARO OF COUNTY COVOMISS�110NERS
December 6, 2023
RE: TIFIA Loan Program Adjustment Request for Redmond Airport
Dear Senators Ron Wyden and Jeff Merkley, Congressman Cliff Bentz, and Congresswoman Lori Chavez-
DeRemer,
The Redmond Municipal Airport is Central Oregon's only commercial airport. The airport has
experienced rapid growth in passengers as well as increase in routes and carriers and is currently
completing the final design of a $150 million - $200 million expansion of the airport terminal. With a
projected 1.2 million passenger flow in 2024, this expansion is essential to meeting the needs of the
region. The project is expected to break ground in 2024.
Part of the funding plan is the pursuit of a Federal Transportation Infrastructure Finance and Innovation
Act (TIFIA) loan, which is supported by our partners at the FAA. The initial cost estimate for the
expansion was around $100 million, however, the most recent estimates now exceed $100 million,
which makes the project ineligible for the Rural Project Initiative (RPI) portion of the TIFIA program.
TIFIA has a $100 million cap for rural communities such as Redmond.
Our understanding is the $100 million cap for RPI was established in 2018. Since then, the expansion
project has seen an unprecedented increase in construction costs both regionally and nationally. Our
specific request is for the threshold to increase to $200 million. This would allow Redmond to use RPI
which allows for the ability to include public amenities such as an expanded baggage claim area and
curb -side pick-up / drop-off. These additions would also include increased ADA capabilities and energy
conservation improvements.
We urge members of Congress to re -visit the $100 million RPI cap in light of recent changes to
construction costs and/or to make an exemption for the Redmond Airport Terminal Expansion project
and other rural airports which are different in nature than traditional TIFIA funded projects (i.e. Roads
and Highways). Thank you for your consideration.
The Deschutes County Board of Commissioners
Anthony DeBone Patti Adair Phil Chang
Chair Vice Chair Commissioner
1300 NW Wall Street Bend, Oregon 97703
(541) 388 6572 board@deschutes.org @ www.deschutes.org
Background
Oregon has long benefitted from a highly functioning wildfire
suppression system. A cornerstone of our success has been a strong
partnership between landowners and the Oregon Department of
Forestry (ODF). In recent years, however, the catastrophic impacts of
wildfire have increasingly impacted public health and safety,
community wellbeing, and the economy across Oregon.
At the same time landowners within ODF protection districts paying
for wildfire protection have seen dramatic increases in base fire
protection per -acre rates (over 40% from last biennium in some areas
of the state) that have pushed the system to a breaking point.
To address these issues and provide a firm foundation for continued
success going forward, Oregon's funding system needs to be stable,
sustainable, and equitable. Right now, it struggles to be any of those
things.
Over the interim, Senator Steiner convened a diverse workgroup of
landowners to develop a more effective funding system. The proposed
system creates more transparency, while providing for stable and
equitable financing of wildfire suppression, which is a public service
that benefits all Oregonians. This workgroup will continue into the
2025 session to steward the transition of wildfire funding.
Financing
ODF-protected landowners: The proposal indexes existing
landowner assessments (Minimum Lot Assessment, Improved Lot
Surcharge and Harvest Tax) according to CPI going forward and
applies the inflation rate back to 2007 (most recent adjustment date).
All landowners: To reflect the all -Oregon nature of the problems
created by wildfire, the proposal assesses all property accounts a flat
$10 fee, which produces $20M annually in revenues to contribute to
Oregon's increasing wildfire protection costs across the state.
Benefits
Establishing a statewide fee recognizes that all Oregonians benefit
from a robust wildfire protection system. Realigning Oregon's wildfire
protection funding system results in a more sustainable per acre
assessment rate, making the system more affordable for all
landowners. Affordability enables continued long-term participation
in Oregon's wildfire protection system and maintenance of
ownership, reducing pressure to sell for alternative uses such as
permanent development. Stabilizing Oregon's wildfire protection
system funding allows ODF to maintain their ability to respond to
wildfire. This, in turn, reduces the frequency of catastrophic impacts
of wildfire on public health and safety, community wellbeing, and the
economy overall.
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Property ownership within 9 ODF forest protection districts and 3 forest protective
associations (Includes private rate avg: $1.50/acre. Does not include — Forest Products Harvest Tax,
property tax, income tax, local structural fire protection district assessments)
• 1/10th to approximately 18-acre lot, without improvement - $37.55 / current structure is
$18.75
o Minimum lot surcharge - $27.55 / indexed from current charge of $18.75
o Statewide property account - 10
• 1/101h to approximately 18-acre lot, with improvement — $107.35 / current structure is
$66.25
o Minimum lot surcharge - $27.55 / indexed from current charge of $18.75
o Statewide property account - 10
o Improved lot surcharge - $69.80 / indexed from current charge of $47.50
• 100-acre lot, without improvement - 160 / current structure is $239 (uses average
statewide rate)
o Private rate avg - 150
o Statewide property account - 10
• 100-acre lot, with improvement - $229.80 / Current $286.50
o Private rate avg - 150
o Statewide property account - 10
o Improved lot surcharge - $69.80 / indexed from current charge of $47.50
• 1000-acre lot, without improvement - $1,510 / current $2,390
o Private rate avg - J1,M
o Statewide property account - 10
• 1000-acre lot, with improvement - $1,579.80 / current $2,437.50
o Private rate avg - 1 500
o Statewide property account - 10
o Improved lot surcharge - $69.80 / indexed from current charge of $47.50
Properties outside 9 ODF forest protection districts and 3 forest protective associations: $10