2024-121-Order No. 2024-013 Recorded 5/3/2024REVIEWED
Recorded in Deschutes County CJ2024-121
Steve Dennison, County Clerk
Commissioners' Journal 05/03/2024 9:45:04 AM
LEGAL COUNSEL
\y3���7� II I I I III I IIII II I i II I II I it II I III
2024-121
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Denying Review of Hearings
Officer's Decision in File Nos 247-23-000293- * ORDER NO. 2024-013
CU, 294-CU, 295-CU, 737-SMA, 738-SMA,
739-SMA
WHEREAS, on March 22, 2024, the Hearings Officer issued a decision on File Nos. 247-23-
000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA; and
WHEREAS, on April 3, 2024, Central Oregon LanclWatch, the Appellant, appealed (Appeal
Nos. 247-24-000200-A, 201-A, 202-A) the Deschutes County Hearings Officer's Decision on File Nos.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA; and
WHEREAS, Sections 22.32.027 and 22,32.035 of the Deschutes County Code ("DCC") allow
the Deschutes County Board of County Commissioners ("Board") discretion on whether to hear
appeals of Hearings Officers' decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application
on appeal; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. That it will not hear on appeal Appeal Nos. 247-24-000200-A, 201-A, 202-A
pursuant to Title 22 of the DCC and/or other applicable provisions of the County land use
ordinances.
Section 2. Pursuant to DCC 22.32.015, the County shall refund any portion of the appeal
fee not yet spent processing the subject application. If the matter is further appealed to the Land
Use Board of Appeals and the County is required to prepare a transcript of the hearing before the
Hearings Officer, the refund shall be further reduced by an amount equal to the cost incurred by
the County to prepare such a transcript.
Section 3. Pursuant to DCC 22.32.035(D), the only documents placed before and
considered by the Board are the notice of appeal, recommendations of staff, and the record
ORDER NO. 2024-013
developed before the lower hearing body for File Nos. 247-23-000293-CU, 294-CU, 295-CU, 737-
SMA, 738-SMA, 739-SMA as presented at the following website:
www.deschutes.org/247-23-000293-CU-294-CU-295-CU
DATED this lday of 2024.
ATTEST:
Recording Secretary
® p p o S 6' ,j .--.
PATTI ADAIR, Chair
ANTHONY DEBONE, Vice Chair
PHIL CHANG, Commissi ner
ORDER NO. 2024-013
BOARD OF
COMMISSIONERS
MEETING DATE: April 24, 2024
SUBJECT: Consideration to hear an appeal of the Hearings Officer's Decision concerning
three non -farm dwellings on properties in the EFU zone
RECOMMENDED MOTION:
Move approval of Order 2024-013, an Order denying review of the Hearings Officer's
Decision in File Nos. 247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA and 739-SMA.
BACKGROUND AND POLICY IMPLICATIONS:
A public hearing on the applications was held on February 6, 2024, before a Hearings Officer.
On March 22, 2024 the Hearings Officer issued a decision approving the applications. Central
Oregon LanclWatch submitted a timely appeal of the Hearing's Officer Decision on April 3,
2024. On April 24, 2024, the Board of County Commissioner will decide whether to hear this
appeal.
BUDGET IMPACTS:
None
ATTENDANCE:
Haleigh King, Associate Planner
Jacob Ripper, Principal Planner
Legal Counsel
\,'I ES
w
COMMUNITY DEVELOPMENT
MEMORANDUM
TO: Board of County Commissioners
FROM: Haleigh King, Associate Planner
DATE: April 17, 2024
RE: Consideration to Hear on Appeal - Deschutes County Land Use File Nos. 247-23-
000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA; Grossmann Non -Farm
Dwellings
On April 24, 2024, the Board of County Commissioners (Board) will consider whether to hear an
appeal of a Hearings Officer's decision (ref. File Nos. 247-23-000293-CU, 294-CU, 295-CU, 737-SMA,
738-SMA, 739-SMA) approving a series of land use applications to establish a non -farm dwelling on
three separate properties under the same ownership.
I. BACKGROUND AND PROCEDURAL HISTORY
A public hearing before the Hearing's Officer was held on February 6, 2024. On March 22, 2024, the
Hearings Officer issued a tentative decision for the subject applications. Staff notes that while these
applications were evaluated under one Hearing's Officer decision, each Conditional Use Permit and
corresponding SMIA Review are distinct and separate land use applications.
The Hearing Officer's decision is summarized as such:
• Approval of Applicant's requests for conditional use and surface mining impact area
review to establish three (3) non -farm dwellings on three separate legal lots of record in the
EFU zone.
• Denial of Applicant's requested DCC 18.88.060 B.1 exception to site the dwelling envelopes
within 300-feet of the road located on the west side of the subject property.
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
%.(54-I)388-65/5 @acddCoudeschutes.org @www.deschutes.org/cd
II. PROPOSAL
The applicant proposes to establish a non -farm dwelling on each of the three properties listed
below:
• Property #1: 69900 NW Lower Valley Drive, Terrebonne, OR
o (Map 14-12-30BA, Tax Lot 100)
• Property #2: 69850 NW Lower Valley Drive, Terrebonne, OR
o (Map 14-12-30BA, Tax Lot 200)
• Property #3: 69800 NW Lower Valley Drive, Terrebonne, OR
o (Map 14-12-30BA, Tax Lot 300)
The application review also included a Surface Mine Impact Area Review due to the location of the
subject properties within 1/Z mile from the boundary of a property zoned Surface Mine (SM). The
Wildlife Area Combining Zone, associated with the Metolius Deer Winter Range, also applies to the
subject property and the application was required to address the dwelling siting standards in DCC
18.88.060,
III. COLW APPEAL
rPntral OrPunn I AnriVVatrh giihmittari a timely ;;nnPal of the HParinu't offirar naricinn nn Anril
2024. The notice of appeal cited the following issues on appeal:
• The Hearings Officer erred in finding the proposed uses will not materially alter the stability
of the land use pattern in the area.
• The Hearings Officer erred in finding the subject property is not suited for the production of
farm crops and livestock and could not be used in conjunction with surrounding lands.
• The Hearings Officer misinterpreted DCC 18.88.060 regarding wildlife habitat protection.
• The Hearings Officer misinterpreted and misapplied state statute regarding parcel creation
date.
• The Hearings Officer erred in their consideration of evidence in the record on multiple issue
areas.
• The appellant disagrees with the appeal fee for BOCC appeals
The appellant did not specify whether de novo, limited de novo, or an on -the -record appeal was
sought. The appellant requests the Board waive the transcript requirements outlined in DCC
22.32.024(D).
IV. BOARD OPTIONS
The Board may decide to hear this appeal, or to decline to hear the appeal. In determining whether
to hear the appeal, the Board may consider only:
247-24-000200-A, 201-A, 202-A Page 2 of 4
1. The record developed before the Hearings Officer;
2. The notices of appeal; and
3. Recommendation of staff'
V. STAFF RECOMMENDATION
Reasons not to hear the appeal:
• The Hearings Officer decision could be supported, as the record exists today, on appeal to
the Land Use Board of Appeals.
• The Hearings Officer addressed the issues raised by the appellant, which are largely similar
to the issues raised in File No. 247-24-000200-A, 201-A, 202-A.
• The applicant and appellant were both represented by legal counsel and had ample
opportunity to submit evidence for the Hearings Officer to consider. Oral testimony was
provided at the February 6, 2024 public hearing, and there was a 21-day open record period
following the hearing, 14 days of which the appellant was eligible to participate and when
additional arguments could be provided for consideration.
• The issues raised on appeal are primarily related to provisions in State statute, and the Board
is unlikely to broadly receive deference if the application is further appealed to the Land Use
Board of Appeals.
For these reasons, Staff, in coordination with Legal Counsel, recommends the Board decline to hear
the appeal.
If the Board decides the Hearings Officer's Decision shall be the final decision of the county, then
the Board shall not hear the appeal and the party appealing may continue the appeal as provided
by law. The decision on the land use application and associated appeals becomes final upon the
mailing of the Board's decision to decline review.
VI. 150-DAY LAND USE CLOCK
The 150t" day on which the County must take final action on the Conditional Use applications is May
27, 2024. Because the Surface Mine Impact Area Review applications were submitted later in the
process, the 150t" day on which the County must take final action on these applications is July 15,
2024.
VI1. RECORD
The record for File Nos. 247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA and the
Notices of Appeal for Appeal No. 247-24-000200-A, 201-A, 202-A are as presented at the following
Deschutes County Community Development Department website:
www,deschutes.org/247-23-000293-CU-294-CU-295-CU
' Deschutes County Code 22.32.035(D)
247-24-000200-A, 201-A, 202-A Page 3 of 4
Attachments:
1. DRAFT Board Order 2024-013 Declining Review of the Hearings Officer's Decision
2. Notice of Appeal (Appeal No. 247-24-000200-A, 201-A, 202-A)
3. Hearing's Officer Decision (File No. 247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA,
739-SMA)
4. Location Map
247-24-000200-A, 201-A, 202-A Page 4 of 4
X
Community Development Department
Planning Division SuiWing Safety Division Environmental Soil% Division
P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
Phone: (541) 38.8-6575 Fax: (541) 385-1764
http://www.deschutes.org/cd
APPEAL APPLICATION
FEE: $13,102.80
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating
the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request
for de novo review by the Board, stating the reasons the Board should provide the de novo review as
provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating the color
areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code.
The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of
the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section
22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues.
Appellant's Name (print): Central Oregon LandWatch Phone: (541) 647-2930
Mailing Address:
2843 NW Lolo Drive
City/State/Zip: 97703
Land Use Application Being Appealed: 247-23-000293-CU, 294-CU, 295-CU / 737, 738, 739-SMA
WM
Property Description: Township 15S Range 20E Section Tax Lot 7700, 7800, 7900
Appellant's Signature: Ca4/-c)V Maw
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE
PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
(over)
10/15
__ __Quality Services_Perfonned with Pride
NOTICE OF APPEAL
LanclWatch appeals the amount of the appeal fee charged. The correct appeal fee is no more
than $ 4367.60. This a single appeal of a single hearings officer's decision. ORS 215.422.
Because the County's position that this appeal is not of a single hearings officer's decision is not
well-founded in law, LanclWatch will seek attorney's fees for the hours spent recuperating
the amount over $4367.60 charged at the rate of $398 per hour.
Grounds for appeal on the merits:
*the challenged decision erroneously found the proposed uses will not materially
alter the stability of the overall land use pattern of the area. ORS 215.284.
* the decision erroneously found the property is not suited to the production of farm
crops and livestock. ORS 215.284.
* the decision misinterpreted and missapplied DCC 18.88.060 regarding wildlife habitat
protection.
* the decision misinterpreted and misapplied ORS 215.284(2)(c) restricting dwellings
to parcels created betore January c ; a)(v).
* the decision misinterpreted and misapplied OAR 660-033-0020(4), date of creation and
existence.
* the decision is not based on substantial evidence; relevant evidence is ignored on
multiple issues including maps, roads, suitability for the production of farm crops and
livestock, parcel creation, land use history, use in conjunction. ORS 197.835(9)(a)(C).
* the decision erroneously found the land cannot be used in conjunction with the
tens of thousands of acres of irrigated and nonirrigated farm uses surrounding
the subject property in every direction, including irrigated lands in the same ownership.
Moreover the property qualified for a farm dwelling on the basis that these properties
were used in conjunction with the irrigated farmlands in the same ownership for
farm use. The applicant is estopped from now claiming the properties cannot be
put to farm or forest use in conjunction with those lands. ORS 215.284(2)(b).
(This page may be photocopied if additional space is needed.)
Mailing Date:
Friday, March 22, 2024
HEARINGS OFFICER DECISION
FILE NUMBER(S): 247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA
OWNER: GROSSMANN, ROGER W & CYNTHIA M
SUBJECT PROPERTY: Property #1: 69900 NW Lower Valley Drive, Terrebonne, OR
(Map 14-12-30BA, Tax Lot 100)
Property #2: 69850 NW Lower Valley Drive, Terrebonne, OR
(Map 14-12-30BA, Tax Lot 200)
Property #3: 69800 NW Lower Valley Drive, Terrebonne, OR
(Map 14-12-30BA, Tax Lot 300)
Collectively referred to as the "Subject Property."
APPLICANT: Lisa Andrach
Fitch and Neary, PC
210 SW 5th Street, #2
Redmond, OR 97756
REQUEST: Conditional Use Permit and Surface Mine Impact Area Review to establish three
(3), non -farm dwellings on three separate legal lots of record (collectively "the
Subject Property") in the Exclusive Farm Use — Sisters Cloverdale Subzone (EFU-
SC), Wildlife Area (WA) Combining Zone and Surface Mining Impact Area
Combining Zone (SMIA).
HEARING TIMES/DATES:
STAFF CONTACT:
•;7k
I. APPLICABLE CRITERIA
6:00 pm, Tuesday, December 5, 2023
6:00 pm, Tuesday, February 6, 2024
Haleigh King, Associate Planner
Phone: 541-383-6710
Email: Haleigh.King@deschutes.org
Record items can be viewed and downloaded from:
www.deschutes.org/247-23-000293-CU-294-CU-295-CU
Deschutes County Code (DCC)
Title 18, Deschutes County Zoning Ordinance
Chapter 18.16, Exclusive Farm Use Zones (EFU)
Chapter 18.56, Surface Mining Impact Area Combining Zone (SMIA)
Chapter 18.88, Wildlife Area Combining Zone (WA)
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 1 of 61
Title 22, Deschutes County Development Procedures Ordinance
II. BASIC FINDINGS
LOT OF RECORD: Tax Lot 100, 200 and 300 were determined to be individual legal lots of record pursuant to
County File No. LR-04-26. The properties were subsequently adjusted via County File Nos. LL-09-117, LL-09-119,
and LL-09-128 to their current configuration. The property line adjustment was perfected via the recordation of
new property deeds and the property line adjustment survey (CS #20439).
SITE DESCRIPTION: Tax Lot 100, Tax Lot 200, and Tax Lot 300 are 4.98 acres, 4.98 acres, and 5.01 acres in size,
respectively. Each property contains a cover of juniper trees and other vegetation typical of the high desert. The
properties are rectangular in shape and are accessed via a private driveway extending off NW Lower Valley Drive,
a private road. The grade of the property is varied.
REVIEW PERIOD: The Conditional Use applications were submitted on April 19, 2023. The applications were
deemed incomplete and an incomplete letter was sent to the Applicant on May 19, 2023. The Applicant provided
a response to the incomplete letter and requested the applications be deemed complete on September 15, 2023.
The Applicant subsequently tolled the land use clock from October 4, 2023 to October 11, 2023, again from
October 31, 2023 to November 14, 2023 and from the December 5, 2023 to February 6, 2024 and finally tolled for
the time -period of February 6, 2024 to February 27, 2024; a total of 84 clock days to added from the date of March
4, 2024. The final action date (150`h day), therefore, is May 27, 2024.
The Surface Mine Impact Area Review applications (File Nos. 247-23-000737-SMA, 738-SMA, 739-SMA) were
submitted on October 25, 2023 and deemed complete by the Planning Division on November 24, 2023. The
original 1501h day on which the County must take final action on these applications was April 22, 2024. With the
84 days added from April 22, 2024 the final action date (150`h day) is July 15, 2024.
PROPOSAL: The Applicant proposed to establish a nonfarm dwelling on each of the Subject Properties. Sewage
disposal will be via an on -site wastewater system and water is anticipated to be provided by an on -site well. These
applications are addressed in one Hearings Officer Decision but it is important to understand that each Conditional
Use Permit and corresponding SMIA Review are distinct and separate land use applications.
SURROUNDING LAND USES: Immediately surrounding the Subject Properties to the north, south, east, and west
are EFU-zoned parcels in a variety of sizes and shapes ranging from approximately 5 acres to 165 acres. The
majority of surrounding EFU zoned properties contain large scale commercial irrigation pivots and are in active
farm use. The Subject Properties are situated above Deep Canyon, with irrigated farm parcels up and down the
canyon to the southwest and northeast. There appears to be some non -irrigated EFU parcels to the southwest
that may be in use as dry rangeland. The Faith, Hope & Charity Winery, also owned by the property owner of the
Subject Properties, is located approximately one mile to the northeast. The attributes of the adjoining EFU
properties are summarized in the following table.
Owner
Tax Lots
Total Ac./
Irrigated Ac.
Farm
Tax
Dwelling
Unit
Soil Mapping
Units
Deep Canyon LLC
14-12, Tax Lot 706
20 / 0
Yes
No
101E, 106D,
West
71A
Grossmann
14-12, Tax Lot 702
164.99 /
Yes
Yes'
101E, 106D,
North
82.75
71A, 81F, 71B
' County Land Use File No. MC-06-03
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 2 of 61
Two Canyons LLC
East
14-12, Tax Lot 1999
160.09 / 72
Yes
Z
Yes
71A, 716,
106D, 100C,
65A
Deschutes County
14-12, Tax Lot 3201
80.75 / 0
No
No
100C, 106D,
65A, 37B
South
LAND USE HISTORY:
• LR-04-26: Legal Lot of Record Verification for the subject property.
• LL-09-117, LL-09-119, LL-09-125, LL-09-126, LL-09-127, LL-09-128, LL-09-120: Series of Property Line
Adjustments between seven (7) legal lots of record verified under County File No. LR-04-26. These lot line
adjustments resulted in today's configuration of the subject property.
SOILS: According to the Natural Resources Conservation Service ("NRCS") maps of the area, there are two soil
units mapped on each of the subject properties. See Figures 1 to 3 below:
106D Redslide-Lickskillet complex, 15 to 30 percent north slopes. This soil is rated 6e/7e when nonirrigated and
7e when irrigated. This soil is not considered high -value farmland.
71A, LaFollette sandy loam, 0 to 3 percent slopes. This soil is rated 6s when non -irrigated and 3s when irrigated.
This soil is considered high -value farmland.
z County Land Use File No. CU-89-117
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 3 of 61
106D, Redslide-Lickskillet complex, 15 to 30 percent north slopes. This soil is rated 6e/7e when nonirrigated and
7e when irrigated. This soil is not considered high -value farmland.
71A, LaFollette sandy loam, 0 to 3 percent slopes. This soil is rated 6s when non -irrigated and 3s when irrigated.
This soil is considered high -value farmland.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 4 of 61
106D Redslide-Lickskillet complex, 15 to 30 percent north slopes. This soil is rated 6e/7e when nonirrigated and
7e when irrigated. This soil is not considered high -value farmland.
100C Redcliff-Lickskillet complex, 0 to 15 percent slopes. This soil is rated 6e/7e when non irrigated. There is no
rating for irrigated soils. This soil is not considered high -value farmland.
Site Specific Soil Study:
The Applicant submitted three soil studies prepared by Brian T. Rabe, CPSS, WWS of Valley Science and
Engineering. The studies, each dated October 21, 2021, provide a detailed analysis of the soils on each of the
Subject Properties.
The Applicant provided the site -specific soil maps in their response to the incomplete letter and supplemental
burden of proof on September 14, 2023. The map images below are cropped for clarity.
247-23-000293-CU, 294-CU, 29S-CU, 737-SMA, 738-SMA, 739-SMA Page S of 61
The soil study states on Page 4:
All 4.98 acres of Property #1 were evaluated in detail, including 1.88 acres of Lickskillet soils. The
remaining 3.10 acres consisted of soils more like Deskamp in areas with slightly deeper soils and fewer
coarse fragments between delineations of Lickskillet soils and the property boundary or right right-of-
way. A small delineation of Deskamp (0.79 acres) in the southeastern corner of Property #1 is across an
access road from an adjacent area that appears to have been disked or mowed but not irrigated in the
past. The delineations of Deskamp soils are relatively small and irregular in shape and, as such, are
generally unsuitable for farm use in conjunction with adjacent properties. Therefore, the entire area
evaluated is considered "generally unsuitable" for farm use.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 6 of 61
The soil study states on Page 4:
All 4.98 acres of Property #2 were evaluated in detail, including 1.65 acres of Lickskillet soils. The
remaining 3.33 acres consisted of soils more like Deskamp in areas with slightly deeper soils and fewer
coarse fragments between delineations of Lickskillet soils and the property boundary or right right-of-
way. Small delineations of Deskamp (1.24 and 1.95 acres) in the northeast corner of Property #2 are across
an access road from an adjacent area that appears to have been disked or mowed but not irrigated in the
past. The delineations of Deskamp soils are relatively small and irregular in shape and, as such, are
generally unsuitable for farm use in conjunction with adjacent properties. Therefore, the entire area
evaluated is considered "generally unsuitable" for farm use.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 7 of 61
The soil study states on Page 4:
All 5.01 acres of Property #3 were evaluated in detail, including 2.13 acres of Lickskillet soils and 0.48 acres
of Rock outcrop. The remaining 2.40 acres, or 47.9%, consisted of soils more like Deskama in areas with
slightly deeper soils and fewer coarse fragments between delineations of Lickskillet soils and the property
boundary or right right-of-way. The delineations of Deskamp soils are relatively small and irregular in
shape and, as such, are generally unsuitable for farm use in conjunction with adjacent properties (none
of which appear to be or ever have been farmed). Therefore, the entire area evaluated is considered
"generally unsuitable" for farm use.
Additional discussion and analysis, as it relates to Applicant's site -specific soil study, is included in later Hearings
Officer findings.
PUBLIC AGENCY COMMENTS: The Planning Division mailed notice on April 28, 2023, to several public agencies
and received the following comments:
Deschutes Countv Building Division, Randv Scheid
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 County Onsite Wastewater, Todd Cleveland
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 8 of 61
The approved development area associated with the dwelling needs to include the existing approved site
evaluation area or a new site evaluation will be required. See site evaluation 247-21-000500-EVAL
Deschutes County Senior Transportation Planner, Peter Russell
I have reviewed the transmittal materials for 247-23-000293-CU to develop a non -farm dwelling on a 4.98-
acre parcel in the Exclusive Farm Use (EFU), Surface Mining Impact Area (SMIA), and Wildfire Area (WA)
zones at 69900 NW Lower Valley Rd., aka County Assessor's Map 14-12-30BA, Tax Lot 100.
The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook indicates a
single-family residence (Land Use 210) generates an average of approximately nine daily weekday
trips. Deschutes County Code (DCC) at 18.116.310(C)(3)(a) states no traffic analysis is required for any
use that will generate less than 50 new weekday trips. The proposed land use will not meet the minimum
threshold for additional traffic analysis.
The property accesses NW Lower Valley Drive, a private road, functionally classified as a local. The access
permit requirements of DCC 17.48.210(A) do not apply. Staff noted, however, that the Applicant may
propose access via other roads. As these roads will provide access to more than three tax lots, the road
naming requirements of DCC 16.16 are triggered. Staff recommended that the Hearings Officer defer to
the County's Property Address Coordinator for a final determination if the road naming requirement is
met. The Hearings Officer concurred with Staff's recommendation.
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $5,080 per
p.m. peak hour trip. County staff has determined a local trip rate of 0.81 p.m. peak hour trips per single-
family dwelling unit; therefore, the applicable SDC is $4,115 ($5,080 X 0.81). The SDC is due prior to
issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due
within 60 days of the land use decision becoming final.
THE PROVIDED SDC AMOUNT IS ONLY VALID UNTIL JUNE 30, 2023. DESCHUTES COUNTY'S SDC RATE IS
INDEXED AND RESETS EVERY JULY 1. WHEN PAYING AN SDC, THE ACTUAL AMOUNT DUE IS
DETERMINED BY USING THE CURRENT SDC RATE AT THE DATE THE BUILDING PERMIT IS PULLED.
ON JULY 1, 2023, THE SDC RATE GOES UP TO $5,603 PER P.M. PEAK HOUR TRIP AND THE SDC FOR A
SINGLE-FAMILY HOME WILL BE $4,538 ($5,603 X 0.81) AND THAT SDC AMOUNT WILL BE GOOD
THROUGH JUNE 30, 2024.
Deschutes County Property Address Coordinator, Tracy Griffin
It appears from the aerial map in DIAL that the access for these parcels, 14-12-30BA-00100, 00200 and
00300 trigger CDD 16.16.020,
All unnamed public and private roads and other roadways which provide access to three or more tax lots,
or which are more than 1,320 feet in length, shall be assigned a name in accordance with the procedures
in DCC 16.16.030'.
Therefore, further discussion with the property owner regarding the actual access to these parcels is
necessary and a road naming application is probable.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 9 of 61
State Fire Marshal, Clara Butler
Fire has no comments.
Oregon Department of Fish and Wildlife, Jessica Clark, May 3, 2023
ODFW recently received a Notice of Application for 3 neighboring properties owned by the same
landowner under the same applicant. The File No.'s are 247-23-000293-CU and -295-CU (attached). The
properties fall within the County's Metolius Deer Winter Range WA Zone and the applications all list
Chapter 18.88, WA Zone as applicable criteria.
In the 3 applications, the applicant addresses 18.88.060 Siting Standards by stating that the dwellings will
be built within 300' of a historical road (August 5, 1992), and goes on to provide engineering drawings
(Exhibit 5 in the Applications) and aerial photos to support this claim.
Could you please provide some clarification on whether the County is accepting the historic roads drawn
in Exhibit 5 as proof? From the aerial photographic evidence that they've provided, we have not seen a
road that qualifies as historic and we encourage the county to ensure the criteria listed under 18.88 are
followed.
For ease of reference, the links to the applications are below:
https://weblink.deschutes.org/cdd/DocView.aspx?id=1163189&cr=1
https://weblink.deschutes.org/cdd/DocView.aspx?id=1163188
https://weblink.deschutes.org/cdd/DocView.aspx?id=1163191
Oregon Department of Fish and Wildlife, Jessica Clark, October 19, 2023
Cynthia Grossman called Andrew Walch yesterday, requesting to talk about their recent 'evidence' of
roads existing prior to 1992 which is included in their Burden of Proof Statement. We called her back today
and told her it wasn't up to us to accept the roads condition. Application: 247-23-000293/ 294/ 295-CU If
there is a Hearing, could you please keep us in the loop of when it is scheduled?
Oregon Department of Fish and Wildlife, Jessica Clark, November 17, 2023
ODFW would like to re -iterate the comments made in our previous comment letter dated
5/03/2023. We'd also like to make clear that despite the additional maps and aerial photos provided by
the applicant during the fall of 2023, ODFW does not see evidence of a road pre -dating August 5, 1992 in
those documents provided in the application materials (link below). In this case, with the materials
provided, ODFW does not support an exception to Deschutes County Code (DCC) 18.88.060 Siting
Standards, and encourages the county to ensure that Goal 5 mule deer winter range habitat is allowed
the protections outlined in DCC.
https://www.deschutes.org/cd/page/247-23-000293-cu-294-cu-295-cu-conditional-use-permits-three-
3-non-farm-dwellings
Thank you for keeping us in the loop of this application! Please let me know if you want to discuss anything
further, and please add this correspondence to the record.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 10 of 61
Department of State Lands, Lynne McAllister, June 1, 2023
Response Page
Departnea-nt of State Lands (DSLp WNN"
WN2023.0364,
Responsible Jurisdiction
Staff Contact Judsdlction Type Municipality
r al f-*l_ihtting G: ,:^ty e.sidI"U,,:..
Local case Me # County
91-29-000293-CLI DQrdh ,,s
Activity Locatiw
Township Range Section QQ section Tax Lots)
14s 12E 310 13A 9liti
riJ3iC14 NIN I„uw�� ':4diey D
T,9f n'; Ilhfw;$ C1ft
Latitude Lonallude
b=331 it,-121.3-13I A
WWetiandMaterwayJOther Water Features
Tt„-�c; aroAnay bo wot andr. wate.:r/ays cr uthnr Wot€r pcaturos on tho txrparty Ihat aro subioci to tho :rate.. R,'ir<OaI•
Fx I.ow brr✓:d upon a review of w "hind rn ,I :,, thn c .'H W m my rm,d Inform,Slicrt.
Tr,,, Walional Wetlands I r:ventr= y sho%4s wetland, waterway m other water features on the k;cipeny
Your Activity
It appears ;hat the proposed pfoAct may , npart wetlands and may require a SWe peniid,
Applicable Oregon Removal -Fill Permit Requirement(s)
(continued)
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 11 of 61
A state -mit is required for Gil cubic Vards cr more of fill Temoval, or other ground alleratc'n In'arellands, betvm
ordinary high water of wilhin other waters of t slate, or belaahv highest nnessured We.
Closing Information
Addifional Comments
t bl t doc..SYirefll c ti,: sffUr ri€t d trr ihr. r ...d eri r tA*ilii, a , bui ,l - not cr. a�iri a iifre lari AfeevurUjs land
Use notice ltkhdz,`2:-r,T281+dorurnerled the &arrc -i hereFrc-.'his rtv,spoos C_,r' _i t,• i v!e EuEclir. A
4 VAWnctdsta-F_.Tt m,s Tlappr'd trl the i :arihea.l r.::Non _, hi% pr Trrc rt and ;dn ',i,- <_ on i,c a( t� ararr.,ras
an,,e nrazay, Thin arr. i�Arye ,r r : ptrnt;r . _, ca+urns in qit:2 a,I ltir Nh I vNct grofind Ti' : r art.,
rm: 1 x,:li(ln, bul a rru n_ tl . a'.,.�a ni.... ,.(.a.zz �ri'rstarunt n q aye ri1lr.fAw1 Q,, dut= Il itrf
junk. -U)f,. trc4l. ::9 a _Harr d«.6rr ,ate;,,,, tltra ::vc. x Nf-d pgeO fihuuld avi.Ad .,.„, ., le eastern L. if of 1I7a
pioperry '0,liher ;...s .ions of the V'r o,_:,•. y appear _o be suirab,` r- =r building. II ,_ Is proposed it the F±£ stern
pr,,r:irin, in wella7nd .x:;, U3'ICyrf i r _:,r In a_ „__: I:; r 1 i.?q irripai l*. t.a PL%-. ;-',ial ., sHiu F)nFJ wc,.,Iors. 3'rjt_i are
ollc wi:l d lijbiO of 90 cutyrr ,,cord* ct; rime. , of f 3, -.�vtd, rifd;v r;r iont ;err rr .anal at ttur.,4razc n.ai t i. v,�fr .. iv,: & tlr rtc
it+ 5if� Iffle filly a lwrfl
This is a prellitiInll y a etemjination aat;d Is advisory canny
Thi. r,_i "fl ,_: 1111 11If- m21r., fa,.s1;.,5,a1 V>a hive, fil'fly, 011,y ,)i C:�z,a,i,1 pmII 1 , ntay r„, rr gI3Iff ..r if'=itNrnlns.. a;_.i.4ri
Contact Information
rof t:npnirtiffin!] lw�'.fir o ,Last. r„n,.rl air Ie .wntltlnri :loci!ir nI.'
e:ranlA(1 the rp., lecli;,.. 17' a, AflwAi+.. ref.=,uul I°=..p yur All i:Ai..lr.",r1 Coll ? tc IP,....::O i.;arzlAV I kf,
cufrent Its! Is Ne,r.tnrl at: isitp: kaxra °.; �� e fa;as! sl,ta�xija g sFs� as ar.afip
The �,urrent Pernt,,ai + '1 pefrr 1 a=--d!rx Welland Delineatc", report fee sd,,rrdl e I'
a1 Mips ;1*w4,,,ofvgon
lRosponso OzIl a
6.1 1!,1V
Rosponse by.
Res apse Matte!
` 03.9t 6-1::31it)
Department of State Lands, Lynne McAllister, November 2, 2023
Thank you for the site plan. The notice was for only tax lot 100, so my response only pertains to the most
northern lot in the diagram. The other 2 lots didn't show anything mapped on the SWI, so they wouldn't
require a Wetland Land Use Notice.
The building envelope on tax lot 100 is directly on top of the mapped feature of concern, which is a
tributary of Deep Canyon. This may only be an ephemeral drainage, but it is not possible for me to
determine that from an offsite assessment. I still recommend an on -site check
(determination/delineation) by a consultant before ground disturbance occurs. The report should be sent
to DSL for review and approval. The feature appears on LiDAR imagery, so there is something present on
the ground.
I am copying this message chain to Jessica Salgado, Jurisdiction Coordinator for Deschutes County, who
would review a determination/delineation.
Staff Comment (Staff Report, page 15): Staff, provided the following comment related to the necessity of a
wetland delineation.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 12 of 61
As of the writing of this staff report, the applicant has not included a wetland delineation in the record specific
to Tax Lot 100, per the DSL recommendation noted above. Based on the proposed building envelope, the
proposed project occurs in the eastern half of the subject property. This is the area where DSL identified
potential wetlands. Staff includes a recommended condition of approval for the applicant to prepare and
submit a wetland delineation to DSL to precisely identify any wetlands on Tax Lot 100. The results of the
delineation would determine if additional state or local permitting is required for site development.
Applicant Wetland Response (Third Supplemental Burden of Proof Statement, page 5):
The originally proposed building envelope for Tax Lot 100 was within the vicinity of a possible wetlands area.
The applicant submitted a request to the State DSL, on November 6, 2023. (Exhibit 4) The applicant is still
waiting for the results of that onsite determination. However, the proposed alternative dwelling location is
outside of the vicinity of the potential wetland, and if approved, would be outside the vicinity of the possible
wetland.
The Hearings Officer notes that the potential wetland on Tax Lot 100 is relevant to a final permitting approval and
that a condition of approval is necessary to assure compliance with state and/or local law. The Hearings Officer
included a condition of approval requiring Applicant to prepare and submit a wetland delineation to the
Department of State Lands to verify the extent of potential wetlands on Tax Lot 100.
The following agencies did not respond to the notice: Central Electric Cooperative, Deschutes County Assessor,
Deschutes County Property Management, and Watermaster — District 11.
PUBLIC COMMENTS: The Planning Division mailed notice of the conditional use applications to all property owners
within 750 feet of the subject property on April 28, 2023. The Applicant also complied with the posted notice
requirements of Section 22.24.030(B) of Title 22. The Applicant submitted a Land Use Action Sign Affidavit
indicating the Applicant posted notice of the land use action on April 28, 2023.
Staff received a comment from Central Oregon LanclWatch ("COLW") on November 8, 2023 indicating that COLW
believed that the Applicant, in this case, may have not met all relevant approval criteria and requested a Staff
comment related to the "150-day clock." Carol McBeth, on behalf of COLW, offered oral testimony at the Hearing
and submitted open record documents. The findings below address COLW expressed concerns with the
applications.
Staff Comment (Staff Report, page 15): Staff included the following response to the COLW "150-day clock"
question:
Staff provided a response to Central Oregon Landwatch to respond to their 150-day clock question. However,
the comments provided do not afford enough specificity to be addressed by Staff below in the decision.
See the Hearings Officer Review Period findings above.
NOTICE REQUIREMENT: On November 6, 2023, the Planning Division mailed a Notice of Public Hearing to all
property owners within 750 feet of the Subject Property, agencies, and parties of record. A Notice of Public
Hearing was published in the Bend Bulletin on November 12, 2023. The Applicant complied with the posted notice
requirements of DCC 22.24.030(B). The Applicant submitted a Land Use Action Sign Affidavit indicating the
Applicant posted notice of the land use action on April 28, 2023.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 13 of 61
III. FINDINGS & CONCLUSIONS
A. PRELIMINARY FINDINGS:
1. Purpose of the Preliminary Findings
The Hearings Officer, in these Preliminary Findings, responds to a number of the issues raised by COLW. These
Preliminary Findings are intended to provide an overview of the COLW issues, discussion of the relevant
laws/rules related to those issues and the Hearings Officer's legal interpretation of various sections of the DCC
and State statutes/regulations relevant to the COLW issues. The Hearings Officer incorporates these Preliminary
Findings as additional findings for relevant approval criteria.
2. Road Related Siting Issues (DCC 18.88.060)
All participants in this case concur that DCC 18.88.060 (Siting Standards) is a relevant approval criterion. Applicant
proposed to satisfy the requirements of DCC 18.88.060 by (a) locating proposed building envelopes within 300-
feet of an existing road located on the eastern side of the proposed lots (the "300' Option") and/or (b) locating
building envelopes in proximity to a road located to the west of each proposed lot (the "Exception Option").
Understanding the specific details of each Applicant proposal is necessary to fully assess whether one or both
proposals meet the requirements of DCC 18.88.060.
a. Overview of the "300' Option"
The Applicant proposed to meet DCC 18.88.060 B requirements by locating building footprints, including decks
and porches, for new dwellings within 300 feet of a "private road;" such road existing as of August 5, 1992 (the
"300' Option"). Applicant provided written documentation and oral testimony supporting its claim that a "private
road" existed, as of August 5, 1992, within the eastern portion or on the eastern side of each of the Subject
Property.
The Hearings Officer summarizes COLW's "300' Option" arguments as follows:
(1) the Applicant's evidentiary proof, in the record, of the existence of a qualifying eastern "road" is
inadequate/insufficient; and
(2) the Applicant's interpretation of "road" is not legally supportable; and,
(3) the Applicant must provide evidence/proof that that a "road" existed on the specific date of August
5, 1992; and
(4) the Applicant must demonstrate that the "road" was used "continuously" (had not disappeared).
b. Overview of Western Road (the "Exception Option")
The Applicant proposed to satisfy the requirements of DCC 18.88.060 B.1 (the "Exception Option") by locating
building footprints, including decks and porches, for new dwellings where habitat and migration corridors are
afforded equal or greater protection through a different development pattern. COLW argued that the proper
interpretation of DCC 18.88.060 B.1 requires that an applicant to first demonstrate that proposed building
envelopes exist that meet the 300-foot distance requirement from a August 5, 1992 road. Restated, COLW argued
that the 300-foot setback requirement in DCC 18.88.060 B is a prerequisite to a request for a DCC 18.88.060 B.1
exception. COLW (and the Oregon Department of Fish and Wildlife) also argued that factually the Applicant did
not satisfy requirements demonstrating the alternative location afforded equal or greater protection by locating
the dwellings near the road along the west of the Subject Property.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 14 of 61
c. General Interpretation of DCC 18.88.060
DCC 18.88.060, in part, states:
A. Setbacks shall be those described in the underlying zone with which the WA Zone is combined.
B. The footprint, including decks and porches, for new dwellings shall be located entirely within 300 feet of
public roads, private roads or recorded easements for vehicular access existing as of August 5, 1992 unless
it can be found that:
1. Habitat values (i.e., browse, forage, cover, access to water) and migration corridors are afforded
equal or greater protection through a different development pattern; or,
COLW's first argument related to DCC 18.88.060 is that Applicant failed to provide adequate factual evidence, in
the record, to demonstrate Applicant's proposed location of building footprints met the 300-foot distance
requirement from a August 5, 1992 road. The Hearings Officer does not address the COLW evidentiary argument
in these Preliminary Findings. The evidentiary issue will be addressed in the general findings for DCC 18.88.060.
The Hearings Officer, in these Preliminary Findings, does address the following COLW's interpretation arguments:
(1) Is DCC 18.88.060 B a prerequisite to consideration of one or more of the exceptions set forth in DCC
18.88.060 B.1, B.2 and B.3 (section d. Prerequisite Issue); and
(2) is a "farm road" a DCC 18.88.060 B.1 "private road (section e. Road Definition Issue);" and
(3) must an applicant demonstrate, on the specific date of August 5, 1992, that a "road" existed or can an
applicant provide evidence that a "road" existed "prior to" August 5, 1992 (section f. Disappearing Road
Issue); and
(4) must a "road" be used "continuously" (section f. Disappearing Road Issue)?
d. Prerequisite Issue
COLW argued that DCC 18.88.060 B requires, as a prerequisite to an applicant seeking a DCC 18.88.060 B.1, B.2 or
B.3 "exception," that there is satisfactory evidence in the record that the proposed footprint(s) is/are located
within 300-feet of a road existing on August 5, 1992. Applicant disagrees with this COLW argument asserting that
satisfying DCC 18.88.060 B is not a perquisite to applying for and receiving approval of a DCC 18.88.060 B.1
"exception."
DCC 18.88.060 B contains part of a single sentence with two separate thoughts or parts. These separate thoughts
or parts are connected by the word "unless." The first part of DCC 18.88.060 B clearly sets out a requirement that
building footprints must be entirely located within 300-feet of a August 5, 1992 roadway (the Hearings Officer will
address the interpretation of public roads, private roads or recorded easements in the findings below). The
second part of DCC 18.88.060 B contains what the Applicant, Staff and COLW refer to as "exceptions."
The Hearings Officer finds that the word "unless" creates an ambiguity in the interpretation of DCC 18.88.060 B.
Consistent with State v. Gaines, 206 P.3d 1042 (2009), a decision maker facing a code/statute/regulation that
contains an ambiguity must first consider the "text" and "context" of the ambiguous word/phrase.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 15 of 61
"Unless" is not defined in the DCC. The Hearings Officer finds that the word "unless," as used in DCC 18.88.060 B,
is a "conjunction." A "conjunction" is defined as a word "that join together other words or groups of words." The
word "unless" does in fact join two distinct groups of words in DCC 18.88.060 B.3
The Merriam -Webster Online dictionary defines "unless," as: "except if' and "except on the condition that." The
Hearings Officer interprets the word "unless" as allowing an alternative or creating an exception process.
Restated, the Hearings Officer finds that a textual review strongly suggests that DCC 18.88.060 B.1, B.2 and B.3
are alternative methods to satisfy the DCC 18.88.060 Siting Standards.
The Hearings Officer also considered the word "unless" within the context DCC 18.88 overall and specifically within
18.88.060. DCC 18.88.010 (Purpose Section) sets forth the overall goal of the Wildlife Area Combining Zone; to
conserve important wildlife areas in Deschutes County and to permit development compatible with the protection
of wildlife resources. The Hearings Officer finds DCC 18.88.060 B.1 does in fact focus on allowing an exception so
long as a proposed exception request does in fact conserve important wildlife resources. Applicant seeks to satisfy
the alternative or exception provisions of DCC 18.88.060 B.1. DCC 18.88.060 B.1 states that to approve an
alternative or exception an applicant must show that:
"habitat values (i.e., browse, forage, cover, access to water) and migration corridors are afforded equal or
greater protection through a different development pattern."
The Hearings Officer finds the above -quoted language of DCC 18.88.060 B.1 includes the phrase "afforded equal
or greater protection..." The alternative location must respond to the DCC 18.88.060 B.1 mandated test: equal or
greater than "something." The Hearings Officer finds that the "something" can be reasonably interpreted to refer
to footprints which are entirely located within 300-feet of a road that existed as of August 5, 1992; the standard
set forth in DCC 18.88.060 B. The Hearings Officer finds that "equal or greater protection" means that the
alternative must be "equal or greater" than the wildlife protection afforded by the location of a footprint within
300-feet of a August 5, 1992 road.
The context analysis of the word "unless" suggests that any DCC 18.88.060 B.1 exception must demonstrate that
the proposed alternative provides "equal or greater" wildlife protection than a qualifying DCC 18.88.060 B
proposal. The Hearings Officer finds the most reasonable and plausible contextual interpretation of DCC 18.88.060
B is that meeting the 300-foot (from a August 5, 1992 road) requirement is a prerequisite to affording an applicant
the right to seek a DCC 18.88.060 B.1 alternative or exception.
The Hearings Officer also finds that consideration of ORS 174.010 is appropriate in this interpretative analysis.
ORS 174.010 states:
"In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or
in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and
where there are several provisions or particulars such construction is, if possible, to be adopted as will give
effect to all."
The Hearings Officer finds that interpreting DCC 18.88.060 B as a prerequisite to the application of DCC 18.88.060
B.1 gives effect to all of DCC 18.88.060 B. The Hearings Officer finds that concluding that DCC 18.88.060 B.1 is not
a prerequisite to the application of DCC 18.88.060 B.1 would constitute the omission of the 300-foot DCC
3 DCC 18,88.060 B. includes a first group of words setting forth the 300-foot from a August 5, 1992 road requirement and a second group
of words providing for exceptions described in DCC 18.88.060 B.1, B.2 and B.3.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 16 of 61
18.88.060 B requirement and the disregarding (omission) of the DCC 18.88.060 13.1 "equal or greater" protection
language.
e. Road Definition Issue.
DCC 18.88.060 B. includes references to "public roads," "private roads," and "recorded easements." COLW argued
that Applicant's alleged roadway located to the east of the Subject Property (Subject Property refers to all three
of the Applicant's proposed non -farm lots) is not a "public road," "private road" or "recorded easement" as
required by DCC 18.88.060 B. COLW, in its February 13, 2024 record submission, stated the following:
"The terms 'public road,' 'private road,' farm road,' and 'driveway are undefined in the County code. In plain
English a "public road" is a road publicly maintained for use by cars and trucks. A "private road" is a road
privately maintained by a group of persons with permission to use it to provide car and truck access to their
driveways. A "driveway" is a privately maintained stretch of road connecting a public or private road to a
residence. A 'farm road" is a privately maintained road used by a farmer to access his fields.
There is no evidence of a road existing in 1992. Moreover, even if there were such a road there is no evidence
it could be the access road to the nonfarm parcels, which must be located within 300 feet of such a road. DCC
18.88.060(B).
East of the subject property there is nothing even now except a farm road. A farm road is not one of the four
alternatives in DCC 18.88.060(B).
According to the testimony of the applicant's representative, the road to the east, if it is a road, has
disappeared at various times in the past. The phrase "as of" indicates the time specified by the acknowledged
code as the beginning time for the road's existence, August 5, 1992. By the Protecting Central Oregon's Natural
Environment And Working For Sustainable Communities 4 applicant's own admission, the farm road in
question is not a road existing as of August 5, 1992, but is only existing as of the last time it disappeared. There
is no qualifying road existing as of August 5, 1992 in the vicinity. Therefore, the application must be denied."
Applicant (February 13, 2024 Applicant Statement, Open Record — Round One) responded with the following
comments/arguments:
"The criterion at issue broadly allows the standard to be met so long as a 'private road, easement for vehicular
access or driveway' is established as being in existence on August 5, 1992. In 1995, the County broadened the
application of the original standard adopted in 1992, which was originally limited to "roads or easements" to
also include 'driveways.' (Exhibit 51992 Ordinance 92-042, Page 4) (Exhibit 6 - Ordinance No. 95-001, Exhibit
"A" page 2-3) Therefore, the language is intended to be broadly inclusive, but also in 1995 the County clarified
that to qualify, 'easements' would have to be for 'vehicle access.' (Exhibit 6) The County did not define or limit
the scope of the types of vehicles that are required within the language of the code, leaving it broadly
applicable and inclusive of all types of vehicles.
Merriam Webster Dictionary defines 'vehicle,' in part, as follows:
1. A means of carrying or transporting something. Planes, trains, and other vehicles such as (a) motor
vehicle (b) a piece of mechanized equipment.
Based upon the forgoing definition, the farm equipment, as well as trucks, trailers, tractors, and Mr. Howard's
crane constitute 'vehicles.'
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 17 of 61
The county adopted a definition of 'Road or Street' and of 'Driveway' in 1995 in conjunction with the
amendments to DCC 18.88.060. (Exhibit 6 Ordinance 95-001)
"Driveway" was defined as 'A way created to provide vehicular access from a public or private road to a
garage or parking area.' (Exhibit 6, Page 1)
'Road or Street' was defined as: 'A public or private way created to provide ingress or egress to one or
more lots, parcels, areas or tracts of land.' (Exhibit 6, Page 1)
Here, the "ways" at issue constitute "roads" as defined by the county. They are private "ways" created to
provide ingress and egress to one or more lots, parcels, areas or tracts of land. Again, the definition is very
broad in scope and expressly includes the broad application to allow for "ways" that are used to access "areas
or tracts of land. "
Here, the aerial imagery shows that the "ways" at issue herein connect different farm fields, parcels, and
different areas or tracts of land, including connectivity to neighboring lots, tracts, or areas including private
and County and BLM public lands. The Declaration of Mr. Howard (Exhibit 1) also attests to the use of the roads
to access different parts of the farm, the neighboring farm, county ground and BLM grazing allotments. The
use was not limited to just the Howards, but as Mr. Howards states, the roads were used by the farmers of the
area. (Exhibit 1) Notably, there is no minimum improvement standard for the road, the easement for vehicular
access, or driveway.
Based upon the totality of the evidence in the record, the appliable criterion of DCC 18.88.060(B) and (C)
pertaining to "roads or easements for vehicle access or driveway" has been met."
DCC 1 R 88 nrn r in itr PntlretV. States:
C. For purposes of DCC 18.88.060 (B):
1. A private road, easement for vehicular access or driveway will conclusively be regarded as
having existed prior to August 5, 1992 if the applicant submits any of the following:
a. A copy of an easement recorded with the County Clerk prior to August 5, 1992
establishing a right of ingress and egress for vehicular use;
b. An aerial photograph with proof that it was taken prior to August 5, 1992 on which
the road, easement or driveway allowing vehicular access is visible;
c. A map published prior to August 5, 1992 or assessor's map from prior to August 5,
1992 showing the road (but not showing a mere trail or footpath).
2. An applicant may submit any other evidence thought to establish the existence of a private
road, easement for vehicular access or driveway as of August 5, 1992 which evidence need
not be regarded as conclusive.
Based upon the Hearings Officer's review of the record the possible "roadway" located to the east of the Subject
Property is not a "public road" and was not created by a "recorded easement." It appears to the Hearings Officer
that Applicant is seeking to characterize the possible "roadway," located to the east, as a "private road" as that
phrase is used in DCC 18.88.060.
COLW stated (COLW quoted material above) that "a farm road is not one of the four alternatives in DCC
18.88.060(B)." The Hearings Officer concurs with COLW that the phrase "farm road" is not a word/phrase included
in the explicit language set forth in DCC 18.88.060 B; or, for that matter in DCC 18.88.060 C. The Hearings Officer
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 18 of 61
finds that the failure of the phrase "farm road" to be specifically included in DCC 18.88.060 is not necessarily
determinative in this case.
The Hearings Officer concurs with COLW that the phrase "private road" is undefined in the County Code. The
Hearings Officer does, however, takes issue with COLW's assertion that a "private road" is a "road privately
maintained by a group of persons with permission to use it to provide car and truck access to their driveways."
The Hearings Officer disagrees with COLW's limitation of use of a "private road" to "cars" and "trucks."
The Hearings Officer finds Applicant's reference to the dictionary definition of "vehicle" is relevant. Applicant's
Merriam -Webster quoted definition of "vehicle" is, in part, that a "vehicle" is a "means of carrying or transporting
something." The Merriam -Webster Online Dictionary definition of "vehicular" is "relating to, or designed for
vehicles and especially motor vehicles." The Hearings Officer, based on the dictionary definitions of "vehicle" and
"vehicular," finds that farm vehicles such as tractors and trucks and similar motorized transportation devices are
included in the DCC 18.88.060 B and C meaning/definition of the phrase "vehicular access."
As additional support for the "vehicle" and "farm road" findings above, the Hearings Officer takes note of the DCC
18.04.030 definitions of "road or street" and "roadway." "Road or street" is defined, in part, as "a public or
private way created to provide ingress or egress to one or more lots, parcels or tracts of land." "Roadway" is
defined to mean "that portion of a street or road right of way developed for vehicular traffic." The term "way" is
not defined in the DCC. Merriam -Webster Online Dictionary defines "way" as "connected with, or constituting an
intermediate point on a route." In the context of the DCC 18.04.030 definition of "road or street" the Hearings
Officer finds that term "way" can reasonably be interpreted to mean an "access connection between two points."
The Hearings Officer finds the DCC 18.88.060 reference to "private roads" is extremely broad in scope and includes
private access connections between two places or points. The Hearings Officer finds that the DCC 18.88.060
phrase "private roads" is not limited to a discrete class or type of vehicles, by the level of physical improvement
(i.e., dirt or paved surface) or the frequency of use. The Hearings Officer finds that a "farm road" meets the
requirements of a DCC 18.88.060 "private road."
f. Disappearing Road Issue.
COLW argued (February 13, 2024, pages 3 & 4) that Applicant's alleged eastern "private road"
"has disappeared at various times in the past. The phrase 'as of indicated the time specified by the
acknowledged code as the beginning time for the road's existence, August 5, 1992. By the applicant's own
admission, the farm road in question is not a road existing as of August 5, 199Z but is only existing as of the
last time it disappeared."
The above -quoted COLW statement requires the Hearings Officer to speculate as to the precise legal issue the
Hearings Officer is asked to address. COLW may be arguing that an applicant must provide evidence in the record
that on a very specific date (August 5, 1992) a "private road" existed. For example, if this characterization of
COLW's argument is correct, then an applicant would be required to include in the record an aerial photograph or
map with a August 5, 1992 date stamp. The COLW argument may also be that an applicant must provide proof
that a "private road" was used without interruption (i.e., it did not "disappear"). The Hearings Officer finds the
above -quoted COLW statement does not provide the Hearings Officer a level of specificity to allow the Hearings
Officer to respond in a limited and authoritative way.
In the alternative to the Hearings Officer's rejection of the COLW "disappearing road issue" on the grounds that
COLW's argument lacked specificity, the Hearings Officer makes the following findings.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 19 of 61
DCC 18.88.060 B states, in part, that an applicant must locate building footprints within 300-feet of a "private road
... existing as of August 5, 1992." DCC 18.88.060 C.1 states that a private road "will conclusively be regarded as
having existed prior to August 5, 1992." DCC 18.88.060 C.1.a, b, and c all use the term "prior." DCC 18.88.060 C.2
uses the "as of August 5, 1992 language.
The Hearings Officer finds that the Deschutes County Board of Commissioners ("Board"), in adopting DCC
18.88.060, was likely aware that as time passes an applicant's proof that a "private road" was in existence on
August 5, 1992 would become more challenging. The Hearings Officer finds the use of "prior to" in DCC 18.88.060
C.1, C.1.a, C.1.b and C.1.c reflects the Board's recognition of challenges facing an applicant attempting to use DCC
18.88.060 B. The Hearings Officer interprets DCC 18.88.060 C.1 as establishing the applicant's evidentiary
obligation to prove that a "private road" did exist "as of August 5, 1992 and that proof may be in the form of a
recorded easement establishing the right to use a "private road" prior to August 5, 1992, an aerial photograph
taken prior to August 5, 1992 or a map published prior to August 5, 1992. The Hearings Officer rejects, if that was
actually COLW's argument, the proposition that an applicant must include in the record an aerial photograph
taken or map published or dated precisely on August 5, 1992.
The Hearing Officer, as additional findings for the Disappearing Road Issue finds that COLW provided no citation
or reference to relevant code/law/regulation supporting its general argument that a "private road" must be in
continuous "use" (if that is what COLW meant by "disappearing"). The Hearings Officer finds that if there is
evidence in the record that a "private road" was shown to have existed prior to August 5, 1992 and there is no
persuasive evidence in the record that the "right" to "use" that "private road" was terminated then an applicant
is not required to provide evidence of continuous "use."
3. Lot Creation Date — DCC 18.16.050 G.1.a.(6)
COLW argued (February 6, page 5) that DCC 18.16.050 G.1.a.(6) is not satisfied in this case. COLW noted that DCC
18.16.050 G.1.a.(6) requires that to be eligible for a nonfarm dwelling a proposed site must be "located on a lot
or parcel created prior to January 1, 1993." COLW argued that Applicant acknowledged that the three properties
subject to this decision were reconfigured in 2009. COLW argued that such reconfiguration changed the "date of
creation" to a time after January 1, 1993. COLW relied upon OAR 660-033-0020(4) which states the following:
"'Date of Creation and Existence'. When a lot, parcel or tract is reconfigured pursuant to applicable law after
November 4, 1993, the effect of which is to qualify a lot, parcel or tract for the siting of a dwelling, the date of
reconfiguration is the date of creation or existence. Reconfigured means any change in the boundary of the
lot, parcel or tract."
The Hearings Officer reviewed the Staff analysis (Staff Report, pages 41 — 43) and Applicant's open -record
submission (Applicant Statement [Open Record — Round One], pages 4 - 5) related to DCC 18.16.050 G.1.a.(6).
The Hearings Officer also reviewed the Oregon Court of Appeals decision in Central Oregon Land Watch v.
Deschutes County, Grossman, 320 Or App 650 (2022). The Hearings Officer finds the Oregon Court of Appeals
decision cited above supports Staff's analysis and Applicant's evidence and argument contained in the Staff Report
and Applicant Open Record submission.
The Hearings Officer finds no evidence in the record supporting COLW's suggestion that the 2009 lot line
adjustment (or reconfiguration as referenced by COLW) was for the purpose of qualifying the adjusted or
reconfigured parcels for the siting of a dwelling. The Hearings Officer finds that persuasive evidence is in the record
that the three adjusted/reconfigured parcels, in this case, qualified prior to the 2009 lot line adjustment process,
for the siting of dwellings.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 20 of 61
4. Unsuitability for Farm Use — Use in Conjunction
COLW, through testimony (Carol McBeth) and written submission (i.e., February 6, 2024, pages 5 — 9) asserted
that the proposed parcels do not meet the "unsuitability tests" established by certain identified code and statutory
provisions. COLW, in the February 6, 2024 record submission, summarized its arguments:
"2. ORS 215.284 (7)(b); ORS 215.284 (2)(b); A lot or parcel or portion of a lot or parcel may not be considered
unsuitable solely because of size or location if it can reasonably be put to farm or forest use in conjunction with
other land,...
...parcels cannot be found unsuitable unless it can be shown that they cannot be used in conjunction with
other land for the production of farm crops and livestock. In this case, the standard cannot be met because
Deschutes County CU-92-37 explains that the parcels were in farm use in conjunction with the rest of the
land in the 300+ acre farm at TL702 as of 1992. Obviously, the some land cannot be used in 1992 to obtain
a farm dwelling via CU-92-37 based on its agricultural productivity, and in 2024 to obtain a nonfarm
dwelling via CU-92-37 based on its lack of productivity. The land was in agricultural use as part of a large
productive far use because it has already been determined to have been in farm use with surrounding
lands for the production of farm crops and livestock."
ORS 215.284 states, in part, the following:
(2) In counties not described in subsection (1) of this section, a single-family residential dwelling not
provided in conjunction with farm use may be established, subject to approval of the governing body or
its designee, in any area zoned for exclusive farm use upon a finding that:
(a) The dwelling or activities associated with the dwelling will not force a significant change in or
significantly increase the cost of accepted farming or forest practices on nearby lands devoted to
farm or forest use;
(b) The dwelling is situated upon a lot or parcel or portion of a lot or parcel that is generally
unsuitable land for the production of farm crops and livestock or merchantable tree species,
considering the terrain, adverse soil or land conditions, drainage and flooding, vegetation, location
and size of the tract. A lot or parcel or portion of a lot or parcel may not be considered unsuitable
solely because of size or location if it can reasonably be put to farm or forest use in conjunction with
other land;
(c) The dwelling will be sited on a lot or parcel created before January 1,1993;
(7) In counties in eastern Oregon, as defined in ORS 321.805 (Definitions for ORS 321.805 to 321.855),
a single-family residential dwelling not provided in conjunction with farm use may be established,
subject to the approval of the county governing body or its designee, in any area zoned for exclusive
farm use upon a finding that:
(a) The dwelling or activities associated with the dwelling will not force a significant change in or
significantly increase the cost of accepted farming or forest practices on nearby lands devoted to
farm or forest use;
(b) The dwelling will be sited on a lot or parcel created after January 1,1993, as allowed under ORS
215.263 (Land divisions in exclusive farm use zones) (5);
DCC 18.16.050 G.2.a states, in part, the following:
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 21 of 61
2. For the purposes of DCC 18.16.050 (G) only, 'unsuitability' shall be determined with reference to the
following:
a. A lot or parcel shall not be considered unsuitable solely because of size or location if it can reasonably
be put to farm or forest use in conjunction with other land."
The Hearings Officer finds, for the purposes of this decision, that the section of ORS 215.284 (quoted above) and
the section of DCC 18.16.050 G.2. (quoted above) prohibit a decision maker from concluding that a subject
property is unsuitable for farm/forest purposes only in circumstances where an applicant argues the subject
property is unsuitable for farm/forest purposes because of size or location. COLW failed to explain why the
Hearing Officer should rely upon ORS 215.284 when it appears COLW's argument is actually directed at a relevant
County approval criterion set forth in DCC 18.16.050 G.2.a.
The Hearings Officer finds that DCC 18.16.050 G.2 (as well as ORS 215.284 and DCC 18.16.050 G.2), are not general
tests of unsuitability to be applied in all cases or all circumstances. Rather, the Hearings Officer finds that DCC
18.16.050 G.2.a is limited to the consideration of unsuitability where an applicant is asserting that a site is
unsuitable for farming/timber solely because of the site's size or location. The Hearings Officer, based upon the
evidence in the record of this case, finds that Applicant has not furthered the proposition that any property subject
to this decision is "unsuitable for farm use" solely because of its size or location.
B. GENERAL APPROVAL CRITERIA FINDINGS
Title 18 of the Deschutes County Code, County Zoning
Chapter 18.16, Exclusive Farm Use Zones (EFU)
Section 18.16.030. Conditional uses permitted - High value and non -high value farmland.
The following uses may be allowed in the Exclusive Farm Use zones on either high value farmland or
nonhigh value farmland subject to applicable provisions of the Comprehensive Plan, DCC 18.16.040 and
18.16.050, and other applicable sections of Title 18.
A. Nonfarm dwelling
FINDING: The Applicant proposes to establish three (3) nonfarm dwellings. The proposed dwellings may be
allowed individually as a conditional use if the Applicant satisfies the applicable criteria in Title 18 of the County
Code. The Applicant does not propose to establish a use other than a dwelling under this application.
Section 18.16.040. Limitations on Conditional Uses.
A. Conditional uses permitted by DCC 18.16.030 may be established subject to ORS 215.296 and
applicable provisions in DCC 18.128 and upon a finding by the Planning Director or Hearings
Body that the proposed use:
1. Will not force a significant change in accepted farm or forest practices as defined in ORS
215.203(2)(c) on surrounding lands devoted to farm or forest uses; and
2. Will not significantly increase the cost of accepted farm or forest practices on
surrounding lands devoted to farm or forest uses; and
FINDING: Staff applied an area of analysis that covers all properties within a one -mile radius of the subject
property. This radius has been considered, by the County, to be sufficient to identify farm or forest uses that might
be impacted by a proposed nonfarm dwelling.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 22 of 61
Due to the proximity of each of the Subject Properties to one another, the results of the study area analysis were
substantially the same. Staff addressed (Staff Report, pages 16-19) each tax lot individually where the results
differ. The Hearings Officer finds that the Staff comments, as quoted below, adequately address the issues raised
by this approval criterion. The Staff (Staff Report, pages 16 — 19) comments follow:
"Forest Practices
The closest properties zoned for forest use are approximately 5.39 miles to the west. The predominant tree
species in the surrounding area is juniper, which is not a commercial species, with scattered pine trees in the
area as well. Given the distance to forested lands and the lack of commercially viable tree species in the
surrounding area, staff finds that the proposed nonfarm dwellings will not force a significant change in, or
significantly increase the cost of, accepted forest practices on surrounding lands devoted to forest use.
Farm Practices
The USDA 2017 Census of Agriculture' shows agricultural production in Deschutes County roughly split
between crop and livestock production in economic value. Predominant crop species include forage -land used
for all hay and haylage, wheat for grain; and nursery production. Livestock production is predominated by
cattle and calves, equestrian species, dairy and eggs/poultry.
Within the study area for each nonfarm dwelling, Staff includes a chart below which shows the amount of
acres receiving farm tax deferral and of those, how many acres are irrigated.
Subject Property (Tax Lot)
Deferred Acres
Irrigated Deferred Acres
Tax Lot 100
2,231.45
1,185.77
Tax Lot 200
2,310.04
1,237.77
Tax Lot 300
2,677.71
1,231.77
Farm practices on the surrounding properties are described in the Surrounding Land Use Section, above.
Potential Impacts
Staff finds that the proposed nonfarm dwellings could change accepted farm or forest practices or increase
the cost of accepted farm or forest practices on surrounding lands if it caused a reduction in available
productive farmland, reduced the availability of irrigation water, or introduced conflicting uses. As described
below, the applicant asserts that each subject property is generally unsuitable for farm use in their entirety.
There is nothing in the record indicating a farmer has expressed interest in the proposed building envelope for
farm use and no water rights would be impacted by this proposal.
Residential uses can conflict with farm uses. The record includes information from the Oregon State University
Extension Service describing the types of impacts the farming practices in the surrounding area could generate
on nearby lands. Maintaining irrigated pasture can generate dust from re -seeding, drifting of herbicides from
spraying, vehicle noise from trucks, manure odor from fertilizing, and possible water runoff from irrigation.
Grazing livestock can generate dust, manure odor, possible interference with vehicular traffic, and property
damage if livestock escape. However, staff finds that potential conflicts are mitigated, as follows.
Pursuant to DCC 18.16.050, if these applications are approved, each property owner will be required to sign
and record in the County Clerk's office a document binding the landowner, and the landowner's successors in
4https:Hwww. nass.usda.gov/Publications/AgCensus/2017/OnI i ne_Resources/County_Profiles/Oregon/cp41017.pdf
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 23 of 61
interest, prohibiting them from pursuing a claim for relief or cause of action alleging injury from farming or
forest practices for which no action or claim is allowed under ORS 30.396 or 30.397. The recordation of this
document with the County Clerk helps ensure that the proposed nonfarm dwelling will not significantly increase
the cost of accepted farm or forest practices on surrounding lands devoted to farm use, nor will it significantly
increase the cost of accepted farm practices.
The subject properties are surrounded by farm uses to the north, west, east, and southeast. The closest farm
use is on Map 14-12 Tax Lot 1999, to the east, Map 14-12-30A, Tax Lot 100 to the southeast, and Map 14-12
Tax Lot 702 to the north. The property identified as Map 14-12, Tax Lot 701 to the northeast is currently in
farm use, as it contains large, irrigated pivot fields. As proposed, the building envelopes will be 100 feet or
greater from these farm uses. This distance meets the minimum 100 foot setback required from nonfarm
dwellings to adjacent properties currently employed in farm use and receiving farm tax deferral. Staff finds
this distance will provide a sufficient buffer to mitigate potential use conflicts. As discussed in further detail
below, the location of the building envelope is further influenced by the required siting standards applicable to
new dwellings in the WA Zone.
Within the study area, Staff includes data below for each property as it relates to private EFU lots developed
with dwellings.
Subject Property
Private EFU
Private EFU Tax Lots
Percent of Private
(Tax Lot)
Dwellings
EFU Tax Lots
developed with
dwellings
Tax Lot 100
12
29
41
Tax Lot 200
13
30
43
Tax Lot 300
13
29
43
Based on the data above, there appear to be more undeveloped EFU private parcels than those developed with
residences. It is not clear if the existing residential uses have had a negative impact on farm uses.
As discussed below, of the properties developed with dwellings, the majority constructed in or after 1993 are
nonfarm dwellings (approximately 60 percent). Other dwelling types constructed in or after 1993 including
accessory farm dwellings (20 percent) and one dwelling of an unknown type. The most current dwelling
development trend in the study area appears to be the establishment of nonfarm dwellings. Dwellings
developed from 1979 through 1992 were primarily established as farm dwellings (approximately 71 to 83
percent).
However, Staff asks the Hearings Officer to make specific findings for this criterion."
As noted above, the Hearings Officer finds the Staff evidence and analysis to be adequate to demonstrate this
criterion has been met.
3. That the actual site on which the use is to be located is the least suitable for the
production of farm crops or livestock.
FINDING: The BOCC determined in the Clough decision (File No. 247-15-000035-CU/247-15-000403-A), that when
the general unsuitability criterion of 18.16.050 (G)(1)(a)(iii) is met, the least suitable criterion of Section 18.16.040
(A)(3) above is satisfied as well. The findings under DCC 18.16.050(G)(1)(a)(iii) below are incorporated herein by
reference.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 24 of 61
Section 18.16.050. Standards for Dwellings in the EFU Zones.
Dwellings listed in DCC 18.16.025 and 18.16.030 may be allowed under the conditions set forth below
for each kind of dwelling, and all dwellings are subject to the landowner for the property upon which
the dwelling is placed, signing and recording in the deed records for the County, a document binding the
landowner, and the landowner's successors in interest, prohibiting them from pursuing a claim for relief
or cause of action alleging injury from farming or forest practices for which no action or claim is allowed
under ORS 30.936 or 30.937.
FINDING: As required under this section, Staff recommended a condition of approval requiring the property owner
to sign and record the above document prior to issuance of a building permit for any nonfarm dwelling. The
Hearings Officer finds that with Staff's recommended condition, as set forth below, this criterion can be met.
Farm & Forest Management Easement: Prior to the issuance of any building permit for a nonfarm dwelling,
the property owner shall sign and record in the deed records for the County, a document binding the
landowner, and the landowner's successors in interest, prohibiting them from pursuing a claim for relief or
cause of action alleging injury from farming or forest practices for which no action or claim is allowed under
ORS 30.936 or 30.937. The applicant shall submit a copy of the recorded Farm and Forest Management
Easement to the Planning Division.
G. Nonfarm Dwelling.
1. One single-family dwelling, including a manufactured home in accordance with DCC
18.116.070, not provided in conjunction with farm use may be permitted on an existing
lot or parcel subject to the following criteria:
a. The Planning Director or Hearings Body shall make findings that:
(1) The dwelling or activities associated with the dwelling will not force a
significant change in or significantly increase the cost of accepted
farming practices, as defined in ORS 215.203(2)(c), or accepted forest
practices on nearby lands devoted to farm or forest use.
FINDING: This approval criterion is nearly identical to the approval criterion under DCC 18.16.040(A)(1) and (2).
Those findings are incorporated herein by reference. The Hearings Officer finds with the incorporated findings
this criterion will be met.
(2) The proposed nonfarm dwelling does not materially alter the stability
of the overall land use pattern of the area. In determining whether a
proposed nonfarm dwelling will alter the stability of the land use
pattern in the area, the county shall consider the cumulative impact of
nonfarm dwellings on other lots or parcels in the area similarly situated,
by applying the standards under OAR 660-033-0130(4)(a)(D), and
whether creation of the parcel will lead to creation of other nonfarm
parcels, to the detriment of agriculture in the area.
FINDING: On June 1, 1998, the Land Conservation and Development Commission adopted amendments to the
administrative rules implementing Goal 3, Agricultural Lands (OAR Chapter 660-033) to incorporate case law and
to clarify the analysis under the "stability" approval criterion. The rules continue to apply the three -step "stability"
analysis first articulated in the Land Use Board of Appeals (LUBA) case Sweeten v. Clackamas County, 17 Or LUBA
1234 (1989). OAR 660-033-0130(4)(a) states:
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 2S of 61
(D) The dwelling will not materially alter the stability of the overall land use pattern of the area. In
determining whether a proposed nonfarm dwelling will alter the stability of the land use pattern
in the area, a county shall consider the cumulative impact of possible new nonfarm dwellings
and parcels on other lots or parcels in the area similarly situated. To address this standard, the
county shall:
(i) Identify a study area for the cumulative impacts analysis. The study area shall include
at least 2000 acres or a smaller area not less than 1000 acres, if the smaller area is a
distinct agricultural area based on topography, soil types, land use pattern, or the type
of farm or ranch operations or practices that distinguish it from other, adjacent
agricultural areas. Findings shall describe the study area, its boundaries, the location of
the subject parcel within this area, why the selected area is representative of the land
use pattern surrounding the subject parcel and is adequate to conduct the analysis
required by this standard. Lands zoned for rural residential or other urban or
nonresource uses shall not be included in the study area;
The County applied an area of analysis including all EFU-zoned land located within a one -mile radius of the subject
property's boundaries and including approximately 2,000 acres (hereafter the "Study Area"). The Hearings Officer
finds this study radius is suitable to provide a comprehensive analysis of the character of the area surrounding
each Subject Property because of its significant size and the number of parcels located within it.
The following is a summary of the sizes of private EFU tax lots within the Study Area for each individual Subject
Property below.
Subject Property
EFU-
Private EFU
Size range of
Less than or
20.01 to
Greater than
(Tax Lot)
zoned
Tax Lots
Private EFU
equal to 20
39.99
or equal to 40
Tax Lots
Tax Lots
acres
acres
acres
(acres)
Tax Lot 100
40
29
0.37 acres to
13 (45%)
2 (7%)
14 (48%)
560 acres
Tax Lot 200
41
30
0.37 acres to
13 (43%)
2 (7%)
15 (50%)
560 acres
Tax Lot 300
40
29
0.37 acres to
13 (45%)
2 (7%)
14 (48%)
560 acres
Of the private EFU lots within each Study Area, a majority are greater than or equal to 40 acres in size.
OAR 660-033-0130 (4)(a)(D) [continued]
(ii) Identify within the study area the broad types of farm uses (irrigated or nonirrigated
crops, pasture or grazing lands), the number, location and type of existing dwellings
(farm, nonfarm, hardship, etc.), and the dwelling development trends since 1993.
Determine the potential number of nonfarm/lot of record dwellings that could be
approved under subsections (3)(a) and section 4 of this rule, including identification of
predominant soil classifications, the parcels created prior to January 1, 1993, and the
parcels larger than the minimum lot size that may be divided to create new parcels for
nonfarm dwellings under ORS 215.263(4). The findings shall describe the existing land
use pattern of the study area including the distribution and arrangement of existing
uses and the land use pattern that could result from approval of the possible nonfarm
dwellings under this subparagraph;
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 26 of 61
FINDINGS: Staff (Staff Report, pages 19 — 26) provided a comprehensive recitation and analysis of factors relating
to this approval criterion. The Hearings Officer finds the Staff information and analysis is adequate to justify the
Hearings Officer to conclude this criterion is met. The Hearings Officer finds that there is no evidence or argument
in the record disputing the Staff information and analysis set forth in full below:
Farm Uses
The EFU-zoned lands in the study area that are engaged in farm use mainly consist of farming in the form of
large -acreage pivot fields including turf production, hay and alfalfa production, vineyards, and keeping horses
and/or cattle.
Within the study area for Tax Lot 100, 200 and 300, there are 24, 25, and 24 privately -owned tax lots that are
receiving farm tax deferral, respectively. Of these privately -owned tax lots receiving farm tax deferral, 14 to
15 have water rights.
The total amount of water rights on these farm tax -deferred properties ranges from 1,185.77 to 1,237.77
acres. Based on the amount of irrigation and the size of the parcels in the study area, an estimated 1,185.77
to 1,237.77 acres (acreage that is possibly being irrigated) are engaged in irrigated farm use. According to
Deschutes County GIS, a portion of the study area is in the Three Sisters Irrigation District.
Existing Dwellings
The chart below summarizes the types of dwellings constructed within the study area between 1979 and 1993:
Subject
Private EFU
Dwelling built
Dwelling built ,
Dwelling
Property
Dwellings
prior to 1979
between 1979
built from
(Tax Lot)
and 1992
1993 to
present
Tax Lot 100
12
1
6
5
Tax Lot 200
13
1
7
5
Tax Lot 300
13
1
7
5
The one dwelling developed prior to 1979 predated the County's EFU Zone and therefore was not subject to
EFU zoning requirements.
Within the study area for all three tax lots, the 6 to 7 dwellings developed from 1979 through 1992 included 5
farm dwellings, 1 accessory farm dwelling, and 1 dwelling of an unknown type. Between this time period, it
appears the dominant dwelling type was a farm dwelling.
Staff notes that dwellings constructed up until the late 1980s in this time period were not necessarily reviewed
as either farm or nonfarm dwellings.
Of the 5 dwellings constructed in 1993 or after, 3 were nonfarm dwellings, 1 was an accessory farm dwelling
and 1 is a dwelling of an unknown type.
Dwelling Development Trends Since 1993
As discussed above, those 5 dwellings constructed in or after 1993 were a mixture of nonfarm (60 percent),
and accessory farm dwellings (20 percent). One dwelling is of an unknown type. For this reason, staff finds the
most current dwelling development trend in the study area is the establishment of nonfarm dwellings.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 27 of 61
Potential Nonfarm Dwellings
To address this criterion, staff reviewed the study area to determine how many properties are "similarly
situated to the subject property". Staff finds that privately owned properties in the EFU Zone that are not
presently developed with a dwelling are similarly situated, in that they may be eligible for a nonfarm dwelling.
Based on staffs review, 13 to 14 properties, excluding the subject properties, meet these characteristics
including one property that has already been approved for nonfarm dwellings but have not been fully
constructed yet. Therefore, 12 to 13 possible new nonfarm dwellings could be developed on similarly situated
properties.
It is not clear whether a nonfarm dwelling could be approved on these properties since each property would
be reviewed on its own merits. Any proposed nonfarm dwellings on the above -referenced properties must be
reviewed for their effect on the stability of the land use pattern, whether they are on land generally unsuitable
for the production of crops, livestock or merchantable trees, and whether they will cause a significant change
in or significantly increase the cost of accepted farming practices on adjacent land. Staff notes many of the
vacant, privately -owned EFU lots are owned by Two Canyons LLC or Deep Canyon LLC and contain large pivot
fields in active farm use. For the purposes of this review, staff assumes all identified properties could be
approved for a nonfarm dwelling.
Potential Nonfarm Parcels
In the EFU Zone, two types of land divisions creating new nonfarm parcels are possible: those where the
parent parcel is irrigated (DCC 18.16.055(B)) and those where the parent parcel is not irrigated (DCC
18.16.055(C)). OAR 660-033-130(4)(c)(C) sets the rules for the stability analysis of properties outside of the
Willamette Valley:
'The dwelling will not materially alter the stability of the overall land use pattern of the area. In
determining whether a proposed nonfarm dwelling will alter the stability of the land use pattern in the
area, a county shall consider the cumulative impact of nonfarm dwellings on other lots or parcels in the
area similarly situated by applying the standards set forth in paragraph (4)(a)(D) of this rule. if the
application involves the creation of a new parcel for the nonfarm dwelling, a county shall consider whether
creation of the parcel will lead to creation of other nonfarm parcels, to the detriment of agriculture in the
area by applying the standards set forth in paragraph (4)(a)(D) of this rule; and [... ]' (emphasis added)
In the case Elliott v. Jackson County, 43 Or LUBA 426 (2003), LUBA found that OAR 660-033-0130(4)(a)(D)
requires that the stability analysis for nonfarm dwellings needs to consider the potential for newly created
nonfarm parcels. In part, LUBA summarizes that decision as follows:
OAR 660-033-0130(4)(a)(D) requires that the county's stability analysis consider the potential for new
nonfarm parcels in the area, whether or not the applicant proposes a new nonfarm parcel.
OAR 660-033-0130(4)(c)(C) requires compliance with the standards of OAR 660-033-0130(4)(a)(D), and
therefore also requires consideration of potential new nonfarm parcels, whether or not a new nonfarm
parcel is proposed.
OAR 660-033-0130(4)(a)(D) and (c)(C) require consideration of the cumulative impact of a proposed
nonfarm dwelling on lots or parcels that are "similarly situated." Because OAR 660-033-0130(4)(a)(D)(ii)
expressly requires consideration of whether parcels larger than the minimum parcel size may be divided
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 28 of 61
to allow nonfarm dwellings, the scope of "similarly situated" parcels is not limited to substandard parcels
or parcels that are the same size as the subject property.
In consideration of the above and of the privately owned properties in the study area, staff finds:
• There are no nonirrigated parcels between 85 and 90 acres in the study area capable of being partitioned
under a nonirrigated land division to create a single nonfarm parcel. There are no nonirrigated parcels
over 90 acres in the study area capable of being partitioned under a nonirrigated land division to create
two nonfarm parcels.
• There are no parcels equal to or greater than 40 acres and less than or equal to 80 acres in the study area
that may be capable of being partitioned under a nonirrigated land division to create a single nonfarm
parcel.
• There are 2 to 3 parcels that are less than 80 acres in the study area and meet the minimum irrigated acres
for the subzone that may be capable of being partitioned under an irrigated land division based on size to
create a single nonfarm parcel.
• There are 11 parcels that are equal to or greater than 80 acres in the study area. Approximately 6 of these
parcels appear to meet the minimum irrigated acres for the subzone that may be capable of being
partitioned under an irrigated land division to each create two nonfarm parcels. It is important to note
that many of the EFU parcels within the study area contain two EFU subzones; Lower Bridge and
Sisters/Cloverdale. Each of these subzones have differing irrigated acreage requirements; 130 acres and
63 acres, respectively.
The nnitentinlhi rlivicihly nnrralc nro rmmpnserl of class 3 to 7 soils thnt nre rated hnth high -value and non -high
value farmland, so it is unknown if they would meet the "generally unsuitable" criteria of 18.16.055(B)(2)(a)(v)
and 18.16.050(G)(2)(b). To be eligible for division the parent parcel must have been lawfully created prior to
July 1, 2001. In addition, new parcels must meet certain access and frontage requirements. Staff notes that
the eligibility of other properties for land use approvals or land divisions cannot be formally determined as part
of this process. This assumed eligibility or ineligibility of these properties for land use approvals or land divisions
is based on publicly available information and is not binding or final on these other properties.
Therefore, this analysis shows that between 14 to 15 new nonfarm dwelling parcels could potentially be
created from land divisions.
Potential Lot of Record Dwellings
Under Section 18.16.050(E) and OAR 660-033-130(3), a lot of record dwelling may be sited on non -high value
farmland in the EFU Zone if the parcel was created and acquired by the current owner prior to January 1, 1985,
has continuously been owned by the present owner since then, and if the lot or parcel on which the dwelling
will be sited was part of a tract on November 4, 1993, no dwelling exists on another lot or parcel that was part
of that tract. Under Section 18.16.050(F) and OAR 660-033-130(3)(c), a lot of record dwelling may be sited on
high value farmland if it meets the criteria for a lot of record dwelling on non -high value farmland and the
Planning Division finds the parcel cannot practically be managed for farm use "due to extraordinary
circumstances inherent in the land or its physical setting," such as "very steep slopes, deep ravines or other
similar natural or physical barriers."
The Planning Division has previously determined that lot of record dwellings can be difficult to obtain, given
the requirement for ownership prior to 1985 and the land cannot be suitable for farming based on the above
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 29 of 61
factors. Some parcels may qualify for a lot of record dwelling, but without a specific analysis of each and every
parcel, this determination cannot be concluded. None of the dwellings approved within the Study Area were
approved as a lot of record dwelling.
Result From Approval of the Possible Nonfarm Dwellings
The land use pattern and character of the study area is predominately a mixture of large, irrigated pivot fields
and crop production.
Including the subject application, approximately 30 to 31 new nonfarm dwellings could be established in the
study area on existing and potential future nonfarm parcels. Given the relatively limited number of existing
dwellings in the study area and the relatively high number of potential nonfarm dwellings, the proposed
nonfarm dwellings may cause a substantial change in the land use pattern of the area. However, staff asks the
Hearings Officer to make specific findings on this issue.
There has been 5 dwellings constructed in the study area since 1993, over a 30 year span. It is unclear to staff
if the land use pattern is generally stable. The majority of those dwellings were nonfarm dwellings.
For this reason, staff finds the most current dwelling development trends in the study area is the establishment
of nonfarm dwellings. Additionally, it does not appear the existing and newly approved dwellings have
precluded farm uses in the study area.
There are both irrigated and nonirrigated lands in the area, and most of the nonirrigated parcels are already
developed with dwellings. Many of the irrigated parcels are developed with farm dwellings. Staff notes that
no farm dwellings have been approved in the area since 1993, and no farm dwellings have been approved
since 1995 when the farm dwelling standards included significant changes.
Staff asks the Hearings Officer to make specific findings on whether the proposed dwelling will be consistent
with the land use pattern of the area by allowing a nonfarm dwelling on an unproductive portion of the
property.
As noted above, the Hearings Officer finds that the above -quoted Staff information and analysis is comprehensive
and adequately addressed this approval criterion. The Hearings Officer, based upon the above -quoted Staff
material, finds OAR 660-033-0130 (4)(a)(D)(ii) is properly addressed and satisfied.
OAR 660-033-0130 (4)(a)(D) [continued]
(iii) Determine whether approval of the proposed nonfarm/lot of record dwellings together
with existing nonfarm dwellings will materially alter the stability of the land use pattern
in the area. The stability of the land use pattern will be materially altered if the
cumulative effect of existing and potential nonfarm dwellings will make it more difficult
for the existing types of farms in the area to continue operation due to diminished
opportunities to expand, purchase or lease farmland, acquire water rights or diminish
the number of tracts or acreage in farm use in a manner that will destabilize the overall
character of the study area;
FINDING: Staff (Staff Report, pages 26 -27) provided a comprehensive recitation and analysis of factors relating to
OAR 660-033-0130 (4)(a)(D)(iii). The Hearings Officer finds the Staff information and analysis is adequate to justify
the Hearings Officer to conclude OAR 660-033-0130 (4)(a)(D)(iii) is satisfied. The Hearings Officer finds that there
is no evidence or argument is in the record disputing the Staff information and analysis set forth in full below:
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 30 of 61
"The cumulative effect of existing and potential nonfarm dwellings will increase the number of dwellings in the
study area from 12 to 53. Such approvals may "materially alter the stability of the land use pattern in the area"
by making it more difficult for the existing farms to continue operation due to diminished opportunities to
expand, purchase or lease farmland, acquire water rights or by diminishing the number of tracts or acreage in
farm use. As stated above, it is not clear to staff if such dwellings could be approved as nonfarm dwellings.
However, staff notes nonfarm dwelling approvals would be limited to lands generally unsuitable for farm use
and, as such, would not reduce available farmland or the number of tracts or acreage in farm use, individually
or cumulatively.
Under Dowrie v. Benton County (38 Or LUBA 93, 2000), the County must determine whether the proposed
nonfarm dwellings will encourage similar uses or divisions on similarly situated parcels in the area:
Dowrie v. Benton County, 38 Or LUBA 93 (20001. A local government cannot reach supportable conclusions
as to the stability of the land use pattern required by OAR 660-033-0130(4)(a)(D) unless it adequately
defines the study area and determines not only what the land use pattern is, but also whether the proposed
use or land division will encourage similar uses or divisions on similarly situated parcels in the area.
It is not clear to staff if the addition of each individual dwelling, for a total of three, would tip the balance from
resource to non -resource use. Air photos suggest the farm use in the area has remained relatively stable for
many decades. There have been 3 nonfarm dwellings approved since 2000 within the study area.
Given the 3 nonfarm dwellings approved since 2000, it does not appear to staff that the approval of the
proposed nonfarm dwellings will set a precedent for the wholesale approval of nonfarm dwellings to the
detriment of surrounding farming. The parcels currently in farm use will likely remain relatively stable, with
little or no expansion of farm use in the area, given the topography, soil types, availability of water rights.
Parcel sizes vary within the study area with a relatively even mix of large and small parcels. The properties
capable of being farmed appear to already be farmed. Additionally, no response to the notice of application
or land use action sign was received by nearby farmers requesting the subject property be made available for
farm use. The approval of the proposed dwellings will not affect the amount of farming or the type of farming
in the study area. Lastly, nonfarm dwellings are reviewed on a case -by -case basis where each proposed
nonfarm dwelling would need to demonstrate compliance with all of the applicable criteria for approval. For
the foregoing reasons, staff finds that approval of the proposed nonfarm dwellings will not destabilize the
mixture of agricultural and residential character of the surrounding area.
However, Staff asks the Hearings Officer to make specific findings on whether the nonfarm dwellings, if
approved, would materially alter the stability of the land use pattern in the area."
The Hearings concurs with the above -quoted Staff information, analysis and conclusions. The Hearings Officer
finds that if the Applicant's proposal is approved if such approval will not materially alter the stability of the land
use pattern in the area.
DCC 18.16.050 G.1.a. [continued]
(3) The proposed nonfarm dwelling is situated on an existing lot or parcel, or a portion
of a lot or parcel, that is generally unsuitable for the production of farm crops and
livestock, or merchantable tree species, considering the terrain, adverse soil or land
conditions, drainage and flooding, vegetation, location and size of the tract.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 31 of 61
FINDING: The Hearings Officer incorporates, as additional findings for this section, the Preliminary Findings titled
"Unsuitability for Farm Use- Use in Conjunction with Adjacent/Nearby Properties" (Preliminary Findings section A.4).
Staff (Staff Report, pages 27 — 28) referenced Oregon LUBA decisions it believed to be relevant to this criterion.
The Hearings Officer sets for Staff's summary of those cases below:
Griffin v. Jackson County, 48 Or LUBA 1 (2004). The question is not whether land is generally unsuitable for
all farm use, the question is whether the land is generally unsuitable to produce crops, livestock or
merchantable trees.
Dorvinen v. Crook County, 33 Or LUBA 711 (1997); (discussinq legislative history). ORS 215.284(2)(b) allows
nonfarm dwellings to be sited on unproductive parts of the productive farm land on lands outside the
Willamette Valley.
Williams v. Jackson County, 55 Or LUBA 223 (2007). A parcel can satisfy the generally unsuitable standard
even if portions of the parcel contain areas that, if considered alone, do not satisfy the standard.
Frazee v. Jackson County, 45 Or LUBA 263 (2003). Where a nonfarm dwelling is proposed to be sited on
unproductive parts of the productive farm land on lands outside the Willamette Valley, the county is to
focus on the productivity of the part of the property selected for nonfarm development and should not
consider the suitability of the rest of the parcel or tract.
Applicant requested Staff and the Hearings Officer to focus on the "entire parcel" for each Subject Property as
opposed to considering just the proposed "building envelope.' Staff (Staff Report, page 27) did focus its analysis
on the suitability of the entire property for each Subject Property. The Hearings Officer finds Applicant and Staff's
focus on the 'entire parcel" for the review of this criterion is appropriate.
Staff (Staff Report, pages 28 — 37) provide a comprehensive review and analysis of each of the relevant DCC
18.16.050 G.1.(3) factors. The Staff review and analysis is quoted, in full, below:
"Adverse Soil or Land Conditions
The applicant submitted three soil studies prepared by Brian T. Rabe, CPSS, WWS of Valley Science and
Engineering. The studies, each dated October 21, 2021, provide a detailed analysis of the soils on each of the
subject properties. The submitted soils report shows that the subject properties contain the following soil types:
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 32 of 61
Figure 7 illustrates the location of soil units on the property.
The soil study states on Page 4:
All 4.98 acres of the Site were evaluated in detail, including 1.88 acres of Lickskillet soils. The remaining
3.10 acres consisted of soils more like Deskamp in areas with slightly deeper soils and fewer coarse
fragments between delineations of Lickskillet soils and the property boundary or right right-of-way. A small
delineation of Deskamp (0.79 acres) in the southeastern corner of the parcel is across an access road from
an adjacent area that appears to have been disked or mowed but not irrigated in the past. The delineations
of Deskamp soils are relatively small and irregular in shape and, as such, are generally unsuitable for farm
use in conjunction with adjacent properties. Therefore, the entire area evaluated is considered "generally
unsuitable" for farm use.
Based on the description above contained in the soil study and corresponding acreages of the soil units
provided in the soils map above, staff finds the subject property contains the following acreages:
Soil Type
Classification `
Area;; (ages)
36B
Deskamp Loamy Sand
2.27
36C
Deskamp Loamy Sandy
0.83
81D
Lickskillet-Rock Outcrop Complex
1.18
81E
Lickskillet-Rock Outcrop Complex
0.70
Based on the chart above and the soil map included in the soil study, the subject property contains a total of
3.1 acres of 36BIC (62 percent), and 1.88 acres of 81DIE (38 percent). Therefore, based on these acreages, it
appears the subject property is comprised primarily of Deskamp Loamy Sand.
The applicant's supplemental burden of proof states in part:
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 33 of 61
As used in the soil report, Table 3 and Figure 4 (Exhibit B (TL 100), C (TL 200), D (TL 300), Brian Rabe has
provided the following information:
The data in Table 3 provides the LCC for the soils by name: Deskamp, which is Map Unit 36 — slope phases
A, B, or C, all of which are Class 6; Lickskillet, which is Map Unit 81— slope Phases C, D, E, or F, all of which
are Class 7, Rock Outcrop, which is Map Unit 109, which is Class 8.
Based on the acreage amounts summarized above, the subject property contains predominantly Soil Unit 36.
According to Mr. Rabe, Soil Unit 36 is Class 6, regardless of slope. DCC 18.16.050(G)(2)(b) above specifies that
a parcel is presumed suitable for the production of farm crops and livestock if it is predominately composed of
LCC 1-6 soils.
However, staff notes the soil study states in part, "The delineations of Deskamp soils are relatively small and
irregular in shape and, as such, are generally unsuitable for farm use in conjunction with adjacent properties."
However, this statement appears to consider the suitability of the soils in conjunction with adjacent properties
whereas the criteria requires an analysis of the suitability of the entire property or a specific building envelope.
In this case, the applicant has chosen to focus on the suitability of the entire property.
Staff asks the Hearings Officer to make specific findings on whether the applicant has demonstrated that the
proposed nonfarm dwelling is situated on an existing lot or parcel, or a portion of a lot or parcel, that is
generally unsuitable for the production of farm crops and livestock, or merchantable tree species, considering
the terrain, adverse soil or land conditions, drainage and flooding, vegetation, location and size of the tract.
Figure 8 - Property #2 (Tax Lot 200)
Figure 8 illustrates the location of soil units on the property.
The soil study states on Page 4:
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 34 of 61
All 4.98 acres of the Site were evaluated in detail, including 1.65 acres of Lickskillet soils. The remaining 3.33
acres consisted of soils more like Deskamp in areas with slightly deeper soils and fewer coarse fragments
between delineations of Lickskillet soils and the property boundary or right right-of-way. Small delineations of
Deskamp (1.24 and 1.95 acres) in the northeast corner of the parcel are across an access road from an adjacent
area that appears to have been disked or mowed but not irrigated in the past. The delineations of Deskamp
soils are relatively small and irregular in shape and, as such, are generally unsuitable for farm use in
conjunction with adjacent properties. Therefore, the entire area evaluated is considered "generally unsuitable"
for farm use.
Based on the description above contained in the soil study and corresponding acreages of the soil units
provided in the soils map above, staff finds the subject property contains the following acreages:
Soil Type
Classification `
Area (acres)
36B
Deskamp Loamy Sand
1.95
36C
Deskamp Loamy Sandy
1.38
81D
Lickskillet-Rock Outcrop Complex
1.08
81E
Lickskillet-Rock Outcrop Complex
0.57
Based on the chart above and the soil map included in the soil study, the subject property contains a total of
3.33 acres of 36BIC (67 percent), and 1.65 acres of 81DIE (33 percent). Therefore, based on these acreages, it
appears the subject property is comprised primarily of Deskamp Loamy Sand.
The applicant's supplemental burden of proof states in part:
As used in the soil report, Table 3 and Figure 4 (Exhibit B (TL 100), C (TL 200), D (TL 300), Brian Rabe has
provided the following information:
The data in Table 3 provides the LCC for the soils by name: Deskamp, which is Map Unit 36 — slope phases
A, B, or C, all of which are Class 6, Lickskillet, which is Map Unit 81— slope Phases C, D, E, or F, all of which
are Class 7, Rock Outcrop, which is Map Unit 109, which is Class 8.
Based on the acreage amounts summarized above, the subject property contains predominantly Soil Unit 36.
According to Mr. Rabe, Soil Unit 36 is Class 6, regardless of slope. DCC 18.16.050(G)(2)(b) above specifies that
a parcel is presumed suitable for the production of farm crops and livestock if it is predominately composed of
LCC 1-6 soils.
However, staff notes the soil study states in part, "The delineations of Deskamp soils are relatively small and
irregular in shape and, as such, are generally unsuitable for farm use in conjunction with adjacent properties."
However, this statement appears to consider the suitability of the soils in conjunction with adjacent properties
whereas the criteria requires an analysis of the suitability of the entire property or a specific building envelope.
In this case, the applicant has chosen to focus on the suitability of the entire property.
Staff asks the Hearings Officer to make specific findings on whether the applicant has demonstrated that the
proposed nonfarm dwelling is situated on an existing lot or parcel, or a portion of a lot or parcel, that is
generally unsuitable for the production of farm crops and livestock, or merchantable tree species, considering
the terrain, adverse soil or land conditions, drainage and flooding, vegetation, location and size of the tract.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 35 of 61
Figure 9 illustrates the location of soil units on the property.
- -
The 5011 SCUC1y States Gi-
1 ruyr 4:
All 5.01 acres of the Site were evaluated in detail, including 2.13 acres of Lickskillet soils and 0.48 acres of
Rock outcrop. The remaining 2.40 acres, or 47.9% consisted of soils more like Deskamp in areas with
slightly deeper soils and fewer coarse fragments between delineations of Lickskillet soils and the property
boundary or right right-of-way. The delineations of Deskamp soils are relatively small and irregular in
shape and, as such, are generally unsuitable for farm use in conjunction with adjacent properties (none of
which appear to be or ever have been farmed). Therefore, the entire area evaluated is considered
"generally unsuitable" for farm use.
Based on the description above contained in the soil study and corresponding acreages of the soil units
provided in the soils map above, staff finds the subject property contains the following acreages:
Based on the chart above and the soil map included in the soil study, the subject property contains a total of
2.4 acres of 36BIC (48 percent), 2.13 acres of 81DIE (43 percent), and 0.48 acres of 109 (10 percent). Lickskillet-
Rock outcrop complex is rated Class 7 and 8 when not irrigated. There is no rating for irrigated soil of this type.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 36 of 61
The applicant's supplemental burden of proof states in part:
As used in the soil report, Table 3 and Figure 4 (Exhibit B (TL 100), C (TL 200), D (TL 300), Brian Rabe has
provided the following information:
The data in Table 3 provides the LCC for the soils by name: Deskamp, which is Map Unit 36 — slope phases
A, B, or C, all of which are Class 6; Lickskillet, which is Map Unit 81— slope Phases C, D, E, or F, all of which
are Class 7; Rock Outcrop, which is Map Unit 109, which is Class 8.
The combination of the Rock Outcrop and Lickskillet soils total 2.61 acres or 52 percent of the subject property.
In consideration of the soil study maps and ratings, staff finds the subject property is predominately composed
of class 7 and 8 soils and is therefore "generally unsuitable"for the production of farm crops and livestock.
Farm Crops
Tax Lot 100
The soil study in the record indicates the soils within the subject property consist of the following two soil units:
Deskamp-Loamy Sand and Lickskillet-Rock Outcrop. Based on the chart above and the soil map included in the
soil study, the subject property contains a total of 3.1 acres of 36BIC (62 percent), and 1.88 acres of 81DIE (38
percent). Therefore, based on these acreages, it appears the subject property is comprised primarily of
Deskamp Loamy Sand. Deskamp Loamy Sand (Soil Unit 36) is rated LCC 6. As noted above, the approval
criterion presumes LCC 1 through 6 soils are suitable for farm use.
It is not clear to staff that Tax Lot 100 is not suitable for the production of farm crops. Staff asks the Hearings
Officer to make specific findings on whether the applicant has demonstrated that the proposed nonfarm
dwelling is situated on an existing lot or parcel, or a portion of a lot or parcel, that is generally unsuitable for
the production of farm crops and livestock, or merchantable tree species, considering the terrain, adverse soil
or land conditions, drainage and flooding, vegetation, location and size of the tract.
Tax Lot 200
The soil study in the record indicates the soils within the subject property consist of the following two soil units:
Deskamp-Loamy Sand and Lickskillet-Rock Outcrop. Based on the chart above and the soil map included in the
soil study, the subject property contains a total of 3.33 acres of 36BIC (67 percent), and 1.65 acres of 81DIE
(33 percent). Therefore, based on these acreages, it appears the subject property is comprised primarily of
Deskamp Loamy Sand. Deskamp Loamy Sand (Soil Unit 36) is rated LCC 6. As noted above, the approval
criterion presumes LCC 1 through 6 soils are suitable for farm use.
It is not clear to staff that Tax Lot 200 is not suitable for the production of farm crops. Staff asks the Hearings
Officer to make specific findings on whether the applicant has demonstrated that the proposed nonfarm
dwelling is situated on an existing lot or parcel, or a portion of a lot or parcel, that is generally unsuitable for
the production of farm crops and livestock, or merchantable tree species, considering the terrain, adverse soil
or land conditions, drainage and flooding, vegetation, location and size of the tract.
Tnx i nt .inn
The soil study in the record indicates the soils within the subject property consist of the following three soil
units: Deskamp-Loamy Sand, Lickskillet-Rock Outcrop, and Rock Outcrop. Based on the chart above and the
soil map included in the soil study, the subject property contains a total of 2.4 acres of 36BIC (48 percent), 2.13
acres of 81DIE (43 percent), and 0.48 acres of 109 (10 percent).
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 37 of 61
The combination of the Rock Outcrop and Lickskillet soils total2.61 acres or 52 percent of the subject property.
Rock Outcrop and Lickskillet are reated LCC 7 and 8. In consideration of the soil study maps and ratings, staff
finds the subject property is predominately composed of class 7 and 8 soils and is therefore "generally
unsuitable"for the production of farm crops and livestock.
Consequently, staff finds Tax Lot 300 is not suitable for the production of farm crops.
Livestock Production
Nonirrigated soils in Deschutes County are agriculturally suitable only as dry range land, and then only on a
limited basis. Estimates on the value of beef production are based on the following assumptions, which have
been derived through consultation with OSU Extension Service:
• One AUMS is the equivalent to the forage required for a 1000 lb. Cow and calf to graze for 30 days (900
pounds forage).
• On good quality forage, an animal unit will gain 2 pounds per day.
• Two animal units will eat as much in one month as one animal unit will eat in two months.
• Forage production on dry land is not continuous: Once the forage is eaten, it generally will not grow back
until the following spring.
• An average market price for beef is $1.15 per pound.
The NRCS Rangeland and Forest Understory Productivity and Plant Composition table (September 18, 2015)
provides forage capability for soil types, expressed in annual dry -weight production.
Tax Lot 100
The entire property is comprised of two soil types: 36B/C, Deskamp-sandy loam, and 81D/E, Lickskillet-Rock
Outcrop. The soil study states that the 36 soil has a forage capability of 900 lbs. per acre for a "normal year"
and 81 soil has a forage capability of 700 lbs. per acre for a "normal year."
It takes about 900 lbs. of forage to sustain a cow and calf for a month (one animal unit month, or AUM). So,
the portion of the property comprised of 36 soils would provide the equivalent of 1.0AUM per acre. The portion
of the property classified as 81 soils would provide an equivalent of 0.78 AUM per acre for a "normal year."
Based on the OSU and NRCS assumptions, the value of beef production on the property, considering the mix of
soils, can be calculated using the following formula:
(30 days) • (2 lbs./day/acre) = 60 lbs. beef/acre
1.0 AUM per acre and 0.78 AUM per acre
The entire property is 4.98 acres in size.
(60 lbs. beef per acre)(4.98 acres)(1.0 AUM per acre)($1.15 per lbs.) _ $344
(60 lbs. beef per acre)(4.98 acres)(0.78 AUM per acre)($1.15 per lbs.) _ $268
5 Animal Unit Month
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 38 of 61
Thus, the total gross beef production potential for the entire property would be between approximately $268
and $344 annually. This figure represents gross income and does not take into account any fencing costs, land
preparation, purchase costs of livestock, veterinary costs, or any other costs of production. This calculation is
also based on a simplified scenario where the property is entirely comprised of NRCS-rated soils which produce
forage for livestock, which as the soil study shows is not necessarily the case. The area has little forage for
livestock and may support only minimal dry land grazing. For these reasons, staff finds the soils in this property
- are generally unsuitable for the production of livestock.
Tax Lot 200
The entire property is comprised of two soil types: 36B/C, Deskamp-sandy loam, and 81D/E, Lickskillet-Rock
Outcrop. The soil study states that the 36 soil has a forage capability of 900 lbs. per acre for a "normal year"
and 81 soil has a forage capability of 700 lbs. per acre for a "normal year."
It takes about 900 lbs. of forage to sustain a cow and calf for a month (one animal unit month, or AUM). So,
the portion of the property comprised of 36 soils would provide the equivalent of 1.0ALIM per acre. The portion
of the property classified as 81 soils would provide an equivalent of 0.78 AUM per acre for a "normal year."
Based on the OSU and MRCS assumptions, the value of beef production on the property, considering the mix of
soils, can be calculated using the following formula:
(30 days) • (2 lbs./day/acre) = 60 lbs. beef/acre
1.0 AUM per acre and 0.78 AUM per acre
The entire property is 4.98 acres in size.
(60 lbs. beef per acre)(4.98 acres)(1.0 AUM per acre)($1.15 per lbs.) _ $344
(60 lbs. beef per acre)(4.98 acres)(0.78 AUM per acre)($1.15 per lbs.) _ $268
Thus, the total gross beef production potential for the entire property would be between approximately $268
and $344 annually. This figure represents gross income and does not take into account any fencing costs, land
preparation, purchase costs of livestock, veterinary costs, or any other costs of production. This calculation is
also based on a simplified scenario where the property is entirely comprised of NRCS-rated soils which produce
forage for livestock, which as the soil study shows is not necessarily the case. The area has little forage for
livestock and may support only minimal dry land grazing. For these reasons, staff finds the soils in this property
are generally unsuitable for the production of livestock.
Tax Lot 300
The entire property is comprised of three soil types: 36B/C, Deskamp-sandy loam, 81C/D, Lickskillet-Rock
Outcrop, and 109, Rock Outcrop. The soil study states that the 36 soil has a forage capability of 900 lbs. per
acre for a "normal year" and 81 soil has a forage capability of 700 lbs. per acre for a "normal year." Rock
outcrop does not have a forage capability.
It takes about 900 lbs. of forage to sustain a cow and calf for a month (one animal unit month, or AUM). So,
the portion of the property comprised of 36 soils would provide the equivalent of 1.0AUM per acre. The portion
of the property classified as 81 soils would provide an equivalent of 0.78 AUM per acre for a "normal year."
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 39 of 61
Based on the OSU and NRCS assumptions, the value of beef production on the property, considering the mix of
soils, can be calculated using the following formula:
(30 days) • (2 lbs./day/acre) = 60 lbs. beef/acre
1.0 AUM per acre and 0.78 AUM per acre
The entire property is 5.01 acres in size.
(60 lbs. beef per acre)(5.01 acres)(1.0 AUM per acre)($1.15 per lbs.) _ $346
(60 lbs. beef per acre)(5.01 acres)(0.78 AUM per acre)($1.15 per lbs.) _ $270
Thus, the total gross beef production potential for the entire property would be between approximately $270
and $346 annually. This figure represents gross income and does not take into account any fencing costs, land
preparation, purchase costs of livestock, veterinary costs, or any other costs of production. This calculation is
also based on a simplified scenario where the property is entirely comprised of NRCS-rated soils which produce
forage for livestock, which as the soil study shows is not necessarily the case. The area has little forage for
livestock and may support only minimal dry land grazing. For these reasons, staff finds the soils in this property
are generally unsuitable for the production of livestock.
Based on the information and case law cited above, staff finds the subject properties are not generally suitable
for production of livestock based on the total gross beef production potential noted above.
Merchantable Trees
The majority of trees on -site are juniper trees. Juniper trees are not a commercially viable tree. None of the soil
units present are rated for forest productivity. For this reason, staff finds the subject property is not suitable
for the production of merchantable trees.
Building Envelope
In Wetherell v. Douglas County, LUBA found that "the portion of the parcel that is 'generally unsuitable' must
be large enough to include not only the dwelling, but essential or accessory components of that dwelling."
Staff reads this decision to include the dwelling, detached residential -associated buildings (including garages),
well, septic system, drainfield, and the septic reserve area, as essential or accessory components of the
dwelling. LUBA however, expressly excluded driveways from "essential or accessory components of the
dwelling". The subject property can reasonably be expected to accommodate these essential and accessory
components of a dwelling."
Staff, in the above -quoted comments, asked the Hearings Officer to respond to a number of issues. The Hearings
Officer will address Staff's issues in the order raised.
Staff (Staff Report, page 29), with respect to Subject Property #1 (Tax Lot 100) referenced a statement, included
in the Applicant's soil report (See, Applicant submission 2023-04-19 (pages 34 et. seq.]), indicating that the soils
found were "generally unsuitable for farm use in conjunction with adjacent properties." Staff asked the Hearings
Officer
"to make specific findings on whether the applicant has demonstrated that the proposed non farm dwelling is
situated on an existing lot or parcel, or a portion of a lot or parcel, that is generally unsuitable for the
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 40 of 61
production of crops and livestock, or merchantable tree species, considering the terrain, soil or land conditions,
drainage and flooding, vegetation, location and size of tract."
The Hearings Officer reviewed carefully the Brian T. Rabe soil study (Exhibit 2 to Application Materials, Valley
Science and Engineering) and Applicant's Supplemental Burden of Proof Statement (pages 8 -13). The Hearings
Officer finds no evidence in the record, submitted by a person/entity qualified to provide a professional soil
classification/analysis or study that disputes or challenges the conclusions set forth in the Rabe soil study or the
conclusions drawn from that study by Applicant.
The Hearings Officer, relying upon the Rabe Soil Study, finds that the soil scientist considered the "entire" Subject
Property #1 and not any identified or proposed building envelope. The Hearings Officer finds that the use of the
phrase "in conjunction" was not used, in the Rabe Soil Study, in a restrictive or limiting sense. The Hearings Officer
finds the "in conjunction" language was used in the Rabe Soil Study on in the context of Deskamp soils and not in
the context of the overall Subject Property.
The Hearings Officer finds the Rabe Soil Study clearly states that it considered "the entire area evaluated." The
Hearings Officer finds the Rabe Soil Study concluded that the Subject Property predominately consists of soils
generally unsuitable for farming and the production of merchantable tree species. The Hearings Officer finds no
persuasive evidence in the record to dispute the conclusions expressed by the professional soil scientist in the
Rabe Soil Study. Further, the Hearings Officer finds that the Rabe Soil Study investigated and considered, in
arriving at its conclusion, the terrain, adverse soil or land conditions, drainage, flooding and vegetation.
The Hearings Officer notes that Staff made the same request to the Hearings Officer, as discussed above, related
to Subject Property #2 (Tax Lot 200). The Hearings Officer conducted a review of the Rabe Soil Study and the
Applicant's Supplemental Burden of Proof Statement in the context of Subject Property #2. The Hearings Officer
finds, as set forth above, that the soil scientist considered the "entire" Subject Property #2 and concluded that
the "entire" property was unsuitable for farming and the production of merchantable tree species. Further, the
Hearings Officer finds that the Rabe Soil Study investigated and considered, in arriving at its conclusion for Subject
Property #2, the terrain, adverse soil or land conditions, drainage, flooding and vegetation. This Hearings Officer
comment also applies to Staff's request related to Farm Crops (Staff Report, page 33).
In reliance upon the Rabe Soil Study (with attachments) and the Applicant's Supplemental Burden of Proof
Statement, as modified by the Hearings Officer's responses to Staff issues above, the Hearings Officer finds this
criterion is met.
(4) The proposed nonfarm dwelling is not within one -quarter mile of a dairy
farm, feed lot or sales yard, unless adequate provisions are made and
approved by the Planning Director or Hearings Body for a buffer
between such uses. The establishment of a buffer shall be designed
based upon consideration of such factors as prevailing winds, drainage,
expansion potential of affected agricultural uses, open space and any
other factor that may affect the livability of the nonfarm dwelling or the
agriculture of the area.
FINDING: The Applicant provided the following response to this criterion:
"This criterion is not applicable because the subject property is not within one -quarter mile of a dairy farm,
feedlot, or sales yard."
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 41 of 61
There is nothing in the record indicating a nearby dairy farm, feedlot, or sales yard. For these reasons, the Hearings
Officer agrees with the Applicant.
(5) Road access, fire and police services and utility systems (i.e. electrical
and telephone) are adequate for the use.
FINDINGS:
Electricity. The record includes a letter from Central Electric Cooperative indicating they can serve all three Subject
Properties (Applicant's Exhibit 3).
Road access. The Hearings Officer incorporates the Preliminary Findings DCC 18.88.060 (section A.2) as additional
findings for this criterion.
The Hearings Officer takes note that Applicant, in its initial Burden of Proof, appeared to desire to use a historic
roadway located to the east of the Subject Property. Applicant, in its Third Supplemental Burden Of Proof
Statement With Alternative Building Envelope Location (pages 2 — 3), proposed to use an access roadway located
on the west side of the Subject Property. Based upon the Applicant's comments in its Open -Record — Round Two
submission it appears to the Hearings Officer that Applicant desires the Hearings Officer to approve, if possible,
the alternative roadway location (to the west of the Subject Properties) even if the Hearings Officer concludes the
historic roadway meets the requirements of DCC 18.88.060.8.1.
The Hearings Officer found (Preliminary Findings, Road Related Siting Issues, section A.2 and the findings for DCC
18.88.060 set forth later in this decision) that the historic roadway did meet the requirements of 18.88.060 B
which would result in building envelopes/footprints to be located within 300-feet of a "private road" that existed
on August 5, 1992. The Hearings Officer also found that Applicant's proposed alternative roadway, located to the
west of the Subject Properties, did not meet the requirements of DCC 18.88.060 B.1.
The Applicant's preferred alternative access is via a road along the western side of the Subject Properties; a
roadway that connects the Subject Property to NW Lower Valley Drive. NW Lower Valley Drive, a private road, is
functionally classified as a local road. The County Transportation Planner indicated that each individual dwelling
will not cause NW Lower Valley Drive to exceed its capacity. The private road terminates in the southwest corner
of Tax Lot 300.
As quoted in the Agency Comments section above, the Property Address Coordinator provided the following
comment:
"It appears from the aerial map in DIAL that the access for these parcels, 14-12-308A-00100, 00200 and
00300 trigger CDD 16.16.020,
'All unnamed public and private roads and other roadways which provide access to three or more tax lots,
or which are more than 1,320 feet in length, shall be assigned a name in accordance with the procedures
in DCC 16.16.030.'
Therefore, further discussion with the property owner regarding the actual access to these parcels is
necessary and a road naming application is probable."
In addition to the road naming process noted above, Staff (Staff Report, page 39) noted that the property owner
would need to provide recorded easements as the road which accesses the subject property crosses nearby parcel.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 42 of 61
Staff (Staff Report, page 39) recommended the following conditions to ensure compliance with access
requirements:
Road Naming: Prior to the issuance of building permits for any of the non farm dwellings, the existing
unnamed roadway which provides access to the subject property shall be assigned a name in accordance
with the procedures in DCC 16.16.030. This requires the submittal and approval of a Road Naming
Application.
Easement: Prior to the issuance of building permits, the applicant shall provide a copy of a recorded access
easement showing legal access from the subject parcels to NW Lower Valley Drive.
Telephone. The Applicant proposed to utilize cellular phone service for any dwelling on the Subject Properties.
Domestic water. The Applicant proposed that domestic water on the Subject Properties would be provided by a
private well. The Applicant submitted well logs indicating that domestic water to the Subject Properties can be
accommodated with a private well. The chart below lists the submitted well log and corresponding static water
level.
Map and Tax Lot
Distance from Subject Property
Static Water Level
14-12-2913, Tax Lot 100
±0.70 miles
234
14-12-2913, Tax Lot 200
±0.60 miles
253
14-12, Tax Lot 702
Adjacent
157
The Hearings Officer finds there should be adequate water for a domestic well on this property.
Septic. Dwellings on each Subject Property are proposed to be served by an on -site septic disposal system. Staff
(Staff Report, page 39) recommended the following condition of approval to ensure compliance with this criterion.
Septic: The applicant shall secure any necessary septic permit approval for each nonfarm dwelling.
Fire protection. The Subject Properties are located outside a fire protection district. Staff sent notice of the
application to the Deputy State Fire Marshal and they responded with no comment. However, Staff expressed
concerns (Staff Report, page 40) regarding adequacy of emergency access to the proposed dwelling locations. As
discussed above, the access road to the Subject Properties is not over a County -maintained roadway. The private
roadway crosses multiple privately owned parcels which appear to be under common ownership by the property
owner for the subject applications. However, it is not clear how this roadway is maintained and to what standard
it was constructed to. Therefore, staff recommended (Staff Report, page 40) the following conditions of approval:
Firebreaks and Fuel Break: Prior to the issuance of any building permit, the applicant shall construct and
maintain the firebreaks detailed below on land surrounding the structure and access road that are owned
or controlled by the owner. These required fuel breaks shall be maintained at all times.
1. Primary Firebreak. Prior to use, a primary firebreak, not less than 10 feet wide, shall be constructed
containing nonflammable materials. This may include lawn, walkways, driveways, gravel borders
or other similar materials.
2. Secondary Firebreak. A secondary firebreak of not less than 20 feet shall be constructed outside
the primary firebreak. This firebreak need not be bare ground, but can include a lawn, ornamental
shrubbery or individual or groups of trees separated by a distance equal to the diameter of the
crowns adjacent to each other, or 15 feet, whichever is greater. All trees shall be pruned to at least
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 43 of 61
eight feet in height. Dead fuels shall be removed.
3. Fuel Break. A fuel break shall be maintained, extending a minimum of 100 feet in all directions around
the secondary firebreak. Individual and groups of trees within the fuel break shall be separated by a
distance equal to the diameter of the crowns adjacent to each other, or 15 feet, whichever is greater.
Small trees and brush growing underneath larger trees shall be removed to prevent spread of fire up
into the crowns of the larger trees. All trees shall be pruned to at least eight feet in height. Dead fuels
shall be removed. The fuel break shall be completed prior to the beginning of the coming fire season.
4. No portion of a tree or any other vegetation shall extend to within 15 feet of the outlet of a
stovepipe or chimney.
Fire Safety Design Standards for Roads: Staff (Staff Report, pages 40-41) also recommended additional conditions
related to fire safety design for the private road. The Staff recommended conditions follow:
Prior to the issuance of any building permits, the Applicant shall provide written verification to the
Planning Division from a professional engineer registered in the state of Oregon stating the fire safety
design standards for the access road extending from the NW Lower Valley Drive right-of-way to each
dwelling site is met as detailed below:
1. Roads, bridges and culverts shall be designed and maintained to support a minimum gross vehicle
weight (GVW) of 50,000 lbs. If bridges or culverts are involved in the construction of a road or
driveway, written verification of compliance with the 50,000 lb. GVW standard shall be provided
by a professional engineer registered in Oregon.
2. Access roads shall have an unobstructed horizontal clearance of not less than 20 feet and an
unobstructed vertical clearance of not less than 13.5 feet, and provide an all weather surface.
3. Turnarounds shall have a minimum of 50 feet of turn radius with an all weather surface and be
maintained for turning of firefighting equipment.
4. Road grades should not exceed eight percent, with a maximum of 12 percent on short pitches.
Variations from these standards may be granted when topographic conditions make these
standards impractical and where the local fire protection district states their fire fighting
equipment can negotiate the proposed road grade.
Police protection. The Subject Property (refers collectively to three separate lots) is served by the Deschutes
County Sheriff.
The Hearings Officer, based upon the Preliminary Findings, Road Related Siting Issues (section A.2) and the findings
set forth above, concludes that if all Staff recommended conditions are included then these criteria will be met.
(6) The nonfarm dwelling shall be located on a lot or parcel created prior to
January 1, 1993, or was created or is being created as a nonfarm parcel
under the land division standards in DCC 18.16.055(8) or (C).
FINDING: The Hearings Officer incorporates, as additional findings for this criterion, the Preliminary Findings, Lot
Creation Date - DCC 18.16.050 G.1.a.(6) (section A.3). The Applicant provided the following statement in response
to this criterion:
"The subject property (tax lot 14-12-30BA, 100) is one of nine (9) legal lots of record located within the
boundaries of former tax lot 702, Map 14-12. It was created by deed in the Crook County records in 1913-
prior to the establishment of Deschutes County. It was adjusted and became what is now tax lot 14-12-
30BA, 100 as the result of property line adjustments LL-09-119 and LL-09-128. These adjustments were
approved by the County in 2008 and 2009.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 44 of 61
The following definitions from Oregon Revised Statutes chapter 92, section 92.010 are applicable here:
• "Lot" means single unit of land created by a subdivision of land.
• "Parcel" means a single unit of land that is created by a partition of land.
• "Partitioning land" means dividing land to create not more than three parcels of land within a
- calendar year, but does not include:
o (b) Adjusting a property line as property line adjustment is defined in this section.
• 'Property line adjustment" means a relocation or elimination of all of a portion of the common
property line between abutting properties that does not create an additional lot or parcel.
Deschutes County contains similar definitions in its acknowledged land use regulations.
Oregon Administrative Rules, under section 660-033-0020(4) has the following language as follows:
"Date of Creation and Existence." When a lot, parcel, or tract is reconfigured pursuant to
applicable law after November 4, 1993, the effect of which is to qualify a lot, parcel or tract for
the siting of a dwelling, the date of the reconfiguration is the date of creation or existence.
Reconfigured means any change in the boundary of the lot parcel or tract.
The date of creation and existence definition was adopted by LCDC in the 1990s and it is likely the definition
does not apply to the County's review of this application because the County's EFU zoning regulations have
been revised and acknowledged by LCDC a number of times since the definition was adopted. Nonetheless,
the definition makes it clear that a lot line adjustment does not create a new parcel and does not change
the date of creation but for this rule. The 1913 deed created the parcel. This issue has already been
_judicially resolved by the court of appeals in COLW v. Deschutes County (Grossmann), 320 Or.App. 650
(2022) attached hereto for convenience.
The Applicant also provided the following responses as it relates to each of the Subject Properties:
Tax Lot 100
The subject property (14-12-308A, 100) was not created by a subdivision or partition. No new parcels were
created by the County -approved adjustment, and the effect of the property line adjustment did not qualify
the subject property for a dwelling. The parent parcel of the subject property is a parcel identified as Lot
of Record 2, a 14.90-acre parcel of land with 7 acres of irrigation and 7.90 acres of dry unproductive,
unsuitable, Class 7 soils.
After adjustment, LL-09-119 was a 96.61-acre parcel. Adjustment LL-09-128 reduced the size of the dry
parcel to 4.98 acres. The parcel as originally configured qualified for a dwelling, and the reduction in size
of the subject property did not qualify it for approval of a dwelling.
Tax Lot 200
The subject property (14-12-308A, 200) was not created by a subdivision or partition. No new parcels were
created by the County -approved adjustment, and the effect of the property line adjustment did not qualify
the subject property for a dwelling. The parent parcel of the subject property is a parcel identified as Lot
of Record 1, a 40.51-acre parcel of land with 40 acres of irrigation and .51 acres of dry unproductive soils,
and could have been approved for a dwelling. After adjustment, the property is 4.98 acres. The reduction
in size of the subject property did not qualify it for approval of a dwelling.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 45 of 61
Tax Lot 300
The subject property (14-12-30BA 300) was not created by a subdivision or partition. No new parcels were
created by the County -approved adjustment, and the effect of the property line adjustment did not qualify
the subject property for a dwelling. The parent parcel of the subject property is a parcel identified as Lot
of Record 4, a 19.89-acre parcel of land with no irrigation and could have been approved for a dwelling.
After adjustment, LL 09-117 the parcel was 5.01 acres. The parcel as originally configured qualified for a
dwelling, and the reduction in size of the subject property did not qualify it for approval of a dwelling."
The Hearings Officer, based upon the Preliminary Findings, Lot Creation Date — DCC 18.16.050 G.1.a.(6) (section
A.3) related the legal interpretation of this approval criterion and the evidence supplied by Applicant, as quoted
above, finds the Subject Properties were created prior to January 1, 1993.
2. For the purposes of DCC 18.16.050(G) only, "unsuitability" shall be determined with
reference to the following:
a. A lot or parcel shall not be considered unsuitable solely because of size or
location if it can reasonably be put to farm or forest use in conjunction with
other land. If the parcel is under forest assessment, the dwelling shall be
situated upon generally unsuitable land for the production of merchantable tree
species recognized by the Forest Practices Rules, considering the terrain,
adverse soil or land conditions, drainage and flooding, vegetation, location and
size of the parcel.
_._.�.-.� —. Officer
_. _ the
�.__1:.__:.__.._. r:.__I:.___ Unsuitability
t_._ r_..._- 11__ I I � :M
FINDING: he Hearings Officer Incorporates the Preliminary Findings, Unsuitability fur Farhr Llse — vse fir
Conjunction (section A.4) as additional findings for this criterion.
The Subject Property is not under forest assessment. LUBA determined the issue of whether nonfarm parcels can
be put to farm use in conjunction with other properties "is triggered under DCC 18.16.050(G)(2)(a) if the parcels
are found to be unsuitable solely because of size or location." Williams v. Jackson County, 55 Or LUBA 223, 230
(2007).
The Applicant provided the following statement, in part, in their supplemental burden of proof statement, dated
September 14, 2023 addressing the standard above:
"Here, the applicant is not relying on the lot or parcel "size" or "location" to find the lot is unsuitable. The
balance of the code provision makes clear that this criteria can be met when an entire parcel, or a portion
of the parcel where the proposed building envelope will be located, is determined to be "unsuitable." While
it does not have to be the entire parcel, here, the level one soil analysis done by a professional soil scientist
determined that the entire parcel is unsuitable as set forth in the exhibits..."
In this case, and as articulated throughout this decision, the Staff Report and in the Applicant's Burdens of Proof,
the Subject Property (collectively refers to three lots) is not suitable due to adverse soil and land conditions, which
could demonstrate that the properties proposed for the nonfarm dwellings are generally unsuitable for farm use.
Because the Applicant does not claim unsuitability due to size or location, the Hearings Officer finds this criterion
does not apply.
b. A lot or parcel is not "generally unsuitable" simply because it is too small to be
farmed profitably by itself. If a lot or parcel can be sold, leased, rented or
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 46 of 61
otherwise managed as part of a commercial farm or ranch, it is not "generally
unsuitable." A lot or parcel is presumed to be suitable if it is composed
predominantly of Class I -VI soils. lust because a lot or parcel is unsuitable for
one farm use does not mean it is not suitable for another farm use. If the parcel
is under forest assessment, the area is not "generally unsuitable" simply
because it is too small to be managed for forest production profitably by itself.
FINDING: The Hearings Officer incorporates the Preliminary Findings, Unsuitability for Farm Use — Use in
Conjunction (section A.4) as additional findings for this criterion. The Hearings Officer also incorporates the
findings for DCC 18.16.050 G.1.a as additional findings for this criterion.
The Applicant's supplemental Burden of Proof, dated September 14, 2023, states in part:
"Here, the applicant is not relying on the lot or parcel "size" or "location" to find the lot is unsuitable. The
balance of the code provision makes clear that this criteria can be met when an entire parcel, or a portion
of the parcel where the proposed building envelope will be located, is determined to be "unsuitable." While
it does not have to be the entire parcel, here, the level one soil analysis done by a professional soil scientist
determined that the entire parcel is unsuitable as set forth in the exhibits. Specifically, the balance of the
code provides:
iii. The proposed nonfarm dwelling is situated on an existing lot
or parcel, or a portion of a lot or parcel, that is generally
unsuitable for the production of farm crops and livestock, or
merchantable tree species, considering the terrain, adverse soil or
land conditions, drainage and flooding, vegetation, location and
size of the tract. (underline emphasis added)"
The Hearings Officer agrees with the Applicant that it is not asserting any property subject to this decision is too
small to be farmed profitably by itself. Rather, the Hearings Officer finds that the Applicant is asserting that the
poor soil quality on each Subject Property renders them generally unsuitable for farming/timber production. The
Applicant provided an analysis study for each property related to the general unsuitability for crop and livestock
production (See findings for DCC 18.16.050 G.1.a (3)). While there are large scale commercial farm operations
nearby the Subject Property, there is no evidence in the record that the Subject Property can be sold, leased,
rented or otherwise managed as part of a nearby commercial farm or ranch. No other generally accepted farm
practices are identified in the record.
Staff (Staff Report, page 45) provided the following comments related to this approval criterion:
"... as discussed above, a lot or parcel is presumed to be suitable if it composed predominantly of Class 1-VI
soils. Tax Lot 100 and 200 appear to be predominantly composed of Class VI soils, based on the information in
the soils report. Tax Lot 300 appears to be predominantly composed of Class VII soils, based on the information
in the soils report.
Staff asks the Hearings Officer to make specific findings regarding the "unsuitability" of the subject properties
based on these qualifications pursuant to DCC 18.16.050(G)."
The Hearings Officer finds that the soil conditions existing at the Subject Property was adequately addressed by
Applicant (See Applicant Supplemental Burden of Proof Statement pages 8 — 13 and attachments). The Hearings
Officer finds, based upon soil conditions, each property subject to this decision, is generally unsuitable for the
production of farm crops and livestock. Further, the Hearings Officer finds that Applicant addressed each of the
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 47 of 61
relevant DCC 18.16.050 G. factors (i.e., terrain, land conditions, drainage, flooding, vegetation and location). The
Hearings Officer finds Applicant's submissions related to the DCC 18.16.050 G evaluation factors demonstrates
that the Subject Property is not suitable for the production of farm crops and livestock.
C. If a lot or parcel under forest assessment can be sold, leased, rented or
otherwise managed as a part of a forestry operation, it is not "generally
unsuitable". If a lot or parcel is under forest assessment, it is presumed suitable
if it is composed predominantly of soil capable of producing 20 cubic feet of
wood fiber per acre per year. If a lot or parcel is under forest assessment, to be
found compatible and not seriously interfere with forest uses on surrounding
land it must not force a significant change in forest practices or significantly
increase the cost of those practices on the surrounding land.
FINDING: The Subject Properties are not under forest assessment. Therefore, the Hearings Officer finds this criterion
does not apply.
3. Loss of tax deferral. Pursuant to ORS 215.236, a nonfarm dwelling on a lot or parcel in
an Exclusive Farm Use zone that is or has been receiving special assessment may be
approved only on the condition that before a building permit is issued the applicant
must produce evidence from the County Assessor's office that the parcel upon which the
dwelling is proposed has been disqualified under ORS 308A.050 to 308A.128 or other
special assessment under ORS 308A.315, 321.257 to 321.390, 321.700 to 321.754 or
321.805 to 321.855 and that any additional tax or penalty imposed by the County
Assessor as a result of disqualification has been paid.
FINDING: Staff (Staff Report, pages 45-46) recommended the following condition of approval:
Farm Tax Deferral Disqualification: Prior to the issuance of building permits, the applicant shall produce
evidence from the County Assessor's Office that the parcel upon which the dwelling is proposed has been
disqualified for special assessment at value for farm use under ORS 308.370 or other special assessment under
ORS 308.765, 321.352, 321.730 or 321.815, and that any additional tax or penalty imposed by the County
Assessor as a result of disqualification has been paid.
The Hearings Officer finds that with Staff's recommended condition of approval this criterion can be met.
Chapter 18.56, Surface Mining Impact Area Combining Zone (SMIA)
FINDING: The Subject Properties are located within the SMIA Zone in association with mine site 324.
Section 18.56.030, Application of Provisions.
The standards set forth in DCC 18.56 shall apply in addition to those specified in DCC Title 18 for the
underlying zone. If a conflict in regulations or standards occurs, the provisions of DCC 18.56 shall govern.
FINDING: The standards under DCC 18.56 are addressed in the following findings.
Section 18.56.050. Conditional Uses Permitted
Uses permitted conditionally shall be those identified as conditional uses in the underlying zone(s) with
which the SMIA Zone is combined and shall be subject to all conditions of the underlying zone(s) as well
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 48 of 61
as the conditions of the SMIA Zone.
FINDING: As discussed herein, the proposed use is a conditional use in the underlying zone. Therefore, the
proposed use is also a conditional use in the SMIA Zone. Applicable standards are addressed below.
Section 18.56.070. Setbacks.
The setbacks shall be the same as those prescribed in the underlying zone, except as follows:
A. No noise sensitive or dust sensitive use or structure established or constructed after the
designation of the SMIA Zone shall be located within 250 feet of any surface mining zone, except
as provided in DCC 18.56.140; and
B. No noise sensitive or dust sensitive use or structure established or constructed after the
designation of the SMIA Zone shall be located within one quarter mile of any existing or
proposed surface mining processing or storage site, unless the applicant demonstrates that the
proposed use will not prevent the adjacent surface mining operation from meeting the setbacks,
standards and conditions set forth in DCC 18.52.090, 18.52.110 and 18.52.140, respectively.
C. Additional setbacks in the SMIA Zone may be required as part of the site plan review under DCC
18.56.100.
D. An exception to the 250 foot setback in DCC 18.56.070(A), shall be allowed pursuant to a written
agreement for a lesser setback made between the owner of the noise sensitive or dust sensitive
use or structure located within 250 feet of the proposed surface mining activity and the owner
or operator of the proposed surface mine. Such agreement shall be notarized and recorded in
the Deschutes County Book of Records and shall run with the land. Such agreement shall be
submitted and considered at the time of site plan review or site plan modification.
FINDING: The Hearings Officer finds that no noise sensitive or dust sensitive use or structure is proposed within
one quarter mile of any surface mining zone.
Section 18.56.080. Use Limitations.
No dwellings or additions to dwellings or other noise sensitive or dust sensitive uses or structures shall
be erected in any SMIA Zone without first obtaining site plan approval under the standards and criteria
set forth in DCC 18.56.090 through 18.56.120.
FINDING: This decision includes SMIA Zone site plan approval under the standards and criteria set forth in DCC
18.56.090 through 18.56.120. Staff (Staff Report, page 45) found that this approval covers any noise and dust
sensitive use anywhere on the property. Barring code changes to DCC 18.56 or changes in the boundaries of
mine(s) in the area, no further SMIA review is required for permitted uses on the subject properties.
Section 18.56.090. Specific Use Standards.
The following standards shall apply in the SMIA Zone:
New dwellings, new noise sensitive and dust sensitive uses or structures, and additions to dwellings or
noise and dust sensitive uses or structures in existence on the effective date of Ordinance No. 90 014
which exceed 10 percent of the size of the existing dwelling or use, shall be subject to the criteria
established in DCC 18.56.100.
FINDING: The proposed use is listed in this criterion and is subject to DCC 18.56.100.
Section 18.56.100. Site Plan Review and Approval Criteria.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 49 of 61
A. Elements of Site Plan. A site plan shall be submitted in a form prescribed by the Planning Director
or Hearings Body detailing the location of the proposed noise sensitive use, the location of the
nearby surface mine zone and operation, if any, and other information necessary to evaluate
the approval criteria contained in DCC 18.56.100.
FINDING: The Applicant submitted three SMIA applications, File Nos. 247-23-000737-SMA, 738-SMA, 739-SMA
associated with Tax Lot 100, 200, and 300 respectively to address Chapter 18.56.
B. Site plan review and approval, pursuant to the County Uniform Land Use Action Procedures
Ordinance, shall be required for all uses in the SMIA Zone prior to the commencement of any
construction or use.
FINDING: The Applicant applied for site plan review for the proposed use, which are being reviewed and processed
under Title 22, Deschutes County Development Procedures Ordinance. The Hearings Officer finds that this
criterion will be met.
C. The Planning Director or Hearings Body may grant or deny site plan approval and may require
such modifications to the site plan as are determined to be necessary to meet the setbacks,
standards and conditions described above.
FINDING: The Hearings Officer finds that this approval does not require modifications to any site plan to meet the
DCC 18.56 setbacks, standards and conditions described above.
D. The site plan shall be approved if the Planning Director or Hearings Body finds that the site plan
is consistent with the site specific ESEE analysis in the surface mining element of the
Comprehensive Plan and that the proposed use will not prevent the adjacent surface mining
operation from meeting the setbacks, standards and conditions set forth in DCC 18.52.090,
18.52.110 and 18.52.140, respectively.
FINDING: Pursuant to 18.52.160(B), the subject mine is a preexisting mine. Therefore, the standards listed in
Chapter 18.52 do not apply. The proposal is consistent with the site specific ESEE analysis.
E. Public notice shall be as set forth in DCC Title 22, the Uniform Development Procedures
Ordinance, except that in all cases notice of the receipt of an SMIA application shall be sent to
the mine owners and/or operators whose SM Zoned site triggered the SMIA review.
FINDING: As set forth in DCC Title 22, notice will be sent to the mine owners and/or operators whose SM Zoned
site triggered the SMIA review.
Section 18.56.110. Abbreviated SMIA Site Plan Review.
A. A new or enlarged noise or dust sensitive use to which DCC 18.56.110 applies that is at least one
quarter mile from an SM Zone and that has at least two dwellings or other noise or dust sensitive
uses between it and the SM zone is presumed to meet the approval criteria set forth in DCC
18.56.100(D), and shall be processed under DCC 18.56.110.
FINDING: Staff provided the following findings (Staff Report, page 49) finds that any future new or enlarged noise
or dust sensitive use on the subject property would likewise meet the applicable criteria of DCC 18.56 and that no
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 50 of 61
further review under DCC 18.56 is required for such uses. The Hearings Officer concurs with Staff's analysis and
conclusion. The Hearings Officer finds this criterion is met.
B. Abbreviated SMIA site plan review shall require the submission of an application in a form
prescribed by the Planning Director or Hearings Body and such documentation as is necessary
to demonstrate conformance with DCC 18.56.110(A).
FINDING: The Applicant submitted three applications in a form prescribed by the Planning Director or Hearings
Body and such documentation as is necessary to demonstrate conformance with DCC 18.56.110(A).
C. Unless the underlying zoning at the SMIA site would require additional review of the proposed
use for some other land use permit, abbreviated site plan review shall be conducted (1)
administratively without prior public notice; (2) with public notice of the Findings and Decision
mailed consistent with DCC 18.56.100(E), to all persons entitled to receive notice; and (3) with
an appeal period and procedures as set forth in DCC Title 22, the Uniform Development
Procedures Ordinance. Appellants may submit evidence to overcome the presumption set forth
in DCC 18.56.110(A).
FINDING: This abbreviated site plan review is being conducted in accordance with this criterion.
Section 18.56.120. Waiver of remonstrance.
The applicant for site plan approval in the SMIA Zone shall sign and record in the Deschutes
County Book of Records a statement declaring that the applicant and his successors will not now
or in the future complain about the allowed surface mining activities on the adjacent surface
mining site.
FINDING: Staff (Staff Report, page 47) recommended a condition of approval that requires the Applicant to sign
and record a Waiver of Remonstrance prior to the issuance of the building permits for the proposed uses. The
Hearings Officer finds that with Staff's recommended condition of approval this requirement can be met.
Section 18.56.140. Exemptions.
The following shall be exempt from the provisions of DCC 18.56:
A. Uses in the SMIA Zone which are not within one half mile of any identified resource in the SM
Zone after all reclamation has occurred.
B. Continuation and maintenance of a conforming or nonconforming use established prior to the
effective date of Ordinance No. 90 014.
C. The employment of land for farm or forest use.
D. Additions to noise -sensitive or dust -sensitive uses or structures existing on the effective date of
Ordinance No. 90 014 or established or constructed in accordance with DCC Chapter 18.56 which
are completely screened from the surface mining site by the existing use or structure.
FINDING: These criteria do not apply to this proposal.
Chapter 18.88, Wildlife Area Combining Zone (WA)
Section 18.88.040. Uses Permitted Conditionally.
A. Except as provided in DCC 18.88.040(B), in a zone with which the WA Zone is combined, the
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 51 of 61
conditional uses permitted shall be those permitted conditionally by the underlying zone subject
to the provisions of the Comprehensive Plan, DCC 18.128 and other applicable sections of this
title. To minimize impacts to wildlife habitat, the County may include conditions of approval
limiting the duration, frequency, seasonality, and total number of all outdoor assemblies
occurring in the WA Zone, whether or not such outdoor assemblies are public or private, secular
or religious.
FINDING: The proposed nonfarm dwelling is a conditional use in the EFU Zone and therefore is also a conditional
use in the WA Combining Zone.
Section 18.88.060. Siting Standards.
A. Setbacks shall be those described in the underlying zone with which the WA Zone is combined.
FINDING: Setbacks are those described in the EFU Zone in which the WA Zone is combined.
B. The footprint, including decks and porches, for new dwellings shall be located entirely within
300 feet of public roads, private roads or recorded easements for vehicular access existing as of
August 5, 1992 unless it can be found that:
1. Habitat values (i.e., browse, forage, cover, access to water) and migration corridors are
afforded equal or greater protection through a different development pattern; or,
2. The siting within 300 feet of such roads or easements for vehicular access would force
the dwelling to be located on irrigated land, in which case, the dwelling shall be located
to provide the least possible impact on wildlife habitat considering browse, forage,
cover, access to water and migration corridors, and minimizing length of new access
roads and driveways; or,
3. The dwelling is set back no more than 50 feet from the edge of a driveway that existed
as of August 5, 1992.
C. For purposes of DCC 18.88.060(8):
1. A private road, easement for vehicular access or driveway will conclusively be regarded
as having existed prior to August 5, 1992 if the applicant submits any of the following:
a. A copy of an easement recorded with the County Clerk prior to August 5, 1992
establishing a right of ingress and egress for vehicular use;
b. An aerial photograph with proof that it was taken prior to August 5, 1992 on
which the road, easement or driveway allowing vehicular access is visible;
C. A map published prior to August 5, 1992 or assessor's map from prior to August
5, 1992 showing the road (but not showing a mere trail or footpath).
2. An applicant may submit any other evidence thought to establish the existence of a
private road, easement for vehicular access or driveway as of August 5, 1992 which
evidence need not be regarded as conclusive.
FINDING: The Hearings Officer incorporates the Preliminary Findings Road Related Siting Issues (section A.2) as
additional findings for these criteria. Summarized the Road Related Siting Issues (section A.2) findings concluded
that an applicant must, if seeking a DCC 18.88.060 B.1 exception, first demonstrate that proposed building
footprints are within 300-feet of a August 5, 1992 road. The Hearings Officer found, in the Preliminary Findings,
that a "private road" includes a "farm road." The Hearings Officer found that a "private road" need not be paved
or otherwise improved so long as it serves the purpose of providing vehicular access between two points. The
Hearings Officer found that an applicant can provide proof of the existence of a August 5, 1992 private road by
submitting into the record aerial photos and maps so long as those photos and maps were taken prior to August
5, 1992 and the roadway is visible. Finally, the Hearings Officer, in the Preliminary Findings, concluded that a DCC
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 52 of 61
18.88.060 "private road" shall be considered "in use" unless there is evidence in the record that the right to use
the roadway was legally terminated or there is substantial evidence in the record that the road use has been
permanently discontinued.
The Hearings Officer first addresses the COLW claim that Applicant failed to provide substantial evidence into the
record that a "private road," as set forth in DCC 18.88.060 B, was in existence on August 5, 1992. Applicant
submitted comments, in its multiple Burdens of Proof (including its original Burden of Proof and subsequent
Supplemental Burdens of Proof), that a "farm road" is located along the eastern side of the Subject Property. Staff
also provided comments and evidence (Staff Report, pages 51— 59) related to the alleged eastern roadway. The
Hearings Officer finds COLW provided no evidence in the record disputing the authenticity or accuracy of the
Applicant's or Staff's proffered record evidence; COLW simply argued that the evidence in the record was not
adequate. The Hearings Officer finds all maps and photos submitted by Applicant and Staff to be credible.
The Hearings Officer takes note of the Hearing testimony and record submissions of Dirk Duryee ("Duryee").
Duryee represented, during his Hearing testimony, that he is an Oregon licensed professional engineer. Duryee
submitted (Applicant February 12, 2024 record submission plus attachments) comments, maps and aerial photos
addressing the alleged eastern roadway. The Hearings Officer finds Duryee's testimony and record submissions
constitute credible and substantial evidence related to the existence of the eastern roadway prior to August 5,
1992.
The Hearings Officer also takes note of an affidavit signed by Keenan Howard ("Howard") (Applicant February 12,
2024 record submission, attachment). In summary, the Howard affidavit states that he is familiar with the Subject
Property and land located east of and adjacent to the Subject Property. Howard stated, in the affidavit, that he
used the roadway, located east of the Subject Property, with farm equipment. Howard stated that:
"There is no question that these were historical roads used by the farmers for decades, extending before 1992."
The Hearings Officer sets forth, once again, a portion of DCC 18.88.060:
C. For the purposes of DCC 18.88.060 (B):
1. A private road, easement for vehicular access or driveway will conclusively be regarded as
having existed prior to August 5, 1992 if the applicant submits any of the following:
b. An aerial photograph with proof that it was taken prior to August 5, 1992 on which the
road, easement or driveway allowing vehicular access is visible.
The level of proof required to demonstrate that a "private road" existed on August 5, 1992 (per DCC 18.88.060 B)
is set forth above in DCC 18.88.060 C.1. The Hearings Officer finds that there must be in the record (a) one or
more aerial photographs with proof that the photographs were taken prior to August 5, 1992 and (b) that the
purported "private road" (in this case) is visible (emphasis added).
The Hearings Officer finds that many of the aerial photographs submitted by Applicant appear to show the alleged
eastern "farm road" (Applicant's Burdens of Proof, Staff Report, and Open -Record Submissions). The Hearings
Officer finds many of those photographs are suggestive and perhaps conclusive that the eastern road met the DCC
18.88.060 CA proof requirements. The Hearings Officer finds that Duryee submitted Exhibit (1990 USDA Aerial),
included below, clearly shows the Subject Property and an eastern roadway prior to August 5, 1992.
The Hearings Officer, based upon the Applicant's submittals, the Staff Report, Duryee testimony and submitted
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 53 of 61
documentation and the Howard affidavit, finds that a "farm road" did exist, on and prior to August 5, 1992, as
shown by the aerial photograph below. The Hearings Officer, based upon Duryee testimony and submitted
documentation, finds that Applicant's proposed building footprints as set forth in the initial Burden of Proof, are
within 300-feet of a "private road"; thereby, satisfying the DCC 18.88.060 B requirements. The Hearings Officer
finds COLW did not dispute or challenge the evidence in the record provided by Applicant that supported its claim
that the eastern road met the 300-foot requirement. The only proof of meeting the 300-foot requirement was
presented by Applicant. The Hearings Officer finds this evidence/representation by Applicant to be credible.
ztiu.5—Grossman bite Mlan.awg
The Hearings Officer next addresses the Applicant's preferred alternative; locating building footprints accessing a
"private road" to the west of the Spbject Property. Applicant's preferred alternative is to utilize the DCC 18.88.060
B.1 "exception" process. Applicant provided the following map/plan showing its preferred access alternative.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 54 of 61
BUILDING AREAS FOR CONDITIONAL USE PERMITS•01
AND
LOCATED
OF
COUNTY, OREGON
SECTION 19
SECTION 30
•..0,000RNERGROSSMAN.
SECTION r
ROGERRI
s . 1
REVOCABLE
..�'�
TRUST
RVEYOR
�r►��-12'
WIDE GRAVEL ROAD. i TIO
SURVEYED 01-09-2024
OREGON
TL 100
• r
DIRK DU YEE
,► ii!
RENEWS. 12/31/25
�7�1r
!�#����
ABLE
�.��AR
A
• •
1412000001999
A/
EASEMENT AS
SHOWN ON
PROPERTY
±�ADJUSTMENTS1: 1 354—CU
SURVEY CS20439
141200000070,6
1)u
DEEP CANYON LLC
V! TL 300
MAN100*
: 1
I
1412000003201
DESCHUTES COUNTY
TYE ENGINEERING, INC.
725 NW HELL, BEND, OREGON 97703 (541) 389-6959
CN 1/16TH
CORNER
DATE: 01-10-2024 I SCALE: 1"=200'DRAWN BY. P.A.T. I2803-Grossman Site Plan.dwq'
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 55 of 61
COLW (February 6, 2024 page 5 and February 13, 2024 page 3) and the Oregon Department of Fish and Wildlife
("ODFW" January 30, 2024 email) argued that Applicant did not provide, in the record, substantial evidence that
the habitat values and migration corridors are afforded equal or greater protection if Applicant's alternative (west
side) roadway is approved. Applicant relied upon the testimony of Wendy Wente ("Wente") and a "wildlife study"
submitted into the record (July 27, 2023, Mason, Bruce and Girard, Exhibit 2 to Third Supplemental Burden of
Proof Statement — hereafter the "MB&G Study") in support of its request for its preferred alternative DCC
18.88.060 B.1 exception.
DCC 18.88.060 B.1 states:
Habitat values (i.e., browse, forage, cover, access to water) and migration corridors are afforded equal or
greater protection through a different development pattern"
The Hearings Officer finds that DCC 18.88.060 B.1 describes, through a list contained in parenthesis, "habitat
values." The Hearings Officer finds the list (in parentheses) following "habitat values" in DCC 18.88.060 B.1 is
suggestive and does not ascribe the weight to be given to any item in the list. The Hearings Officer also finds the
parenthesis list of "habitat values" is not exclusive; other habitat value factors could be considered. However, no
participant in this case suggested that the listed factors should not be considered.
The Hearings Officer finds that the DCC 18.88.060 B.1 language "afforded equal or greater protection through a
different development pattern" requires the Hearings Officer to compare the proposed alternative to the 300'
Option. In this case the Hearings Officer is required to compare the west side road to the historical east side road.
The Hearings Officer must determine, based upon the evidence in the record, whether the Applicant's proposed
alternative (west side road) provides equal or greater habitat values and migration corridors than the historic
eastern road.
The Hearings Officer finds that Applicant relied upon the MB&G Study, the testimony of Wente and a narrative
(with accompanying photographs) submitted as part of Applicant Statement (Open Record — Round One) to
demonstrate satisfaction of DCC 18.88.060 8.1. The Hearings Officer sets forth below a section of the MB&G
Study titled "Professional Opinion:"
"During the wildlife habitat assessment completed in 202Z MB&G noted a single habitat type, western juniper
woodland, was uniformly distributed throughout the entire property. Topographically, the property lies on a
southwest to northeast oriented ridge with parallel rock outcroppings erupting along the main ridge south of
the property.
Mule deer likely use the juniper woodlands as cover habitat during winter rather than as a primary food source
due to the juniper dominated vegetation community which primarily offers cover rather than forage. The
property is also proximal to agricultural fields located immediately to the north-east and north of the property.
Alternatively siting the building footprints within 300 feet of the western -most road rather than within 300
feet of the prep1992 eastern -most road would:
1) Provide a contiguous corridor that would allow mule deer to move through and utilize the eastern-
most portions of the three tax lots by forming a corridor habitat following the ridgeline and connecting
undeveloped public lands to the south to agricultural lands and pockets of juniper woodlands to the north.
2) Reduce traffic related disturbance. The route along the eastern road would require traffic to travel
approximately 1.25 miles through juniper woodland habitat and adjacent farmland before reaching
the turnoff to FHC. The wester road reaches the nearest intersection within approximately .75 miles.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 56 of 61
The juniper habitat transected by the eastern road also appears to create a corridor of habitat between
agricultural fields, and is likely used by mule deer as they move about the winter range. limiting traffic
to the western road would, therefore, reduce impacts to overwintering deer.
3) Concentrate disturbed areas including the new building footprints and driveways closer to the existing
operating farm by keeping the development within 300 feet of the western road.
Due to these factors, the mule deer winter range and other wildlife habitat would be better protected by
locating the new dwellings within 300 feet of the western road rather than the eastern road."
The MB&G Study, as quoted above, presented a challenge to the Hearings Officer to assess whether the habitat
values and mitigation corridors factors were compared and contrasted as required by DCC 18.88.060 B.1. The
Hearings Officer finds, in this case, that the habitat value factors of browse, forage and cover must be satisfactorily
compared and contrasted by Applicant to meet the requirements of DCC 18.88.060 B.1. The migration corridor
factor also is required to be compared and contrasted by Applicant.
The Hearings Officer will address below the required comparison/contrast factors individually.
The first DCC 18.88.060 B.1 habitat value factor is "browse." The Hearings Officer found no reference to "browse"
in the MB&G Study. The Hearings Officer reviewed Wente's February 6, 2024 hearing testimony and did not hear
any reference to "browse." It is possible that Wente and/or the MB&G Study intended the Hearings Officer to
consider the "browse" factor was addressed using some other language or phrasing in testimony and
documentation. However, the Hearings Officer will not engage in such speculation. The Hearings Officer finds
that Applicant did not address the DCC 18.88.060 B.1 requirement to compare/contrast the "browse" habitat
value.
The next habitat value required to be considered is "forage." The Hearings Officer finds that the MB&G Study did
reference "food sources" which the Hearings Officer finds maybe related to the "forage" habitat value.6 However,
the Hearings Officer finds that neither the Wente testimony nor the MB&G Study clearly compared and contrasted
the proposed western road location to the historic eastern road location with respect to the "forage" habitat value
factor. The Hearings Officer will not speculate as to the Applicant's intentions related to the habitat factor
"forage." The Hearings Officer finds that Applicant did not address the DCC 18.88.060 B.1 "forage" habitat value
requirement to compare/contrast the proposed western road development pattern and the historic eastern road.
The next habitat value to be addressed is the DCC 18.88.060 B.1 "cover." The MB&G Study did address the "cover"
habitat value factor. However, the MB&G Study does not clearly offer compare/contrast the "cover" habitat value
factor (compare the "cover" habitat value for the western road to the historic eastern road). Based upon the
evidence in the record the Hearings Officer will not speculate as to whether the proposed western road provides
equal or greater "cover" habitat value compared to the historic eastern road.
The Hearings Officer finds the "access to water" habitat value factor is not relevant to this case.
The next DCC 18.88.060 B.1 factor to be compared and contrasted is "migration corridors." The Hearings Officer
finds the MB&G Study did directly compare and contrast the proposed western road to the historic eastern road
for the "migration corridors." The Hearings Officer finds the MB&G Study comments related to "migration
corridors" did adequately compare and contrast the proposed western road to the historic eastern road. The
Hearings Officer finds that neither COLW or ODFW offered any evidence to dispute the specific comments
contained in the MB&G Study related to "migration corridors."
6 The MB&G Study states, in part "mule deer likely use the juniper woodlands as cover habitat during winter rather than as a primary food
source due to the juniper dominated vegetation community which primarily offers cover rather than forage."
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 57 of 61
The Hearings Officer finds that Applicant adequately compared and contrasted the "migration corridors" factor.
The Hearings Officer finds Applicant did not provide substantial evidence in the record to support a finding that
the "browse," "forage" or "cover" factors were compared and contrasted sufficiently to allow the Hearings Officer
to conclude the location of the dwellings closer to the western road would result in equal or greater protection of
habitat values. The Hearings Officer finds Applicant did not carry its burden with respect to DCC 18.88.060 B.1.
The Hearings Officer finds, based upon the evidence in the record and available for the Hearings Officer's
consideration, that Applicant's alternative siting of the dwellings near the western road does not meet the
requirements of DCC 18.88.060 B.1 and Applicant's requested "exception" for an alternative dwelling location
must be denied.
Section 18.88.070. Fencing Standards.
The following fencing provisions shall apply as a condition of approval for any new fences constructed
as a part of development of a property in conjunction with a conditional use permit or site plan review.
A. New fences in the Wildlife Area Combining Zone shall be designed to permit wildlife passage.
The following standards and guidelines shall apply unless an alternative fence design which
provides equivalent wildlife passage is approved by the County after consultation with the
Oregon Department of Fish and Wildlife:
1. The distance between the ground and the bottom strand or board of the fence shall be
at least 15 inches.
2. The height of the fence shall not exceed 48 inches above ground level.
3. Smooth wire and wooden fences that allow passage of wildlife are preferred. Woven
wire fences are discouraged.
B. Exemptions:
1. Fences encompassing less than 10,000 square feet which surround or are adjacent to
residences or structures are exempt from the above fencing standards.
2. Corrals used for working livestock.
FINDING: No new fencing is included in this proposal. Staff recommends a condition of approval to ensure
compliance.
SYSTEM DEVELOPMENT CHARGE
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $5,603 per p.m. peak
hour trip. Staff determined a local trip rate of 0.81 p.m. peak hour trips per single-family dwelling unit; therefore,
the applicable SDC is $4,538 ($5,603 X 0.81) per dwelling. The SDC is due prior to issuance of certificate of
occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use
decision becoming final. This SDC amount will be good through June 30, 2024. DESCHUTES COUNTY'S SDC RATE
IS INDEXED AND RESETS EVERY JULY 1. WHEN PAYING AN SDC, THE ACTUAL AMOUNT DUE IS DETERMINED BY
USING THE CURRENT SDC RATE AT THE DATE THE BUILDING PERMIT IS PULLED.
IV. CONCLUSION
The Hearings Officer considered the Applicant's proposal seeking conditional use approval for three non -farm
dwellings on three separate lots and SMIA approval for each lot. The Hearings Officer considered Staff
reservations related to a number of approval criteria. The Hearings Officer also considered COLW's arguments
that the conditional use applications failed to meet/satisfy a number of approval criteria.
The Hearings Officer, in the Preliminary Findings, addressed many of Staff's and COLW's legal interpretation
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 58 of 61
concerns. The Hearings Officer, in the General Findings for relevant approval criteria, addressed Staff's and
COLW's evidentiary concerns in the context of the Hearings Officer's legal interpretation of the criteria.
The Hearings Officer found, with one exception, that the Applicant's proposals met the relevant approval criteria.
The Hearings Officer concluded that Applicant failed to carry its evidentiary burden with respect to its request for
exceptions to DCC 18.88.060 B.1 (Exception Requests). The Hearings Officer found that Applicant's request to
locate the non -farm dwellings on the west side of the lots, as proposed in their Exception Requests was not
supported by substantial evidence in the record and therefore had to be denied.
The Hearings Officer concluded that Applicant's proposals for three non -farm dwellings and SMIA review should
be approved.
V. DECISION
Approval of Applicant's requests for conditional use and surface mining impact area review to establish three
(3) non -farm dwellings on three separate legal lots of record in the EFU zone.
Denial of Applicant's requested DCC 18.88.060 B.1 exception to site the dwelling envelopes within 300-feet of
the road located on the west side of the subject property.
VI. CONDITIONS OF APPROVAL
A. This approval is based upon the application, site plan, specifications, and supporting documentation
submitted by the Applicant. Any substantial change in this approved use will require review through a
new land use application.
B. The property owner shall obtain any necessary permits from the Deschutes County Building Division and
Onsite Wastewater Division.
C. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed by DCC
18.120.040
D. Structural setbacks from any north lot line shall meet the solar setback requirements in DCC 18.116.180.
E. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or
structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met.
F. Farm & Forest Management Easement: Prior to the issuance of any building permit for a nonfarm
dwelling, the property owner shall sign and record in the deed records for the County, a document binding
the landowner, and the landowner's successors in interest, prohibiting them from pursuing a claim for
relief or cause of action alleging injury from farming or forest practices for which no action or claim is
allowed under ORS 30.936 or 30.937. The Applicant shall submit a copy of the recorded Farm and Forest
Management Easement to the Planning Division.
G. All new fences shall comply with DCC 18.88.070.
H. Septic: The Applicant shall secure any necessary septic permit approval for each nonfarm dwelling.
Farm Tax Deferral Disqualification: Prior to the issuance of building permits, the Applicant shall produce
evidence from the County Assessor's Office that the parcel upon which the dwelling is proposed has been
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 59 of 61
disqualified for special assessment at value for farm use under ORS 308.370 or other special assessment
under ORS 308.765, 321.352, 321.730 or 321.815, and that any additional tax or penalty imposed by the
County Assessor as a result of disqualification has been paid.
J. Prior to issuance of building permits, Applicant shall sign and record in the Deschutes County Book of
Records a statement declaring that the Applicant and his successors will not now or in the future complain
about the allowed surface mining activities on the adjacent surface mining site. A copy of this recording
shall be provided to Deschutes County Planning, prior to issuance of building permits.
K. Road Naming: Prior to the issuance of building permits for any of the non -farm dwellings, the existing
unnamed roadway which provides access to the subject property shall be assigned a name in accordance
with the procedures in DCC 16.16.030. This requires the submittal and approval of a Road Naming
Application.
L. Firebreaks and Fuel Break: Prior to the issuance of any building permit, the Applicant shall construct and
maintain the firebreaks detailed below on land surrounding the structure and access road that are owned
or controlled by the owner. These required fuel breaks shall be maintained at all times.
1. Primary Firebreak. Prior to use, a primary firebreak, not less than 10 feet wide, shall be
constructed containing nonflammable materials. This may include lawn, walkways, driveways,
gravel borders or other similar materials.
2. Secondary Firebreak. A secondary firebreak of not less than 20 feet shall be constructed outside
the primary firebreak. This firebreak need not be bare ground, but can include a lawn, ornamental
shrubbery or individual or groups of trees separated by a distance equal to the diameter of the
crowns adjacent to each other, or 15 feet, whichever is greater. All trees shall be pruned to at
least eight feet in height. Dead fuels shall be removed.
3. Fuel Break. A fuel break shall be maintained, extending a minimum of 100 feet in all directions around
the secondary firebreak. Individual and groups of trees within the fuel break shall be separated by a
distance equal to the diameter of the crowns adjacent to each other, or 15 feet, whichever is greater.
Small trees and brush growing underneath larger trees shall be removed to prevent spread of fire up
into the crowns of the larger trees. All trees shall be pruned to at least eight feet in height. Dead fuels
shall be removed. The fuel break shall be completed prior to the beginning of the coming fire season.
4. No portion of a tree or any other vegetation shall extend to within 15 feet of the outlet of a
stovepipe or chimney.
M. Fire Safety Design Standards for Roads: Prior to the issuance of any building permits, the Applicant shall
provide written verification to the Planning Division from a professional engineer registered in the state of
Oregon stating the fire safety design standards for the access road extending from the NW Lower Valley
Drive right-of-way to each dwelling site is met as detailed below:
1. Roads, bridges and culverts shall be designed and maintained to support a minimum gross vehicle
weight (GVW) of 50,000 lbs. If bridges or culverts are involved in the construction of a road or
driveway, written verification of compliance with the 50,000 lb. GVW standard shall be provided
by a professional engineer registered in Oregon.
2. Access roads shall have an unobstructed horizontal clearance of not less than 20 feet and an
unobstructed vertical clearance of not less than 13.5 feet, and provide an all weather surface.
3. Turnarounds shall have a minimum of 50 feet of turn radius with an all weather surface and be
maintained for turning of fire fighting equipment.
4. Road grades should not exceed eight percent, with a maximum of 12 percent on short pitches.
Variations from these standards may be granted when topographic conditions make these
standards impractical and where the local fire protection district states their fire fighting
equipment can negotiate the proposed road grade.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 60 of 61
N. Easement: Prior to the issuance of building permits, the Applicant shall provide a copy of a recorded access
easement showing legal access from the subject parcels to NW Lower Valley Drive.
O. Prior to the issuance of building permits on Tax Lot 100, the Applicant shall prepare and submit a Wetland
Delineation to the Department of State Lands to verify the extent of potential wetlands on the subject
property. DSL's review and approval of the delineation would determine if additional state or local
permitting is required for site development.
VII. DURATION OF APPROVAL NOTICE AND APPEALS
The Applicant shall obtain a building permit for each proposed nonfarm dwelling within four (4) years from the
date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the County Code,
or this conditional use permit shall be void.
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 appeal fee, and a statement raising any issue relied upon
for appeal with sufficient specificity to afford the Hearings Body an adequate opportunity to respond to and
resolve each issue.
Copies of the 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.
Gregory J. Frank, Hearings Officer
Attachments:
1. Approved Building Envelopes
2. Farm and Forest Management Easement(s)
3. Waiver of Remonstrance(s)
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA Page 61 of 61
EXHIBIT�
HISTORICAL ROADS FOR CONDITIONAL USE PERMITS
247-21-000312-CU, 353-CU AND 354-CU
LOCATED THE NE 1 /4 NW 1 /4 OF SECTION 30,
T. 14 S., R. 12 E., W.M., DESCHUTES COUNTY, OREGON
SECTION 19
SECTION 30 2� __....
141200 00070 \-N 1
GROSSMAN. SECT/ION 30 ER
RENEWS: 12/31 /23
NOTE: LOCATION OF
HISTORIC ROADS BASED ON
USDA AERIAL DATED
7-26-90 AND
1985 WAC-85OR TAKEN ON
MAY 5, 1985 BY WAC AND
SITE SURVEY ON
12-07-2022
1412000000706
BSC LLC
BUILDABLE AREAS
WITHIN 300' OF
HISTORIC ROADS AND
BUILDING SETBACKS
TAX LOT 300
1412000003201
DESCHUTES COUNTY
ROGER & CYNTHIA I
1412000001999
JANET D WHITMORE
LIVING TRUST
CL HIS
ROADS
CN 1/16TH
/ CORNER
CLCL HISTORIC ROAD -
TYE ENGINEERING, INC.
725 NW HILL, BEND, OREGON 97703 (541) 389-6959
DATE: 01-12-2023 1 SCALE: 1 "=200' 1 DRAWN BY: P.A.T. I2803-Grossman Site Plan.dwg
FARM AND FOREST MANAGEMENT EASEMENTS
As a standard condition of a conditional use permit approval for a nonfarm dwelling in the
Exclusive Farm Use Zone, the attached Farm and Forest Management Easement and an
Exhibit 'A," if needed, must be signed by the property owner and recorded with the Deschutes
County Clerk. Exhibit A, if present, is a legal description (a metes and bounds description) that
must be recorded in conjunction with the Easement.
You will need to sign the document before a notary public and then take it to the Clerk's office
for recording. Please provide the Planning Division with a copy after recording.
To record the document, take the signed and notarized Easement and Exhibit "A" (if included) to
the County Clerk's office, 1300 NW Wall Street, Suite 202, Bend, Oregon, 97701, between 8:00
a.m. and 4:00 p.m. There is a recording fee for the first page and a recording fee for each
additional page. After this is accomplished, you must furnish copies of the recorded documents
to the Planning Division. The Planning Division must have copies of the recorded Easement
before the County issues any building permits.
If you have any questions regarding this matter, please feel free to contact the Planning Division
at 388-6575.
Return to:
Haleigh King, Associate Planner
Community Development Department
117 NW Lafayette, P.O. Box 6005
Bend, Oregon 97708-6005
FARM AND FOREST MANAGEMENT EASEMENT -
CONDITIONAL USE
Roger W Grossmann and Cynthia M Grossmann, Trustees of the Roger & Cynthia
Grossmann Revocable Living Trust, herein called the Grantors, are the owners of real property
described as set forth in that certain Bargain and Sale Deed dated March 23, 2023, as recorded
in the Official Records of Deschutes County as instrument number 2023-06531, and by this
reference incorporated herein, and further identified or depicted on Deschutes County
Assessor's Map 14-12-30BA, as tax lot 100. In accordance with the conditions set forth in the
decision of the Deschutes County Planning Division approving Land Use Permit 247-23-
000293-CU, Grantors hereby grant to the owner(s) of all property adjacent to the above
described property (Grantees), a perpetual non-exclusive farm and forest practices
management easement as follows:
1. The Grantors, their heirs, successors, and assigns, hereby acknowledge by the granting of
this easement that the above -described property is situated in a designated farm zone in
Deschutes County, Oregon, and may be subjected to conditions resulting from farming or
forest practices on adjacent lands. Such operations include management and harvesting
of timber, disposal of slash, reforestation, application of chemicals, road construction and
maintenance, 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, and other accepted
and customary farm and forest management activities conducted in accordance with
federal and state laws. Such farm or forest management activities ordinarily and
necessarily produce noise, dust, smoke, and other conditions that may conflict with
Grantors' use of Grantors' property for residential purposes. Except as allowed by ORS
30.930 through 30.947, Grantors hereby waive all common law rights to object to normal,
non -negligent farm and forest management activities legally conducted on adjacent lands
that may conflict with Grantors' use of Grantors' property for residential purposes, and
Grantors hereby give an easement to the adjacent property owners for the resultant
impact on Grantors' property caused by the farm and forest management activities on
adjacent lands.
2. Grantors shall comply with all restrictions and conditions for maintaining residences in
farm and forest zones that may be required by State, Federal, and local land use laws
and regulations. Grantors shall complywith all fire safety regulations developed bythe
Oregon Department of Forestry for residential development within a forest zone.
This easement is appurtenant to all property adjacent to the above -described property, and
shall bind the heirs, successors, and assigns of Grantors, and shall endure for the benefit of
the adjacent landowners, their heirs, successors, and assigns. The adjacent landowners, their
heirs, successors, and assigns are hereby expressly granted the right of third -party
enforcement of this easement.
Signature Pages to follow
Dated this
day of 20_ GRANTORS
Roger & Cynthia Grossmann Revocable Living
Trust
Roger W Grossmann, Trustee
Cynthia M Grossmann, Trustee
STATE OF OREGON )
ss.
COUNTY OF )
On this day of , 20_, before me, a Notary Public in and for
said County and State, personally appeared Roger W Grossmann and Cynthia M Grossmann,
known to me to be the Trustees of the Roger & Cynthia Grossmann Revocable Living Trust,
who acknowledged to me that they executed the same freely and voluntarily on behalf of said
Tri i-.t.
Notary Public for
My Commission Expires:
File No: 247-23-000293-CU Farm and Forest Management Easement 2
Return to:
Haleigh King, Associate Planner
Community Development Department
117 NW Lafayette, P.O. Box 6005
Bend, Oregon 97708-6005
m
FARM AND FOREST MANAGEMENT EASEMENT —
CONDITIONAL USE
Roger W Grossmann and Cynthia M Grossmann, Trustees of the Roger & Cynthia
Grossmann Revocable Living Trust, herein called the Grantors, are the owners of real property
described as set forth in that certain Bargain and Sale Deed dated March 23, 2023, as recorded
in the Official Records of Deschutes County as instrument number 2023-06531, and by this
reference incorporated herein, and further identified or depicted on Deschutes County
Assessor's Map 14-12-30BA, as tax lot 200. In accordance with the conditions set forth in the
decision of the Deschutes County Planning Division approving Land Use Permit 247-23-
000294-CU, Grantors hereby grant to the owner(s) of all property adjacent to the above
described property (Grantees), a perpetual non-exclusive farm and forest practices
management easement as follows:
1. The Grantors, their heirs, successors, and assigns, hereby acknowledge by the granting of
this easement that the above -described property is situated in a designated farm zone in
Deschutes County, Oregon, and may be subjected to conditions resulting from farming or
forest practices on adjacent lands. Such operations include management and harvesting
of timber, disposal of slash, reforestation, application of chemicals, road construction and
maintenance, 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, and other accepted
and customary farm and forest management activities conducted in accordance with
federal and state laws. Such farm or forest management activities ordinarily and
necessarily produce noise, dust, smoke, and other conditions that may conflict with
Grantors' use of Grantors' property for residential purposes. Except as allowed by ORS
30.930 through 30.947, Grantors hereby waive all common law rights to object to normal,
non -negligent farm and forest management activities legally conducted on adjacent lands
that may conflict with Grantors' use of Grantors' property for residential purposes, and
Grantors hereby give an easement to the adjacent property owners for the resultant
impact on Grantors' property caused by the farm and forest management activities on
adjacent lands.
2. Grantors shall comply with all restrictions and conditions for maintaining residences in
farm and forest zones that may be required by State, Federal, and local land use laws
and regulations. Grantors shall comply with all fire safety regulations developed by the
Oregon Department of Forestry for residential development within a forest zone.
This easement is appurtenant to all property adjacent to the above -described property, and
shall bind the heirs, successors, and assigns of Grantors, and shall endure for the benefit of
the adjacent landowners, their heirs, successors, and assigns. The adjacent landowners, their
heirs, successors, and assigns are hereby expressly granted the right of third -party
enforcement of this easement.
Signature Pages to follow
Dated this day of 20_ GRANTORS
Roger & Cynthia Grossmann Revocable Living
Trust
Roger W Grossmann, Trustee
Cynthia M Grossmann, Trustee
STATE OF OREGON )
) ss.
COUNTY OF
On this day of , 20_, before me, a Notary Public in and for
said County and State, personally appeared Roger W Grossmann and Cynthia M Grossmann,
known to me to be the Trustees of the Roger & Cynthia Grossmann Revocable Living Trust,
who acknowledged to me that they executed the same freely and voluntarily on behalf of said
Trust.
Notary Public for
My Commission Expires:
File No: 247-23-000294-CU Farm and Forest Management Easement 2
Return to:
Haleigh King, Associate Planner
Community Development Department
117 NW Lafayette, P.O. Box 6005
Bend, Oregon 97708-6005
FARM AND FOREST MANAGEMENT EASEMENT —
CONDITIONAL USE
Roger W Grossmann and Cynthia M Grossmann, Trustees of the Roger & Cynthia
Grossmann Revocable Living Trust, herein called the Grantors, are the owners of real property
described as set forth in that certain Bargain and Sale Deed dated March 23, 2023, as recorded
in the Official Records of Deschutes County as instrument number 2023-06533, and by this
reference incorporated herein, and further identified or depicted on Deschutes County
Assessor's Map 14-12-30BA, as tax lot 300. In accordance with the conditions set forth in the
decision of the Deschutes County Planning Division approving Land Use Permit 247-23-
000295-CU, Grantors hereby grant to the owner(s) of all property adjacent to the above
described property (Grantees), a perpetual non-exclusive farm and forest practices
management easement as follows:
1. The Grantors, their heirs, successors, and assigns, hereby acknowledge by the granting of
this easement that the above -described property is situated in a designated farm zone in
Deschutes County, Oregon, and may be subjected to conditions resulting from farming or
forest practices on adjacent lands. Such operations include management and harvesting
of timber, disposal of slash, reforestation, application of chemicals, road construction and
maintenance, 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, and other accepted
and customary farm and forest management activities conducted in accordance with
federal and state laws. Such farm or forest management activities ordinarily and
necessarily produce noise, dust, smoke, and other conditions that may conflict with
Grantors' use of Grantors' property for residential purposes. Except as allowed by ORS
30.930 through 30.947, Grantors hereby waive all common law rights to object to normal,
non -negligent farm and forest management activities legally conducted on adjacent lands
that may conflict with Grantors' use of Grantors' property for residential purposes, and
Grantors hereby give an easement to the adjacent property owners for the resultant
impact on Grantors' property caused by the farm and forest management activities on
adjacent lands.
2. Grantors shall comply with all restrictions and conditions for maintaining residences in
farm and forest zones that may be required by State, Federal, and local land use laws
and regulations. Grantors shall comply with all fire safety regulations developed by the
Oregon Department of Forestry for residential development within a forest zone.
This easement is appurtenant to all property adjacent to the above -described property, and
shall bind the heirs, successors, and assigns of Grantors, and shall endure for the benefit of
the adjacent landowners, their heirs, successors, and assigns. The adjacent landowners, their
heirs, successors, and assigns are hereby expressly granted the right of third -party
enforcement of this easement.
Signature Pages to follow
Dated this day of 20_ GRANTORS
Roger & Cynthia Grossmann Revocable Living
Trust
Roger W Grossmann, Trustee
Cynthia M Grossmann, Trustee
STATE OF OREGON )
) ss.
COUNTY OF )
On this day of , 20_, before me, a Notary Public in and for
said County and State, personally appeared Roger W Grossmann and Cynthia M Grossmann,
known to me to be the Trustees of the Roger & Cynthia Grossmann Revocable Living Trust,
who acknowledged to me that they executed the same freely and voluntarily on behalf of said
Trust.
Notary Public for
My Commission Expires:
File No: 247-23-000295-CU Farm and Forest Management Easement 2
WAIVERS
As a standard condition of any Site Plan approval in a Surface Mining Impact
Area, the attached Waiver of Remonstrance form and an Exhibit "A" must be
signed by the property owner and recorded with the Deschutes County Clerk.
Exhibit "A" is a legal description (Subdivision, Lot, and Block Numbers, or a
metes and bounds description) that must be recorded in conjunction with the
Waiver.
To record the document, take the signed and notarized Waiver and attached
Exhibit "A" to the County Clerk's office, 1300 NW Wall Street, Suite 202, Bend,
Oregon, 97701, between 8:00 a.m. and 4:00 p.m. There is a recording fee for
the first page and for each additional page. After this is accomplished, bring
copies of the recorded documents to the Planning Division. The Planning
Division must have copies of the recorded documents prior to the issuance of
any building permits.
If you have any questions regarding this matter, please feel free to contact the
Planning Division at 388-6575.
Return to:
Haleigh King, Associate Planner
Community Development Department
117 NW Lafayette, P.O. Box 6005
Bend, Oregon 97708-6005
EASEMENT
(WAIVER OF REMONSTRANCE)
A
As a condition of the grant of development approval pursuant to Chapter 18.56 of the
Deschutes County Code, for property identified on Deschutes County Assessor's Map 14-12-
30BA, as tax lot 100, and further described as set forth in that certain Bargain and Sale Deed
dated March 23, 2023, as recorded in the Official Records of Deschutes County as instrument
number 2023-06531 (hereafter referred to as "burdened property"), Grantors hereby grant
and/or relinquish to the owners of record of the property described Surface Mining Site No(s).
324, as described as set forth in that certain Bargain and Sale Deed dated March 23, 2023, as
recorded in the Official Records of Deschutes County as instrument number 2023-06531, and
further identified on Deschutes County Assessor's Map 14-12, as Tax Lot 702, (hereafter
referred to as the "benefited property"), as Grantees, any and all rights of remonstrance or
protest that they may have by virtue of ownership of the burdened property or otherwise to
the visual, noise, dust, reclamation, traffic and any other similar impacts from the following
protected activities:
(1) Surface mining activities lawfully conducted in connection with a pre-existing mine, as
that term is defined in Section 18.52.160(B) of the Deschutes County Code, on the
benefited property; or
(2) Surface mining activities that might be lawfully conducted in the future on the
benefited property under County or State permits or exemptions.
Grantors acknowledge that by virtue of such grant they have no remaining rights to complain
or protest about the protected activities described above.
This Waiver of Remonstrance Easement runs with the land and is binding upon the heirs,
successors and assigns of the undersigned's interest in the burdened property or any persons
acquiring through the undersigned an interest in the burdened property.
Dated this day of 20_ GRANTORS
Roger & Cynthia Grossmann Revocable Living
Trust
Roger W Grossmann, Trustee
Cynthia M Grossmann, Trustee
247-23-000737-SMA Waiver of Remonstrance Page 1 of 2
STATE OF OREGON )
) ss.
COUNTY OF
On this day of , 20 before me, a Notary Public in and for
said County and State, personally appeared Roger W Grossmann and Cynthia M Grossmann,
known to me to be the Trustees of the Roger & Cynthia Grossmann Revocable Living Trust,
who acknowledged to me that they executed the same freely and voluntarily on behalf of said
Trust.
Notary Public for
My Commission Expires:
247-23-000737-SMA Waiver of Remonstrance Page 2 of 2
Return to:
Haleigh King, Associate Planner
Community Development Department
117 NW Lafayette, P.O. Box 6005
Bend, Oregon 97708-6005
EASEMENT
(WAIVER OF REMONSTRANCE)
As a condition of the grant of development approval pursuant to Chapter 18.56 of the
Deschutes County Code, for property identified on Deschutes County Assessor's Map 14-12-
30BA, as tax lot 200, and further described as set forth in that certain Bargain and Sale Deed
dated March 23, 2023, as recorded in the Official Records of Deschutes County as instrument
number 2023-06531 (hereafter referred to as "burdened property"), Grantors hereby grant
and/or relinquish to the owners of record of the property described Surface Mining Site No(s).
324, as described as set forth in that certain Bargain and Sale Deed dated March 23, 2023, as
recorded in the Official Records of Deschutes County as instrument number 2023-06531, and
further identified on Deschutes County Assessor's Map 14-12, as Tax Lot 702, (hereafter
referred to as the "benefited property"), as Grantees, any and all rights of remonstrance or
protest that they may have by virtue of ownership of the burdened property or otherwise to
the visual, noise, dust, reclamation, traffic and any other similar impacts from the following
protected activities:
(1) Surface mining activities lawfully conducted in connection with a pre-existing mine, as
that term is defined in Section 18.52.160(B) of the Deschutes County Code, on the
benefited property; or
(2) Surface mining activities that might be lawfully conducted in the future on the
benefited property under County or State permits or exemptions.
Grantors acknowledge that by virtue of such grant they have no remaining rights to complain
or protest about the protected activities described above.
This Waiver of Remonstrance Easement runs with the land and is binding upon the heirs,
successors and assigns of the undersigned's interest in the burdened property or any persons
acquiring through the undersigned an interest in the burdened property.
Dated this day of 20_ GRANTORS
Roger & Cynthia Grossmann Revocable Living
Trust
Roger W Grossmann, Trustee
Cynthia M Grossmann, Trustee
247-23-000738-SMA Waiver of Remonstrance Pagel of 2
STATE OF OREGON )
) ss.
COUNTY OF
On this day of , 20 before me, a Notary Public in and for
said County and State, personally appeared Roger W Grossmann and Cynthia M Grossmann,
known to me to be the Trustees of the Roger & Cynthia Grossmann Revocable Living Trust,
who acknowledged to me that they executed the same freely and voluntarily on behalf of said
Trust.
Notary Public for
My Commission Expires:
247-23-000738-SMA Waiver of Remonstrance Page 2 of 2
Return to:
Haleigh King, Associate Planner
Community Development Department
117 NW Lafayette, P.O. Box 6005
Bend, Oregon 97708-6005
EASEMENT
(WAIVER OF REMONSTRANCE)
As a condition of the grant of development approval pursuant to Chapter 18.56 of the
Deschutes County Code, for property identified on Deschutes County Assessor's Map 14-12-
30BA, as tax lot 300, and further described as set forth in that certain Bargain and Sale Deed
dated March 23, 2023, as recorded in the Official Records of Deschutes County as instrument
number 2023-06533 (hereafter referred to as "burdened property"), Grantors hereby grant
and/or relinquish to the owners of record of the property described Surface Mining Site No(s).
324, as described as set forth in that certain Bargain and Sale Deed dated March 23, 2023, as
recorded in the Official Records of Deschutes County as instrument number 2023-06531, and
further identified on Deschutes County Assessor's Map 14-12, as Tax Lot 702, (hereafter
referred to as the "benefited property"), as Grantees, any and all rights of remonstrance or
protest that they may have by virtue of ownership of the burdened property or otherwise to
the visual, noise, dust, reclamation, traffic and any other similar impacts from the following
protected activities:
(1) Surface mining activities lawfully conducted in connection with a pre-existing mine, as
that term is defined in Section 18.52.160(B) of the Deschutes County Code, on the
benefited property; or
(2) Surface mining activities that might be lawfully conducted in the future on the
benefited property under County or State permits or exemptions.
Grantors acknowledge that by virtue of such grant they have no remaining rights to complain
or protest about the protected activities described above.
This Waiver of Remonstrance Easement runs with the land and is binding upon the heirs,
successors and assigns of the undersigned's interest in the burdened property or any persons
acquiring through the undersigned an interest in the burdened property.
Dated this day of 20_ GRANTORS
Roger & Cynthia Grossmann Revocable Living
Trust
Roger W Grossmann, Trustee
Cynthia M Grossmann, Trustee
247-23-000739-SMA Waiver of Remonstrance Page 1 of 2
STATE OF OREGON )
) ss.
COUNTY OF
On this day of , 20 before me, a Notary Public in and for
said County and State, personally appeared Roger W Grossmann and Cynthia M Grossmann,
known to me to be the Trustees of the Roger & Cynthia Grossmann Revocable Living Trust,
who acknowledged to me that they executed the same freely and voluntarily on behalf of said
Trust.
Notary Public for
My Commission Expires:
247-23-000739-SMA Waiver of Remonstrance Page 2 of 2
@ @ @ m m
N N N N N
U U U U U
m m m m
N N N N N
U U U U U
<Y V V V V
m m m m m
N N N N N
:5 z5
U U U U U
M co M M M
o m m m m m
N N N N N
'a c� M M cM m
U N N N N N
0 L 0 m
NOTICE OF HEARINGS OFFICER'S DECISION
The Deschutes County Hearings Officer has issued a decision on the land use application(s)
described below:
FILE NUMBERM: 247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA
OWNER: GROSSMANN, ROGER W & CYNTHIA M
SUBJECT PROPERTY: Property #1: 69900 NW Lower Valley Drive, Terrebonne, OR
(Map 14-12-30BA, Tax Lot 100)
Property #2: 69850 NW Lower Valley Drive, Terrebonne, OR
(Map 14-12-30BA, Tax Lot 200)
Property #3: 69800 NW Lower Valley Drive, Terrebonne, OR
(Map 14-12-30BA, Tax Lot 300)
Collectively referred to as the "Subject Property."
APPLICANT: Lisa Andrach
Fitch and Neary, PC
210 SW 5t" Street, #2
Redmond, OR 97756
REQUEST: Conditional Use Permit and Surface Mine Impact Area Review to
establish three (3), non -farm dwellings on three separate legal lots of
record (collectively "the Subject Property") in the Exclusive Farm Use -
Sisters Cloverdale Subzone (EFU-SC), Wildlife Area (WA) Combining
Zone and Surface Mining Impact Area Combining Zone (SMIA).
STAFF CONTACT: Haleigh King, Associate Planner
Phone: 541-383-6710
Email: Haleigh.King@deschutes.org
RECORD: Record items can be viewed and downloaded from:
www.deschutes.org/247-23-000293-CU-294-CU-295-CU
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q, (541) 388-6575 @cddPdeschutes.org ®www.deschutes.org/cd
APPLICABLE CRITERIA: Deschutes County Code (DCC)
Title 18, Deschutes County Zoning Ordinance
Chapter 18.16, Exclusive Farm Use Zones (EFU)
Chapter 18.56, Surface Mining Impact Area Combining Zone
(SMIA)
Chapter 18.88, Wildlife Area Combining Zone (WA)
Title 22, Deschutes County Development Procedures Ordinance
DECISION: The Hearings Officer finds the following:
Approval of Applicant's requests for conditional use and surface
mining impact area review to establish three (3) non -farm dwellings on
three separate legal lots of record in the EFU zone.
Denial of Applicant's requested DCC 18.88.060 B.1 exception to site the
dwelling envelopes within 300-feet of the road located on the west side
of the subject property.
CONDITIONS OF APPROVAL:
A. This approval is based upon the application, site plan, specifications, and supporting
documentation submitted by the Applicant. Any substantial change in this approved use
will require review through a new land use application.
B. The property owner shall obtain any necessary permits from the Deschutes County
Building Division and Onsite Wastewater Division,
C. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as
allowed by DCC 18.120.040
D. Structural setbacks from any north lot line shall meet the solar setback requirements in
DCC 18.116.180.
In addition to the setbacks set forth herein, any greater setbacks required by applicable
building or structural codes adopted by the State of Oregon and/or the County under DCC
15.04 shall be met.
F. Farm & Forest Management Easement: Prior to the issuance of any building permit for
a nonfarm dwelling, the property owner shall sign and record in the deed records for the
County, a document binding the landowner, and the landowner's successors in interest,
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA
Page 2 of 5
prohibiting them from pursuing a claim for relief or cause of action alleging injury from
farming or forest practices for which no action or claim is allowed under ORS 30.936 or
30.937. The Applicant shall submit a copy of the recorded Farm and Forest Management
Easement to the Planning Division.
- G. All new fences shall comply with DCC 18.88.070.
H. Septic: The Applicant shall secure any necessary septic permit approval for each nonfarm
dwelling.
1. Farm Tax Deferral Disqualification: Prior to the issuance of building permits, the Applicant
shall produce evidence from the County Assessor's Office that the parcel upon which the
dwelling is proposed has been disqualified for special assessment at value for farm use
under ORS 308.370 or other special assessment under ORS 308.765, 321.352, 321.730 or
321.815, and that any additional tax or penalty imposed by the County Assessor as a result
of disqualification has been paid.
Prior to issuance of building permits, Applicant shall sign and record in the Deschutes
County Book of Records a statement declaring that the Applicant and his successors will
not now or in the future complain about the allowed surface mining activities on the
adjacent surface mining site. A copy of this recording shall be provided to Deschutes
County Planning, prior to issuance of building permits.
K. Road Naming: Prior to the issuance of building permits for any of the non -farm
dwellings, the existing unnamed roadway which provides access to the subject property
shall be assigned a name in accordance with the procedures in DCC 16.16.030. This
requires the submittal and approval of a Road Naming Application.
L. Firebreaks and Fuel Break: Prior to the issuance of any building permit, the Applicant
shall construct and maintain the firebreaks detailed below on land surrounding the
structure and access road that are owned or controlled by the owner. These required fuel
breaks shall be maintained at all times.
1. Primary Firebreak. Prior to use, a primary firebreak, not less than 10 feet wide, shall
be constructed containing nonflammable materials. This may include lawn, walkways,
driveways, gravel borders or other similar materials.
2. Secondary Firebreak. A secondary firebreak of not less than 20 feet shall be
constructed outside the primary firebreak. This firebreak need not be bare ground,
but can include a lawn, ornamental shrubbery or individual or groups of trees
separated by a distance equal to the diameter of the crowns adjacent to each other,
or 15 feet, whichever is greater. All trees shall be pruned to at least eight feet in height.
Dead fuels shall be removed.
3. Fuel Break. A fuel break shall be maintained, extending a minimum of 100 feet in all
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA
Page 3 of 5
directions around the secondary firebreak. Individual and groups of trees within the fuel
break shall be separated by a distance equal to the diameter of the crowns adjacent to
each other, or 15 feet, whichever is greater. Small trees and brush growing underneath
larger trees shall be removed to prevent spread of fire up into the crowns of the larger
trees. All trees shall be pruned to at least eight feet in height. Dead fuels shall be
removed. The fuel break shall be completed prior to the beginning of the coming fire
season.
4. No portion of a tree or any other vegetation shall extend to within 15 feet of the outlet
of a stovepipe or chimney.
M. Fire Safety Design Standards for Roads: Prior to the issuance of any building permits,
the Applicant shall provide written verification to the Planning Division from a professional
engineer registered in the state of Oregon stating the fire safety design standards for the
access road extending from the NW Lower Valley Drive right-of-way to each dwelling site is
met as detailed below:
Roads, bridges and culverts shall be designed and maintained to support a
minimum gross vehicle weight (GVW) of 50,000 lbs. If bridges or culverts are
involved in the construction of a road or driveway, written verification of compliance
with the 50,000 lb. GVW standard shall be provided by a professional engineer
registered in Oregon.
2. Access roads shall have an unobstructed 'horizontal clearance of not less than 20
feet and an unobstructed vertical clearance of not less than 13.5 feet, and provide
an all weather surface.
3. Turnarounds shall have a minimum of 50 feet of turn radius with an all weather
surface and be maintained for turning of fire fighting equipment.
4. Road grades should not exceed eight percent, with a maximum of 12 percent on
short pitches. Variations from these standards may be granted when topographic
conditions make these standards impractical and where the local fire protection
district states their fire fighting equipment can negotiate the proposed road grade.
N. Easement: Prior to the issuance of building permits, the Applicant shall provide a copy of a
recorded access easement showing legal access from the subject parcels to NW Lower
Valley Drive.
O. Prior to the issuance of building permits on Tax Lot 100, the Applicant shall prepare and
submit a Wetland Delineation to the Department of State Lands to verify the extent of
potential wetlands on the subject property. DSL's review and approval of the delineation
would determine if additional state or local permitting is required for site development.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA
Page 4 of 5
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.
247-23-000293-CU, 294-CU, 295-CU, 737-SMA, 738-SMA, 739-SMA
Page 5 of 5