2024-265-Minutes for Meeting July 24,2024 Recorded 9/18/2024E S COG2-�
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
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Recorded in Deschutes County CJ2024_265
Steve Dennison, County Clerk
Commissioners'Journal 09/18/2024 4:18:11 PM
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2024-265
BOCC MEETING MINUTES
WEDNESDAY July 24, 2024
Barnes Sawyer Rooms
Live Streamed Video
Present were Commissioners Patti Adair, Tony DeBone and Phil Chang. Also present were
County Administrator Nick Lelack, Senior Assistant Legal Counsel Kim Riley and
BOCC Executive Assistant Brenda Fritsvold.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal webpage www.deschutes.org/meetings.
CALL TO ORDER: Chair Adair called the meeting to order at 8:00 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT:
Carl Shoemaker spoke to the only effective way to remove weeds from landscaping.
Commissioner Adair acknowledged the number of fires burning across the state
and said many people are losing homes, pets, and their way of life.
CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda.
1. Approval of consent to easements associated with property conveyed to
Administrative School District #1 (Bend La Pine School District)
2. Acceptance of funding from the Oregon Health Authority to support a Secure
Residential Treatment Facility, IGA #PO-44300-00026008-3
BOCC MEETING JULY 24, 2024 PAGE 1 OF 15
3. Approval of the purchase of Commercial Property Insurance
4. Approval of Document No. 2024-496 renewing the contract with Iris Telehealth
5. Consideration of Board Signature on letter appointing Beth Bailey for service on
the Upper Deschutes Watershed Council
6. Approval of minutes of the BOCC June 5, 2024 meeting
DEBONE: Move approval of the Consent Agenda as presented
CHANG: Second
VOTE: CHANG: Yes
DEBONE: Yes
ADAIR: Chair votes yes. Motion Carried
Commissioner DeBone commented on the funding being accepted from the Oregon
Health Authority to construct and operate a secure residential treatment facility.
Commissioner Adair said these facilities should be able to have more than 16 beds.
ACTION ITEMS:
7. Public Hearing: Remand of 710 Properties/Eden Properties Plan Amendment
and Zone Change application
Haleigh King, Associate Planner, explained that under County Code, only persons
who were entitled to receive notice of a land use application or who took part in
the prior County process can participate in a public hearing regarding a remand.
Adding that the scope of today's public hearing is limited to the five specified
issues on remand from the Oregon Land Use Board of Appeals (LUBA), she said
new evidence is allowed, but only if it pertains to the issues on remand.
Commissioner DeBone reminded that the Board had originally approved the
recommendation of the Hearings Officer to approve the applications for this
Comprehensive Plan amendment and Zoning change. The Board's decision was
then appealed and has now come back on remand by LUBA.
Continuing, King listed the five specific issues on remand from LUBA, as follows:
• Findings related to the ability to use the subject property for farm use in
conjunction with other property;
• Findings related to the source of feed for farm uses involving animals;
• Findings related to whether the subject property is suitable for farm use as a
BOCC MEETING JULY 24, 2024 PAGE 2 OF 15
site for the construction and maintenance of equipment and facilities used for
farm activities;
Findings related to whether retaining the property's agricultural designation is
necessary to permit farm practices on adjacent or nearby lands; and
Findings related to impacts on surrounding land use in accordance with
comprehensive plan policies and zoning ordinances, specifically, water,
wastewater, and traffic impacts on surrounding agricultural lands and the
agricultural industry.
The public hearing was opened at 8:13 am.
Representing the applicant, Kenneth Katzaroff referred to additional materials
which were submitted into the record yesterday.
Dale Stockham, the property owner, spoke to his reasons for applying for the
Comprehensive Plan and Zoning changes, saying the property is not resource
land and has no known history of farm use. He described his plans to initiate a
thoughtful development for the community's benefit, saying that all profits
generated by any development will benefit non-profit organizations in Central
Oregon.
Katzaroff then shared photos of the property, noting it directly adjoins land to the
north which is zoned RR- i 0 and has five -acre lots. He described the property as
isolated, noted the presence of significant vertical slopes measuring 200 feet or
higher, and reviewed a map showing the zoning of other properties in the area.
Katzaroff then specifically addressed the five issues on remand, as follows:
1. The property is not suitable for livestock grazing, and a livestock operation
would result in financial losses.
In response to Commissioner Chang, Katzaroff said the applicant has provided
supplemental information to buttress the record on this question.
2. The property cannot be used in conjunction with nearby/adjacent farm uses
such that it is "suitable" for farm use, because nearby and adjacent farm uses
are hay, grass, and other irrigated pastureland operations, and the property
lacks sufficient irrigation water rights.
3. The property is not suitable as a site for construction and maintenance of
farm equipment and facilities because the land use pattern of the area does
not support this use, and it would not be commercially viable. Also, the
BOCC MEETING JULY 24, 2024 PAGE 3 OF 15
property lacks urban services and transportation access that would be
needed for these uses.
4. It is not necessary for the property to retain EFU zoning in order to permit
farm practices on adjacent or nearby agricultural lands.
5. The EFU zoning of the property does not have to be maintained to preserve
and maintain agricultural lands and the agricultural industry.
Katzaroff added that no challenge was made to the water analysis conducted by
GSI Water Solutions which was previously submitted by the applicant. Further,
the amount of water use projected for the proposed residential development is
not significant.
Brian Rabe, soil scientist representing the applicant, stated that the property is
primarily rock, and it would be challenging to attempt to use the site for grazing
due to its geology and topography as well as the prevalence of juniper trees.
Joe Bestman, representing the applicant with regard to transportation criteria,
said the property does not connect to or abut Lower Bridge Way and its access is
from Coyner Avenue.
Commissioner Chang asked if this land was zoned EFU when it was purchased a
few years ago, which Katzaroff confirmed. Katzaroff said he did not know if the
property would have been worth more if it had been zoned for residential
development.
Angie Brewer, representing the Oregon Department of Land Use and
Conservation Development (DLCD), said because DLCD did not have sufficient
time to respond to the new information which was submitted by the applicant
late yesterday, it requests that the record remain open following the public
hearing to allow adequate time for a response.
Charles Thomas stated he lives on the property and could attest that it has never
been a problem to encounter farm equipment on the road, which happens on a
regular basis. Saying that farm uses and residential uses are symbiotic, he noted
that this land was zoned EFU without anyone having viewed it in person. He
believed that the proposed development could be done in a responsible manner
that would benefit the community.
In response to Commissioner DeBone, Thomas spoke to the amount of water
consumed by juniper trees, saying that if the juniper was removed, the area
BOCC MEETING JULY 24, 2024 PAGE 4 OF 15
would realize a net gain of groundwater volume. He said the development will
encourage less use of groundwater than allowed by law.
Billy Buchanan said he lives next to the property and uses his own 40 acres for
agricultural purposes. He opposed adding 71 new homes to the area, saying this
would negatively affect nearby residents in terms of increased traffic and
groundwater usage. He believed the 710/Eden property could be used for grazing
if properly managed.
Responding to Commissioner Chang, Buchanan disputed that the property is too
steep and rocky to be used for grazing. He spoke to available effective strategies
to enable using this property for farming uses, saying it is possible to introduce
grasses and easy to haul water in. He noted the presence of non-native grasses
on the property which are a viable feed source and questioned how those were
introduced.
In response to questions from Commissioners, Buchanan addressed the
profitability of his farm's operations, which are not high -volume commercial but
rather serve specialty markets. He confirmed that he has grazed livestock on land
that had less forage and was steeper and rockier than the 710/Eden property.
Tim Phillips objected that rezoning the property to RR10 would enable not just
residential development, but also HDUs, saying this would dramatically change
the traffic and groundwater usage impacts. He was concerned about the
availability of water and noted that all water in the area is sourced from
groundwater, and droughts affect both domestic and irrigation wells. He knew of
approximately 25 wells in the immediate area that have either gone dry or had to
be redrilled to a greater depth since 2017. He was also concerned about the
potential for negative impacts from increased traffic, noting that Spruce Road,
the main connection to Deschutes Crossing, is an unmaintained dirt road.
Del Johnson said he has raised cattle near the subject property for a number of
years. He stated his support for protecting EFU land, which he deemed important
for seasonal grazing, and said the property does have forage material growing on
it. Saying that rezoning to RR10 would have a significant impact on the EFU land
in the nearby area, he said the 710/Eden property is usable farmland and can be
used in conjunction with other agricultural entities, meaning it does not have to
be a standalone profitable piece of agricultural property. He shared his concerns
about the availability of water and declining groundwater levels and the
incompatibility of increasing residential traffic on roads heavily used by farm
equipment.
BOCC MEETING DULY 24, 2024 PAGE 5 OF 15
Ryder Redfield noted the overwhelming amount of public opposition to this
rezone proposal and listed particular concerns that could result, including
increased traffic and the loss of farmland. He questioned if any evidence exists
that the proposed rezone would be beneficial to the community.
Lori Johnson was surprised at having to defend EFU zoning in Oregon against
developers, who have more resources to fight the protection of farmland from
development and urban sprawl. Saying that the proposed rezone is exactly the
reason that relevant regulations were adopted, she objected that rezoning this
property would not protect Oregon farmland or the agricultural way of life. She
concluded that more RR10-zoned land is not needed since more than 24 square
miles of undeveloped RR10-zoned land is already available in Deschutes County.
Elizabeth Buchanan spoke as the owner and resident of adjacent property, where
she and her family raise restaurant -quality all -natural grass-fed beef. She said the
710/Eden property would be perfect for the expansion of these operations as it is
suitable for various farming uses, including outbuildings and equipment storage.
Steve Ahlberg did not want his neighborhood to experience urban sprawl. He
spoke to statewide protections for farmland and said rezoning is a serious issue
and not to be taken lightly. He quoted a goal of the Department of Land
Conservation and Development which states that wasteland in an EFU zone
which is neither economically tillable nor grazabie may yet under certain
conditions still be considered current employment of land for farm use. Ahlberg
lastly expressed concerns about water availability, saying his own well went dry
three years ago, and questioned the motivations of the property owner in
seeking this rezone.
Carol MacBeth, representing Central Oregon Land Watch, spoke to what she
characterized as the sweeping definition of the term "agricultural land," which is
protected in Oregon. Saying that under certain conditions, even wasteland can be
considered agricultural land, she argued that LUBA remanded this matter in part
for the Board to properly weigh the question of profitability. Along that line, she
said a horse riding/training/exercising facility is a farm use, and the property
could be used to raise goats or fowl. She concluded that stock watering is an
exempt well use.
In response to Commissioner Chang, MacBeth referenced pages 35-37 of the
decision from LUBA regarding the question of profitability of farm use on the
property. MacBeth stressed that dry land grazing is not the only available
agricultural use of the property.
BOCC MEETING DULY 24, 2024 PAGE 6 OF 15
Amin Patel, who signed up to submit testimony, was determined to be ineligible
to participate in the proceedings as he did not meet the eligibility requirements
as described at the outset of the hearing.
Megan Martin, the executive director of Furnish Hope, supported the proposed
rezone, saying the property owner is not a land developer and has pledged to
distribute any development proceeds to non-profit organizations which would
benefit many in the community.
Jamie Howsley, representing Redside Restoration Project One, LLC, said the
burden of proof is on the applicant to demonstrate that the rezone proposal
meets all required criteria. Howsley commented on possible negative
consequences of adding new residences to this area, which would increase traffic
and reduce the availability of groundwater.
A break was announced at 10:21 am. The meeting resumed at 10:26 am.
In rebuttal for the applicant, Kenneth Katzaroff clarified the high standard
determined by the Court of Appeals on the question of "necessary to nearby
farms," saying that a determination that farming is merely useful or desirable is
insufficient. He said State law precludes allowing ADUs on this property because
the applicant is not seeking and thus will not have a Goal 3 exception.
Continuing, Katzaroff said the subject of groundwater recharge in this area is
addressed in the GIS report. He disputed that there is 24 square miles of
undeveloped RR10 land in Deschutes County and also disputed the statement
that wasteland can qualify as agricultural land.
King acknowledged the receipt of additional written testimony which has been
submitted today for the record.
The public hearing was closed at 10:34 pm.
Commissioner DeBone asked that DLCD make clear how this rezone is different
from others.
King reminded that the 120-day clock cannot be extended, and a final decision
from the County is due on October 24tn
The Board was in consensus to establish the following deadlines for the
submission of new materials into the record: additional comments due by 4 pm
on August 7t"; applicant rebuttal evidence and testimony due by 4 pm on August
14t", and the applicant's final argument due by 4 pm on August 21 St
BOCC MEETING JULY 24, 2024 PAGE 7 OF 15
8. Public Hearing: Plan Amendment and Zone Change at 19975 Destiny Court
Anthony Raguine, Principal Planner, described the request to change the
Comprehensive Plan designation of approximately 65 acres at 19975 Destiny
Court from Agricultural to Multiple Use Agricultural (MUA10) and a
corresponding Zone Change to rezone the subject property from Exclusive Farm
Use (EFU) to Rural Residential Exception Area. Raguine said 12 comments have
thus far been received in opposition to the proposed changes, reflecting
concerns about traffic impacts and the potential loss of open space.
Raguine shared a map showing the zoning of other properties in the area and
said the soil study that was conducted concluded that the property does not
meet the statutory definition of agricultural soil.
Commissioner Chang asked when the adjacent urban area reserve was
established. Raguine said this likely happened in 1990.
The public hearing was opened at 10:55 am.
Liz Dixon, representing the applicant, said the property, which extends from OB
Reilly Road to the Deschutes River, is comprised of 65.1 acres of unimproved,
rocky, unlevel land with extreme elevation changes. Saying that adjacent
properties are neither farmed nor in farm deferral, she spoke to property line
adjustments which were made to remove the floodplain area and transfer it to a
neighboring property owner.
Dixon next addressed questions raised regarding the proposal's compliance with
mandated goals, speaking to how agricultural land is defined in eastern Oregon.
She shared the results of the soil survey, which determined that 65.8% of soils on
the property are Class 7 or 8.
Dixon said other factors such as existing land use patterns must also be taken
into consideration when determining if a property is agricultural. She
summarized existing land uses in proximity to the property, saying none of these
are zoned EFU and farmed.
Referring to Statewide Planning Goal 14, Dixon spoke to factors which determine
if property is rural or urban —these include parcel size, intensity of use, and
urban facilities (e.g., domestic wells and septic systems).
Commissioner Chang asked to know how many acres would remain in open
space if the plan is to utilize 35% of the acreage for 14 homes. Commissioner
BOCC MEETING DULY 24, 2024 PAGE 8 OF 15
Adair answered that according to that proposal, 42 acres would remain as open
space.
Commissioner Chang noted that the Deschutes River Trail runs along the edge of
this property. Dixon said the property owners granted a permanent easement to
Oregon State Parks & Recreation to ensure continued public use of the trail.
Discussion ensued about the planned PUD development on the property, should
the rezone be approved.
Carol MacBeth, Central Oregon Land Watch, claimed proof that 25 head of cattle
have grazed on irrigated land in the southern pasture of this property and said
the northern pasture is twice as large. Noting that this property is rural land
outside of the Urban Growth Boundary, she said 29.4 acres of it are irrigated and
have been since 2009. She argued that a zone cannot be rural or urban, only a
use can, and said Deschutes County Code does not consider profitability in terms
of whether land zoned for agriculture is used for farming.
Dorinne Tye said developers should not dictate where rezones happen, as this
would result in urban sprawl. She said the fact that farmland exists throughout
this area shows that it's possible. She urged the Board to scrutinize the
application and the applicant's arguments, advocate for the community and its
future, and protect smaller farms.
In rebuttal for the applicant, Liz Dixon ask that the record be left open to allow
for additional comments, a rebuttal, and a final legal argument. She also asked
that the photos shared today be formally placed into the record along with
information on each photo indicating the date it was taken. She disputed the
claim of irrigation on the property, said it is not being irrigated, and requested
that proof be given if anyone claims otherwise. With regard to whether the
property is rural or urban, she advised applying the Shaffer test to this question
and said the Curry decision is also a relevant standard. She said because the
property is not profitably farmable, agriculture is not its highest and best use.
Commissioner Chang asked to be provided with information to resolve the
discrepancy as to whether or not any of the property is being irrigated.
The public hearing was closed at 12:05 pm.
The Board was in consensus to close the oral portion of the hearing and leave the
written record open until 4 pm on August 7, 2024. The applicant's rebuttal will be
due on August 14th and its final legal argument due on August 21 st
BOCC MEETING JULY 24, 2024 PAGE 9 OF 15
9. Design -Build Findings of Fact for the Courthouse Expansion Project PV Solar
Technology System at the Deschutes County Fair and Expo Center
Eric Nielsen, Capital Improvement Manager, explained that public entities which
spend $5 million or more on a capital project must allocate 1.5% of the total
contract price to green energy technology or an alternative. The County's
Courthouse Expansion project is subject to this requirement; however, due to
limitations of the Courthouse site and the building's roof area, Facilities proposes
that the solar technology system originally planned for the Courthouse be
developed at the Fair & Expo property instead.
Nielsen said the recommended Findings of Facts presented for the Board's
consideration would establish the basis for the use of the Design -Build method of
contracting as an alternative method for this project. He explained this method is
preferred in light of current market conditions (e.g., labor shortages and long -
lead items) as well as the specialized expertise needed for this type of project.
In response to Commissioner DeBone, Facilities Director Lee Randall said if the
Board authorizes this approach, staff will utilize an RFP process to select the
contractor who will deliver the best project for the County.
Responding to Commissioner Chang, Nielsen confirmed that the funding needed
for the solar technology system was budgeted in the courthouse expansion
project.
DEBONE: Move approval of Order No. 2024-028 adopting Findings of Fact to
exempt from competitive bidding and authorize the use of design
build services of contracting for the Courthouse Expansion Project PV
Solar Technology System at the Deschutes County Fair and Expo Center
CHANG: Second
VOTE: CHANG: Yes
DEBONE: Yes
ADAIR: Chair votes yes. Motion Carried
A recess was announced at 12:20 pm. The meeting resumed at 1:00 pm.
10. Senate Bill 80 -Draft Statewide Wildfire Hazard Mapping and Rules
Discussion
Will Groves, Planning Manager, reported that last week, the State released the
latest draft version of the Statewide Wildfire Hazard Map. No action is required
from the Board at this time.
BOCC MEETING DULY 24, 2024 PAGE 10 OF 15
Kevin Moriarty, County Forester, said the Oregon Department of Forestry (ODF)
anticipates that a final version of the map —along with all associated regulatory
standards —will be released on October 1, 2024. The draft map classifies all land
as low, moderate, or high hazard in terms of wildfire risk, and also designates
some areas as wildland-urban interface.
Saying that property owners can expect some areas to be newly subject to
hardening standards, Groves noted that the Deschutes River Woods area was
mapped as moderate hazard due to the treatments conducted on adjacent forest
service land.
Moriarty commented on significant concerns about the extent of fuels reduction
work which occurs in DRW.
Commissioner Chang said areas designated as high wildfire hazard will receive
more assistance from the State to address the risks.
In response to Commissioner Adair, Kyle Collins, Associate Planner, said the areas
shown on the map as irrigated were not based on self -reporting —rather, these
were identified from a state registry associated with irrigated lands. OSU
extrapolated that information and then incorporated it into the wildfire hazard
mapping work.
Commissioner DeBone acknowledged this map is a State effort, and potential
requirements to build to fire -hardening standards have been discussed for many
years. He added it's possible that defensible space requirements might be
applied to existing construction.
Commissioner Adair spoke to the widespread issue of property owners not being
able to get homeowners insurance or having to pay exorbitantly high premiums.
Moriarty said it's likely that properties in designated high hazard areas will be
subject to certain regulations such as defensible space standards as determined
by the State Fire Marshal. He shared information on upcoming public hearings
and said the open public comment period for the draft map will close on August
15tn
Responding to Commissioner Chang, Moriarty said the owners of properties
subject to new regulations (those designated to be high hazard and within the
wildland-urban interface area) will receive notification, after which they will have
60 days to appeal one or both designations to ODF.
BOCC MEETING JULY 24, 2024 PAGE 11 OF 15
Groves said it may take up to a year to work through all of the appeals.
Collins said it's not yet known when property owners will be required to comply
with the new higher standards, if determined to be subject to them. He added
that the new regulations will not take effect until a final map is adopted, which
will likely happen sometime in 2025.
Collins stressed that if a property owner were to take defensible space actions, it
would not change the risk classification of the property.
Commissioner DeBone summarized that best practices and standards may now
be required, whereas before these were simply communicated and
recommended.
In response to Commissioner Adair, Collins said today's meeting materials
include links to more information, including pertinent decision dates.
Saying that the hazard map may underestimate hazard levels, Commissioner
Chang said creating defensible space protects neighbors as well as one's own
property.
11. Deliberation #2: Deschutes County 2040 Comprehensive Plan Update -
Chapter 5, Natural Resources
Nicole Mardell, Senior Planner, presented Chapter 5 of the draft Comprehensive
Plan update for the Board's consideration and edits.
Saying that a large number of wildlife is killed in collisions with motor vehicles,
Commissioner Adair suggested adding language acknowledging this to the last
paragraph of the "Protected Wildlife Resources" section on page 5-2.
Commissioner DeBone clarified that The 2010 Greenprint document was not a
work product of Deschutes County.
Referring to the "Water Resources" section on page 5-3, Commissioner Chang
objected to language which inappropriately connects water supply and allocation.
He said it is not accurate to state that irrigation districts are involved with
groundwater although they do attempt to conserve surface water. He stressed
the need to delineate between groundwater and surface water.
Commissioner DeBone supported breaking the large paragraph on this page into
two.
BOCC MEETING JULY 24, 2024 PAGE 12 OF 15
Commissioner Adair referred to the statement on page 5-3 that "... groundwater
levels ... are declining ... by as much as 50 feet ..." and asked that context be
added for this statement to identify where and when this reduction was
measured.
Commissioner Chang suggested adding a generic statement to the effect that
conservation efforts by groundwater users can help slow the decline of
groundwater levels. He also said the "Water Resources" section on page 5-3
should explain that surface water resources, which are needed for irrigation and
streamflow, have been impacted by declines in precipitation and snowpack as
well as by appropriation of surface water. He added that this section should also
state who is dependent on surface water.
Noting the reference to a 2021 report from the Oregon Department of Water
Resources (OWRD) regarding declining groundwater levels, Commissioner Chang
supported mentioning all of the factors identified by OWRD in this report which
are contributing to groundwater level declines, including climate change.
Commissioner Adair said another factor is the proliferation and growth of juniper
trees.
Commissioner DeBone read a proposed statement on this subject, as follows:
"However, studies show that drought and groundwater levels are cyclical and
vary over the years; for example, conditions in the 1930s and 1970s were drier
than the current conditions," and expressed his support for the concept of
recognizing and acknowledging that some environmental changes are cyclical.
Discussion ensued of the language referring to "a shift (towards) overall drier
conditions" and revising this to refer simply to current trends and conditions.
Commissioner Chang suggested that the last sentence of the "Water Resources"
section which states that various parties help address water resource issues
should refer to the Soil and Water Conservation District and other stakeholders.
Commissioner Adair said the "Scenic Views and Open Space" section on page 5-5
should reference that 80% of Deschutes County is publicly owned.
Commissioner Chang suggested adding "and wildfire" to the end of the last
sentence in first paragraph of this same section regarding natural hazards. He
added that another benefit of open space is carbon storage.
In that same sentence, the Board agreed to remove the words "buffers from" in
front of the word "habitat."
BOCC MEETING JULY 24, 2024 PAGE 13 OF 15
Commissioner DeBone read from the introduction to the 1996 Upper Deschutes
Wild and Scenic River and State Scenic Waterway Corridor Comprehensive Plan,
which was signed by 25 different jurisdictions.
Mardell offered to edit the "Water Resources" section to include updated
information such as the current recharge rate of the Deschutes aquifer.
Commissioner Chang supported adding a detailed discussion of surface water
resources and issues.
Commissioner Adair asked that staff verify the statistic provided which states that
the City of Bend uses five times as much water in the summer as in the winter.
The Commissioners were in agreement that the most current information
available regarding water resources and usage should be reflected in the
Comprehensive Plan update.
Commissioner DeBone asked that the section regarding snowpack be revised to
clarify that the provided graphic refers to future expected declines in snowpack
at Mt. Bachelor Ski Resort.
At 2:30 pm, the Board was in consensus to table the remainder of discussion on
this chapter to its August 51" meeting.
OTHER ITEMS:
Erik Kropp, Deputy County Administrator, distributed an updated draft of a letter to
Governor Kotek regarding the potential use of the Gales property for shelter for
homeless persons. Kropp reviewed revisions made since the letter was first brought
to the Board on July 22nd.
Commissioner Chang suggested asking that the governor's office cover the cost of
preparing and submitting an application for rezoning this property. He further
suggested that the last sentence of the first paragraph state that the County seeks a
more immediate solution or to expedite the process of establishing an opportunity
for safe parking, managed camping, and/or tiny homes/shelter pods on the Gales
property.
Commissioner DeBone advised adding language to the conclusion thanking the
governor for her continued leadership to the people of the State of Oregon.
BOCC MEETING JULY 24, 2024 PAGE 14 OF 15
CHANG: Move approval of the letter to Governor Kotek regarding the use of
the Gales property for some kind of shelter for homeless persons,
with revisions as discussed
DEBONE: Second
VOTE: CHANG: Yes
DEBONE: Yes
ADAIR: Chair votes yes. Motion Carried
EXECUTIVE SESSION: None
ADJOURN:
Being no further items to come before the Board, the meeting was adjourned at 2:36 pm.
DATED this I day of 2024 for the Deschutes County Board of
Commissioners.
PATTI ADAIR, CHAIR
ATTEST:
him
RECORDING SECRETARY
BOCC MEETING DULY 24, 2024 PAGE 15 OF 15
wT E S C'J�71 E
BOARD OF
} COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS MEETING
8:00 AM, WEDNESDAY, DULY 24, 2024
Barnes Sawyer Rooms - Deschutes Services Building - 1300 NW Wall Street - Bend
(541) 388-6570 1 www.deschutes.org
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Time estimates: The times listed on agenda items are estimates one. Generally, items will be heard in
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CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT: Citizen Input may be provided as comment on any topic that is not on the
agenda.
Note: In addition to the option of providing in -person comments at the meeting, citizen input comments
may be emailed to citizeninput@deschutes.org or you may leave a brief voicemail at 541.385.1734..
CONSENT AGENDA
1. Approval of consent to easements associated with property conveyed to Administrative
School District #1 (Bend La Pine School District)
2. Acceptance of funding from the Oregon Health Authority to support a Secure Residential
Treatment Facility, IGA #PO-44300-00026008-3
3. Approval of the purchase of Commercial Property Insurance
4. Approval of Document No. 2024-496 renewing the contract with Iris Telehealth
5. Consideration of Board Signature on letter appointing Beth Bailey for service on the
Upper Deschutes Watershed Council
6. Approval of minutes of the BOCC June 5, 2024 meeting
ACTION ITEMS
7. 8:00 AM Public Hearing: Remand of 710 Properties/Eden Properties Plan Amendment
and Zone Change application
BREAK
8. 10:15 AM Public Hearing: Plan Amendment and Zone Change at 19975 Destiny Court
9. 11:45 AM Design -Build Findings of Fact for the Courthouse Expansion Project PV Solar
Technology System at the Deschutes County Fair and Expo Center
LUNCH RECESS
10. 1:00 PM Senate Bill 80 - Draft Statewide Wildfire Hazard Mapping and Rules
Discussion
July 24, 2024 BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 3
11. 1:45 PM Deliberation #2: Deschutes County 2040 Comprehensive Plan Update -
Chapter 5, Natural, Resources
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
EXECUTIVE SESSION
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations, ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations, ORS 192.660(2)(b), personnel issues, or other executive session categories.
Executive sessions are closed to the public, however, with few exceptions and under specific guidelines,
are open to the media.
12. Executive Session under ORS 192.660 (2) (e) Real Property Negotiations
July 24, 2024 BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 3
o ?{ BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
Subject: ' Date: Z z
Name I J -S wt cLk
Address i ` ►� T_ a
ib4nd Wig,
Phone #s
E-mail address
Z In Favor Neutral/Undecided ❑ Opposed
Submittingwritten documents as art of testimony? Yes No
p
If so, please give a copy to the Recording Secretary for the record.
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
MEETING DATE: July 24, 2024
SUBJECT: Approval of the purchase of Commercial Property Insurance
RECOMMENDED MOTION:
Authorize the Risk Manager to pay an invoice for $348,811 to Brown & Brown Insurance
Services for Commercial Property Insurance.
BACKGROUND AND POLICY IMPLICATIONS:
Deschutes County purchases Commercial Property Insurance to cover County buildings,
facilities, and large equipment (such as loaders, solid waste compactors, and graders). The
County has a deductible of $25,000 for losses covered by this policy.
The table below shows the comparison of last year's total insured value and premium to
this year's:
Total Insured Value
Premium
FY 23-24
$ 238,846,083
$ 307,845
FY 24-25
$ 262,655,758
$ 348,811
Increase
10%
13%
The County's carrier will remain the same, Affiliated FM.
BUDGET IMPACTS:
The cost for the insurance coverage is included in Risk Management's FY 24-25 budget.
ATTENDANCE:
Erik Kropp, Deputy County Administrator/Risk Manager
Mail payment to:
Brown & Brown Insurance Services, Inc.
Brown & Brown P.O. Box 743061
Los Angeles, CA 90074-3061
Overnight payment to:
Brown & Brown Insurance Services, Inc.
Lockbox 743061
2706 Media Center Drive
To Pay Online: bbnw.epaypolicy.com Los Angeles, CA 90065-1733
Deschutes County
1300 NW Wall St, Ste 201
Bend, OR 97701
Deschutes County
324357
07/16/2024
(503)274-6511
1 of 1
Customer: Deschutes County
Policy#1135825 07/01/2024-07/01/2025
Factory Mutual Insurance Company / Affiliated FM
Insurance Company
16871295 07/01/2024 Renew policy Commercial Property -Renew policy 348,811.00
$ 348,811.00
Please Remit Payment Upon Receipt
Date
07/16/2024
MEETING DATE: July 24, 2024
SUBJECT: Public Hearing: Remand of 710 Properties/Eden Properties Plan Amendment and
Zone Change application
BACKGROUND AND POLICY IMPLICATIONS:
The Board of Commissioners will hold a public hearing on July 24, 2024 to consider a remand
decision of the Oregon Land Use Board of Appeals regarding a Plan Amendment and Zone
Change application proposed by710 Properties, LLC, originally approved by the Board under
files 247-21-001043-PA, 1044-ZC. The full record is located on the project webpage:
https://www deschutes.org/cd/page/luba-remand-247-24-000395-247-21-001043-pa-and-
247-21-nn' O d-7r-arlan-rantral-nrnnartiac
BUDGET IMPACTS:
None
ATTENDANCE:
Haleigh King, Associate Planner
Will Groves, Planning Manager
MEMORANDUM
TO: Deschutes County Board of Commissioners (Board)
FROM: Haleigh King, Associate Planner
DATE: July 17, 2024
SUBJECT: Public Hearing: Remand of 710 Properties/Eden Properties Plan Amendment
and Zone Change application 247-21-001043-PA, 1044-ZC (247-24-000395-A)
On July 24, 2023, the Board of Commissioners ("Board") will hold a public hearing held to
consider a remanded decision of the Oregon Land Use Board of Appeals (LUBA) regarding a
Plan Amendment and Zone Change application proposed by Eden Central Properties
(Applicant). The record associated with this remanded review is located on the project
webpage'. This hearing is a continuation of an existing application (247-21-001043-PA/1044-
ZC), the full record is located on the project webpage2.
I. HEARING PROCEDURE
Deschutes County Code 22.32.040 notes that the scope of the proceeding for an application
on remand must be limited to review the issues that LUBA requires to be addressed,
although the Board may use its discretion to reopen the record where it seems necessary.
The applicant has requested the record to be reopened to address the issues identified by
LUBA, in accordance with Deschutes County Code Section 22.34.040. If the Board chooses to
reopen the record, the Board must limit it's review to the remanded issues
Per DCC 22.34.030(A), only those persons who were parties to the proceedings before the
County as part of the File Number(s) listed above are entitled to notice and participation in
this remand hearing.
II. BACKGROUND
On December 2, 2021, the applicant, 710 Properties, LLC/Eden Central Properties, LLC,
submitted an application for a Plan Amendment and Zone Change for property totaling
1 https://www.deschutes.org/cd/page/luba-remand-247-24-000395-247-21-001043-pa-and-247-21-001044-zc-
eden-central-properties
lhttps://www.deschutes.org/cd/page/247-21-001043-pa-and-247-21-001044-zc-eden-centra I -properties -
comprehensive -plan -amendment
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 1
approximately 710 acres. The applicant is requesting to redesignate and rezone the subject
property from Agriculture to Rural Residential Exception Area and Exclusive Farm Use (EFU)
to Rural Residential - 10 Acre Minimum (RR-10).
Staff includes a timeline of the proceedings below:
Action
Date
Hearings Officer Recommendation of
June 2, 2022
Approval to Board of County
Commissioners
Board of County Commissioners Hearing
August 17, 2022
Board Approval (2-1) of Ordinance No.
December 14, 2022
2022-013
County Decision Appealed to Oregon State
January 10, 2023
Land Use Board of Appeals (LUBA)
LUBA issues Final Opinion and Order
July 28, 2023
remanding the decision back to the County
Court of Appeals affirms LUBA Remand
January 24, 2024
Applicant initiates remand application with
June 26, 2024
Deschutes County
Deadline for final County decision on
October 24, 2024
remand
Ill. LUBA REMAND AND APPLICANT RESPONSE
LUBA, in its Final Opinion and Order, remanded the county decision to address the following
issues:
A. Findings related to the ability to use the subject property for farm use in
conjunction with other property.
The final opinion and order provides the following guidance:
(pg. 36-37) As we discuss in our resolution of a subsequent assignment of
error, the board of commissioners' decision fails to consider the ability to use
the subject property with a primary purpose of obtaining a profit in money in
conjunction with other property. ORS 215.203(2)(a) refers to the employment
of land for the primary purpose of obtaining a profit be engaging in a farm
activity. "Nearby or adjacent land, regardless of ownership, shall be examined
to the extent that a lot or parcel is either'suitable for farm use' or 'necessary
to permit farm practices to be undertaken on adjacent or nearby lands' outside
the lot or parcel." OAR 660-033-0030(3). Relating the profitability of farm
related activity solely to the activity on the subject property places undue
weight on profitability. The board of commissioners improperly weighed the
consideration of profitability of the subject property operating independently.
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 2
Staff notes that the applicant, in their initiation of remand materials has not yet provided
additional testimony to address the remanded issue area summarized above. Staff
anticipates additional information may be submitted prior to or at the public hearing for
Board consideration, or potentially during an open record period, should the Board choose
to leave the written record open. Any materials received by the applicant ahead of the public
hearing will be timely incorporated into the official record.
B. Findings related to the source of feed for farm uses involving animals.
The final opinion and order provides the following guidance:
(pg. 41) ...the board of commissioners' interpretation is not supported by the
text of OAR 660-033-0020(1)(a)(B) or ORS 215.203(2)(a), both of which are silent
as to the source of the feed that is necessary to sustain animals involved in
farm uses.
Whether livestock, poultry, and equines are sustained with forage grown on -
site or feed imported from off -site, their feeding, breeding, management, sale,
stabling, and training potentially qualify as farm uses. The board of
commissioners misconstrued OAR 660-033-0020(1)(a)(B) or ORS 215.203(2)(a)
in concluding that land is suitable for farm uses involving animals only if
sufficient feed can be grown on -site.
(pg. 42) It may be that, even if feed is imported from off -site, the subject
property is not suitable for the feeding, breeding, management, and sale of
livestock and poultry or the stabling or training of equines for the primary
purpose of obtaining a profit in money, given the factors listed in OAR 660-
033-0020(1)(a)(B). However, the board of commissioners did not reach that
conclusion. On remand, the county will have an opportunity to evaluate the
testimony that 710 properties cites through the proper lens and reach its own
conclusion.
Staff notes that the applicant, in their initiation of remand materials has not yet provided
additional testimony to address the remanded issue area summarized above. Staff
anticipates additional information may be submitted prior to or at the public hearing for
Board consideration, or potentially during an open record period, should the Board choose
to leave the written record open. Any materials received by the applicant ahead of the public
hearing will be timely incorporated into the official record.
C. Findings related to whether the subject property is suitable for farm use as a
site for the construction and maintenance of equipment and facilities used for
farm activities.
The final opinion and order provides the following guidance:
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 3
(pg. 44) Under ORS 215.203(2)(a), "farm use" includes the construction and
maintenance of equipment and facilities used for farm activities. Whether
those farm activities occur on the subject property or elsewhere, the
construction and maintenance of the equipment and facilities used therefore
is a farm use. The board of commissioners misconstrued OAR 660-033-
0020(1)(a)(B) and ORS 215.203(2)(a) in concluding that land is suitable for that
farm use only if the farm activities occur on the same land.
***
(pg. 45) ...in determining whether land is suitable for the construction and
maintenance of equipment and facilities, the county must consider the factors
listed in OAR 660-033-0020(1)(a)(B): soil fertility, suitability for grazing, climatic
conditions, existing and future availability of water for farm irrigation
purposes, existing land use patterns, technological and energy inputs
required, and accepted farming practices. That requirement remains, even
though the farm activities for which the equipment and facilities are used
occur elsewhere.
Staff notes that the applicant, in their initiation of remand materials has not yet provided
additional testimony to address the remanded issue area summarized above. Staff
anticipates additional information may be submitted prior to or at the public hearing for
Board consideration, or potentially during an open record period, should the Board choose
to leave the written record open. Any materials received by the applicant ahead of the public
hearing will be timely incorporated into the official record.
D. Findings related to whether retaining the property's agricultural designation is
necessary to permit farm practices on adjacent or nearby lands.
The final opinion and order provides the following guidance:
(pg. 47) ...the county misconstrued OAR 660-033-0020(1)(a)(B) and ORS
215.203(2)(a) in concluding that it was not required to consider whether the
subject property is suitable for farm use in conjunction with nearby or adjacent
land. We have previously explained that "[t]he suitability for farm use inquiry
must ***consider the potential for use in conjunction with adjacent or nearby
land."
***
(pg.48)... 710 Properties observes that several farmers and ranchers testified
that theywould not consider incorporating the subject property into their farm
operations. It may be that the subject property is not suitable for farm use
even in conjunction with nearby or adjacent land. However, the county did not
reach that conclusion. On remand, the county will have an opportunity to
evaluate the testimony that 710 properties cites through the property lens and
reach its own conclusion.
The Court of Appeals opinion included some additional analysis under this remanded
issue:
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 4
(pg. 14-15) Consequently, we agree with LUBA that consideration of whether
land is "agricultural land" under OAR 660-033-0020(1)(a)(C) must include
consideration of whether the land's resource designation and zoning is
"necessary to permit farm practices to be undertaken on adjacent or nearby
agricultural lands."
Having reached that conclusion, we note that we also agree with LUBA that
"necessary to permit farm practices on adjacent or nearby agricultural lands"
is a "high standard." ... That is, we do not understand land to be agricultural
land under OAR 660-033-0020(1)(a)(C) merely because its designation would
merely be "useful" or "desirable" for nearby farm practices. Rather, for land to
be agricultural land under OAR 660-033-0020(1)(a)(C), that land, considering its
resource designation and zoning, must truly be necessary to adjacent and
nearby farm practices.
Staff notes that the applicant, in their initiation of remand materials has not yet provided
additional testimony to address the remanded issue area summarized above. Staff
anticipates additional information may be submitted prior to or at the public hearing for
Board consideration, or potentially during an open record period, should the Board choose
to leave the written record open. Any materials received by the applicant ahead of the public
hearing will be timely incorporated into the official record.
F, Findings related to imparts nn surrounding land use in accordance with
comprehensive plan policies and zoning ordinances, specifically, water,
wastewater, and traffic impacts on surrounding agricultural lands and the
agricultural industry.
The final opinion and order provides the following guidance:
(pg. 73-74 )...we agree with Redside that the findings that the increase from 24
to 71 dwellings will have no greater water, wastewater, or traffic impacts on
surrounding agricultural lands and the agricultural industry, and the findings
relying on the distance between the subject property and surrounding
agricultural lands, are inadequate.
While the fact that the subject property is located on a plateau might mitigate
some impacts on surrounding agricultural lands and the agricultural industry,
it is not clear how that fact will mitigate any water, wastewater, or traffic
impacts. The county must consider the evidence of impacts on surrounding
agricultural lands vis-a-vis water, wastewater, and traffic.
Staff notes that the applicant, in their initiation of remand materials has not yet provided
additional testimony to address the remanded issue area summarized above. Staff
anticipates additional information may be submitted prior to or at the public hearing for
Board consideration, or potentially during an open record period, should the Board choose
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 5
to leave the written record open. Any materials received by the applicant ahead of the public
hearing will be timely incorporated into the official record.
IV. RESOLVED ISSUES AND PUBLIC COMMENT
The following are issues that have been resolved by LUBA orwere not included in the remand
and therefore cannot be considered by the Board in its decision:
• Use of and reliance on site -specific soils assessment
• Adequacy of the Applicant's site -specific soils assessment
• Use of profitability/capital costs in determining "suitable for farm use
• Application of the Reasonable Farmer test
• That the Board's analysis was not based on, nor required to be based on a
"commercial -scale" standard
• That the Board did not give inappropriate weight to "profitability," in analyzing the
factors listed in OAR 660-033-0020(1)(a)(B).
• Denying 1000 Friends' argument concerning preservation of agricultural land in large
blocks
• That the Board included an appropriate finding concerning traffic impacts that the
small amount of traffic associated with the proposed change will not prevent farm
practices associated with area farm uses of growing hay and grazing livestock from
occurring in the area
• Consistency with ORS 215.788 and DCCP Provisions (sustaining use of quasi-judicial
process, instead of requiring legislative process to redesignate and rezone the
property)
• Goal 14 issues (orderly and efficient transition from rural to urban land uses)
Staff has received a number of public comments since the Notice of Public Hearing was
mailed. All comments received as of the date of this memo are uploaded to the record. To
the extent comments are received after the date of this memo, staff will enter into the record
in a timely manner.
V. NEXT STEPS AND TIMELINE
Following the hearing the Board may choose to:
• Continue the hearing to a date and time certain;
• Close the oral portion of the hearing and leave the written record open to a date and
time certain,
• Close the hearing and commence deliberations; or
• Close the hearing and schedule deliberations for a date and time to be determined.
Staff notes that a final County decision on the remand is required within 120 days of the date
the applicant initiates the remand. The applicant initiated the remand on June 26, 2024;
therefore, a final County decision is due no later than October 24, 2024.
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 6
Attachment(s):
Attachment A: Final Opinion and Order, LUBA No. 2023-006 and 2023-009
Attachment B: Oregon Court of Appeals Opinion
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 7
1
BEFORE THE LAND USE BOARD OF APPEALS
2
OF THE STATE OF OREGON
3
4
CENTRAL OREGON LANDWATCH,
5
Petitioner,
6
7
and
8
9
1000 FRIENDS OF OREGON)
10
WILLIAM BUCHANAN, ELIZABETH BUCHANAN,
11
KEYSTONE CATTLE & PERFORMANCE HORSES, LLC,
12
REDSIDE RESTORATION PROJECT ONE, LLC,
13
and PAUL J. LIPSCOMB,
14
Intervenors -Petitioners,
15
16
vs.
17
18
DESC14UTES COUNTY,
19
Respondent,
20
2'1
A
anu
22
23
710 PROPERTIES, LLC,
24
CHARLES THOMAS, and ROBERT TURNER,
25
Intervenors -Respondents.
26
27
LUBA No. 2023-006
28
29
DEPARTMENT OF LAND CONSERVATION
30
AND DEVELOPMENT,
31
Petitioner,
32
33
and
34
35
1000 FRIENDS OF OREGON,
36
REDSIDE RESTORATION PROJECT ONE, LLC,
37
and PAUL J. LIPSCOMB,
38
Intervenors -Petitioners,
Page 1
1
2 vs.
3
4 DESC14UTES COUNTY,
5 Respondent,
6
7 and
8
9 710 PROPERTIES, LLC,
10 CHARLES THOMAS, and ROBERT TURNER,
11 Inter°venors-Respondents.
12
13 LUBA No. 2023-009
14
15 FINAL OPINION
16 AND ORDER
17
18 Appeal from Deschutes County.
19
20 Carol Macbeth filed a petition for review and reply brief and argued on
21 behalf of petitioner Central Oinegoii Land .;patch.
22
23 Erin Donald filed a petition for review and reply brief and argued on behalf
24 of petitioner Department of Land Conservation and Development. Also on the
25 brief was Ellen F. Rosenblum, Attorney General.
26
27 Andrew Mulkey filed an intervenor -petitioner's brief and argued on behalf
28 on intervenor -petitioner 1000 Friends of Oregon.
29
30 Jeffrey L. Kleinman filed an intervenors -petitioners' brief and reply brief
31 on behalf of intervenors -petitioners William Buchanan, Elizabeth Buchanan, and
32 Keystone Cattle & Performance Horses, LLC.
33
34 Keenan Ordon-Bakalian filed an intervenor -petitioner's brief and reply
35 brief and argued on behalf of intervenor -petitioner Redside Restoration Project
36 One, LLC. Also on the brief were James D. Howsley and Jordan Ramis PC.
37
38 David Doyle filed the respondent's brief on behalf of respondent.
Page 2
1
2
3
4
5
6
7
8
9
10
11
12
13
J. Kenneth Katzaroff filed the intervenor -respondent's briefs. Also on the
briefs were D. Adam Smith, Bailey M. Oswald, and Schwabe, Williamson &
Wyatt, P.C. J. Kenneth Katzaroff and D. Adam Smith argued on behalf of
intervenors -respondents.
RUDD, Board Member; RYAN, Board Chair; ZAMUDIO, Board
Member, participated in the decision.
REMANDED
07/28/2023
You are entitled to judicial review of this Order. Judicial review is
governed by the provisions of ORS 197.850.
Page 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
Opinion by Rudd.
NATURE OF THE DECISION
Petitioners appeal a board of county commissioners decision approving a.
post -acknowledgment plan amendment (PAPA) that changes the comprehensive
plan designation of a 710-acre property from Agriculture (AG) to Rural
Residential Exception Area (RREA) and the zoning from Exclusive Farm Use -
Terrebonne Subzone (EFUTE) to Rural Residential - 10 Acre Minimum (RR-
10).
FACTS
The 710-acre subject property is located west of the unincorporated
community of Terrebonne and the city of Redmond. It is over four miles from
the City of Redmond's urban growth boundary (UGB), and it is north of Highway
126. Record 34, 42, 119. Nine lots of record, identified by tax lot, form the subject
property.
"The subject property is undeveloped except for one tax lot (10325
NW Coyner Avenue), which is developed with a nonfarm dwelling
(County Land Use File #CU-05-103). Two other lots of record have
valid nonfarm dwelling approvals. Access to the ' property is
provided at the western terminus of NW Coyner Avenue, a County -
maintained rural local roadway, and the northern terminus of NW
103rd Street, a County -maintained rural local roadway." Record 41.
22 The subject property is shown below.
Page 4
1
2 Record 6.
3 "The subject property is predominately surrounded by EFU-zoned lands
4 with large-scale farm/agricultural uses apparent near the northwest boundary of
5 the subject property." Record 44. "There is property zoned [RR- 10] to the
Page 5
I northeast of the subject property containing large -lot rural residential uses within
2 the Lower Bridge Estates Subdivision." .Id.
3 Intervenor -respondent 710 Properties, LLC (710 Properties), applied for a
4 PAPA to change the plan designation of the subject property from AG to RREA
5 and the zoning from EFUTE to RR-10. On April 19, 2022, a county hearings
6 officer held the initial public hearing concerning 710 Properties' application. On
7 June 2, 2022, the hearings officer issued their decision recommending that the
8 board of commissioners approve 710 Properties' application. On August 17,
9 2022, the board of commissioners held a de novo public hearing on the
10 application. On December 14, 2022, the board of commissioners approved the
11 application. These appeals followed.
12 NnNrnMP1.1ANT INTERVENOR-PETITTnNF_,R'S BRIEF
13 In its brief, intervenor -respondent Robert Turner (Turner) argues that
14 intervenor -petitioner 1000 Friends of Oregon's (1000 Friends') brief does not
15 comply with our rules. Specifically, Turner argues that 1000 Friends' brief does
16 not comply with OAR 661-010-0030(4)(b)(B) and OAR 661-010-0050(6)(a).
17 OAR 661-010-0050(6)(a) provides, "If intervention is sought as a petitioner, the
18 brief shall be filed within the time limit for filing the petition for review, and shall
19 satisfy the requirements for a petition for review in OAR 661-010-0030." OAR
20 661-010-0030(4) provides:
21 "The petition for review shall:
22 cc*XX*x
Page 6
I "(b) Present a clear and concise statement of the case, in the
2 following order, with separate section headings:
3 «*****
4 "(B) A brief summary of the arguments appearing under the
5 assignments of error in the body of the petition[.]"
6 Turner argues that 1000 Friends' brief does not include the summary of
7 arguments required by OAR 661-010-0030(4)(b)(B). Turner observes that 1000
8 Friends' brief is 10,911 words long, 89 words shy of the 11,000-word limit for
9 intervenor -petitioner's briefs set forth in OAR 661-010-003 0(2)(b) and OAR
10 661-010-0050(6)(a). Turner argues that, had 1000 Friends' brief included the
11 requisite summary of arguments, it would have exceeded the word limit. Turner
12 argues that that violation is not a technical violation because the county and
13 intervenors -respondents were required to review and respond to what is
14 effectively an overlength intervenor -petitioner's brief and because Turner was
15 required to divert time and resources to discovering and addressing the violation
16 in their own brief. To remedy the violation, Turner requests that we disregard
17 1000 Friends' brief in its entirety.
18 Treating Turner's request as a motion to strike, 1000 Friends filed a
19 response arguing that, while the statement of the case at the beginning of its brief
20 does not include a summary of arguments, each assignment of error in the body
21 of its brief contains a summary of the arguments therein. 1000 Friends observes
22 that Turner does not argue that any of the arguments in 1000 Friends' brief are
23 not readily discernible, and 1000 Friends argues that the violation is therefore a
Page 7
I technical violation not affecting the substantial rights of the parties. OAR 661-
2 010-0005. 1000 Friends argues that we should not disregard its brief in its entirety
3 because, notwithstanding the violation, its brief "substantially conforms" to the
4 requirements of OAR 660-010-0030. OAR 660-010-0030(3) ("The Board may
5 refuse to consider a brief that does not substantially conform to the requirements
6 of this rule."). We agree. Given the clarity of 1000 Friends' arguments in the
7 body of its brief, the lack of a summary of arguments at the beginning of its brief
8 did not affect Turner's substantial rights.'
9 Turner's motion to strike is denied.
10 OVERLENGTH RESPONDENT'S AND INTERVENOR-
11
12
13
14
RESPONDENT'S BRIEFS
-Pnok of ttie ;-QnnnrlPnf'_q nnil intervenor-resnon dent's briefs incorporates
arguments from the other briefs. In its reply brief, intervenor -petitioner Redside
Restoration Project One, LLC (Redside), moves to strike the incorporations as
' OAR 661-010-0065(3) provides that "[a]ll motions must be filed as a
separate document and shall not be included with any other filing." The purposes
of that rule are at least twofold. First, requiring that motions to strike, motions to
take official notice, motions to take evidence not in the record, and the like be
filed as separate documents rather than included in briefs better ensures that
LUBA and the parties will become aware of and fully address such motions.
Second, requiring that such motions be filed as separate documents rather than
included in briefs better ensures that the parties will focus their limited briefing
space on the merits of an appeal rather than procedural matters. Turner's
inclusion of its motion to strike in its brief is a violation of OAR 661-010-
0065(3).
Page 8
1 improperly allowing the county and intervenors -respondents to exceed the
2 11,000-word limit for respondent's and intervenor -respondent's briefs.
3 "While incorporation of arguments in another brief in the appeal is a
4 common practice, such incorporation is permissible only if it is otherwise
5 consistent with LUBA's rules." STOP Tigard Oswego Project, LLC v. City of
6 West Linn., 68 Or LUBA 539, 542 (2013). OAR 661-010-0030(2)(b), OAR 661-
7 010-0035(2), and OAR 661-010-0050(6)(b) limit respondent's and intervenor-
8 respondent's briefs to 11,000 words unless LUBA grants permission for an
9 overlength brief No party has requested leave to file an overlength brief. By
10 incorporating arguments from the other briefs, the county and intervenors -
II respondents have effectively submitted overlength briefs without obtaining
r , _ r u r r,Z�� n,.�,t„ 54 nr T .T TR A 417. 420 (2007)
1L LUtSA S perrlilssloll. JJGe 11G%"%"iiig v. uutw vv4:.r y, ...
13 (allowing a respondent's brief to incorporate arguments in a proposed but
14 disallowed aniicus brief where the incorporation did not cause the respondent's
15 brief to exceed the applicable page limit).
16 Nonetheless, granting Redside's motion to strike would have no practical
17 effect because, regardless of the incorporation by reference, we will consider the
18 arguments in each party's separate brie£ Thus, any violation of our rules is a
19 "technical violation" within the meaning of OAR 661-010-0005.2
2 As previously noted, OAR 661-010-0065(3) provides that "[a]ll motions
must be filed as a separate document and shall not be included with any other
Page 9
I Redside's motion to strike is denied.
2 INTRODUCTION
3 We have organized this opinion into sections addressing the assignments
4 of error concerning Statewide Planning Goal 3 (Agricultural Lands), the
5 assignments of error concerning miscellaneous statutory and local provisions,
6 and the assignments of error concerning Statewide Planning Goal 14
7 (Urbanization).
8 GOAL 3 ASSIGNMENTS OF ERROR
9 The county's AG plan designation and EFUTE zone implement Goal 3.
10 Goal 3 is "[t]o preserve and maintain agricultural lands." OAR. 660-033-
11 0020(1)(a) provides that "agricultural land," as defined in Goal 3, includes:
"(A) T .nndq by the U.S. Natural Resources Conservation
13 Service (MRCS) as predominately Class I -IV soils in Western
14 Oregon and I -VI in Eastern Oregon;
15 "(13) Land in other soil classes that is suitable for farm use as
16 defined in ORS 215.203 (a), taking into consideration soil
17 fertility; suitability for grazing; climatic conditions; existing
18 and future availability of water for farm irrigation purposes;
filing." Redside's inclusion of its motion to strike in its reply brief is a violation
of OAR 661-010-0065(3).
3 In spite of our encouragement to the parties to coordinate their briefing to
avoid repetitive and overlapping arguments and assignments of error, four briefs
with overlapping assignments of error were filed in these consolidated appeals.
We have organized the opinion in this manner because of the overlapping
assignments of error.
Intervenor -petitioner Paul J. Lipscomb did not file a brief
Page 10
I existing land use patterns; technological and energy inputs
2 required; and accepted land use patterns;
3 "(C) Land that is necessary to permit farm practices to be
4 undertaken on adjacent or nearby agricultural lands."
5 Generally, counties must apply Exclusive Farm Use (EFU) zones to "agricultural
6 land." OAR 660-033-0090(1).
7 The board of commissioners' findings include the following description of
8 the subject property:
9 "A majority of the property sits on a plateau running from the
10 southwest to the northeast of the subject property boundary.
11 Topography is varied with portions of lava rimrock present along
12 the west and northwest edges with steep to very steep slopes below.
13 Vegetation is typical of the high desert and includes juniper trees,
14 sage brush, rabbit brush, and bunch grasses. [710 Properties]
15 emphasizes the steep topographical decline on the property, the fact
16 that there is `1_a.va. rock- all over the property,' and `sparse ground
17 cover and juniper.'
18 "The subject property does not have water rights and is not currently
19 being farmed or irrigated in conjunction with farm use. There is no
20 known history of the property having had irrigation rights. There is
21 no known history of agriculture or farm use, as defined in ORS
22 215.203 on the subject property. According to the Deschutes County
23 Assessor's office, only one tax lot within the project area, Assessor's
24 Map 14-12-28, Tax Lot 300, is currently receiving farm tax deferral,
25 but does not appear to be engaged in farm use. The record does not
26 include any evidence the subject property is engaged, or has ever
27 been engaged, in farm use." Record 41-42 (footnote omitted).
28 In approving the challenged PAPA, the board of commissioners concluded
29 that the subject property is not "agricultural land" under OAR 660-033-
3 0 0020(l)(a). In various assignments of error and subassignments of error,
Page 11
I petitioners and intervenors -petitioners argue that the county erred in reaching that
2 conclusion.
3 A. OAR 660-033-0020(I)(a)(A)
4 For purposes of Goal 3, "agricultural land" includes "[1]ands classified by
5 the [NRCS] as predominately Class I -IV soils in Western Oregon and INI in
6 Eastern Oregon." OAR 660-033-0020(1)(a)(A). Eastern Oregon, as defined by
7 OAR 660-033-0020(5), includes the county. 710 Properties engaged a qualified
8 soil scientist to prepare a detailed soils assessment for the subject property and
9 submitted that site -specific soils assessment to the county. The county found:
10 "The [NRCS] map shown on the County's GIS mapping program
11 identifies six soil complex units on the property: 63C, Holmzie-
12 Searles complex, 106E, Redslide-Lickskillet complex, 101D,
13 Redeliff-Lickskillet-Rock outcrop complex, 106D, Redslide-
14 Lickskillet complex, 71A, Lafollette sandy loam, and 31B,
15 Deschutes sandy loam. Per [Deschutes County Code (DCC)] 8.04,
16 Soil complex 3 1 A and 7 1 A are considered high -value soils when
17 irrigated.
18 "As discussed in detail below in the Soils section, there is no
19 irrigation on the subject property, except for water applied to
20 landscaping associated with the nonfarm dwelling on Tax Lot 301.
21 4 soil study conducted on the property determined the subject
22 property contains approximately 71 percent. Land Capability Class
23 7 and 8 nonirr°igated soils, including stony shallow soils over
24 bedrock, more characteristic of the Lickskillet series, along with
25 significant rock outcrops. Where surface stoniness was not apparent,
26 the soils were typically moderately deep with sandy loam textures
27 throughout or with some loam textures in the subsurface, more
28 consistent with the Statz series." Record 42 (emphasis added).
Page 12
I Because the site --specific soils assessment determined that 71 percent of the
2 subject property is Class 7 and 8 soils, while only 29 percent is Class 6 soils, the
3 board of commissioners concluded that the subject property is not predominantly
4 Class 1 to 6 soils and, therefore, not "agricultural land" under OAR 660-033-
5 0020(1)(a)(A).4
6 1. Reliance on Site -Specific Soils Assessment
7 The NRCS mapping for the subject property identifies the property as
8 containing 76 percent 63C, Holmzie-Searles complex, soil. Record 4695. We
9 understand 63C soil to be Class 6 soil in the NRCS classification system when
10 nonirrigated. Record 4697. Accordingly, the NRCS mapping for the subject
11 property identifies the property as containing at least 76 percent Class 6 soils.
JLn 7.._ '4i. _r 4 4 ri o1•t•!�r Y1PililllYlPS' 1 ,,nfvn1 Or "nii1. T.nnilAuntr1i
jn iLJ first asJlgllAA1%,11L iJl IJAAVI, t.l tJ l,i Li vtivi �. vii�i ui b
13 (COLW) argues that the county misconstrued OAR 660-033-0020(l)(a)(A) in
14 concluding that it could rely on 710 Properties' site -specific soils assessment to
15 conclude that the subject property is not predominantly Class 1 to 6 soils,
16 notwithstanding that the NRCS mapping identifies the subject property as
17 predominantly Class 1 to 6 soils. COLW argues that lands that the NRCS
18 mapping identifies as predominantly Class 1 to 6 soils are per se "agricultural
19 land" for purposes of OAR 660-033-0020(1)(a)(A). In support of that argument,
4 The rule uses roman numerals to designate soil classes. Because the decision
does not, we refer to Class 1 to 6 rather than Class I to VI.
Page 13
I COLW quotes the following passage from 1000 Friends of Oregon v. LCDC
2 (Linn Co.):
3 "[Petitioner] premises his second point on the reasonably clear
4 language of Goal 3 and the unequivocal language of OAR 660-05-
5 005(1) to the effect that land comprised of the specified soil classes
6 is per se agricultural and that suitability considerations are relevant
7 only to whether land which is not predominantly comprised of such
8 soils is also `agricultural land.'
9 "* * * It may be that factors such as wetness and slope can be
10 relevant to whether an exception to Goal 3 may be taken for land in
11 western Oregon that consists predominantly of Class I -IV soils.
12 However, the goal and the [Land Conservation and Development
13 Commission (LCDC)] rule leave no room to conclude that land
14 which is so comprised is not, per se, `agricultural land,' whether or
15 not it can be used for agriculture." 85 Or App 18, 22-23, 735 P2d
16 645, adh'd to as modified on recons, 86 Or App 26, 738 P2d 215,
17 rev den, 304 Or 93 (1987).
18 COLW argues that, "[a]s the inventor of the land capability classification system
19 Classes [1-6], the NRCS must be presumed to be in the best position to recognize
20 Class [6] soil when it sees it, and to correctly categorize the soils it identifies and
21 names into the proper land capability classes it invented." COLW's Petition for
22 Review 14. COLW observes that the site -specific soils assessment is an "Order
23 1 soil survey," which the NRCS's Technical Soil Services Handbook describes
24 as a "supplement" that cannot "replace or change" the NRCS mapping. Record
25 3 817-18. COLW argues that the county cannot substitute its interpretation of the
26 significance of Order 1 soil surveys for that of the NRCS, which invented them.
Page 14
I Intervenor -respondent Charles Thomas (Thomas) argues that we must
2 consider the effect of ORS 215.211 and OAR 660-033-0030(5) on the definition
3 of "agricultural land." Thomas's Intervenor -Respondent's Brief 18. ORS
4 215.211 provides:
5 "(1) If a person concludes that more detailed soils information
6 than that contained in the Web Soil Survey operated by the
7 [NRCS] would assist a county to make a better determination
8 of whether land qualifies as agricultural land, the person must
9 request that the Department of Land Conservation and
10 Development arrange for an assessment of the capability of
11 the land by a professional soil classifier who is:
12 "(a) Certified by and in good standing with the Soil Science
13 Society of America; and
14 "(b) Chosen by the person.
y
15
16 "(5) This section authorizes a person to obtain additional
17 information for use in the determination of whether land
18 qualifies as agricultural land, but this section does not
19 otherwise affect the process by which a county determines
20 whether land qualifies as agricultural land."
21 OAR 660-033-0030(5) implements ORS 215.211 and provides:
22 "(a) More detailed data on soil capability than is contained in the
23 [NRCS] soil maps and soil surveys may be used to define
24 agricultural land. However, the more detailed soils data shall
25 be related to the NRCS land capability classification system.
26 "(b) If a person concludes that more detailed soils information
27 than that contained in the Web Soil Survey operated by the
28 NRCS, would assist a county to make a better determination
29 of whether land qualifies as agricultural land, the person must
Page 15
I request that the department arrange for an assessment of the
2 capability of the land by a professional soil classifier who is
3 chosen by the person, using the process described in OAR
4 660-033-0045.
5 "(c) This section and OAR 660-033-0045 apply to:
6 "(A) A change to the designation of a lot or parcel planned
7 and zoned for exclusive farm use, forest use or mixed
8 farm forest use to a non -resource plan designation and
9 zone on the basis that such land is not agricultural
10 land, and
11 "(13) Excepting land use decisions under section (7) of this
12 rule, any other proposed land use decision in which
13 more detailed data is used to demonstrate that a lot or
14 parcel planned and zoned for exclusive farin use does
15 not meet the definition of agricultural land under OAR
16 660-033-0020(1)(a)(A).
17 "(d) This section and OAR 660-033-0045 implement ORS
n 111 c h i t -Pp +. -- n-+-k • 1 OW 1 A ffAr fl-iic tlAfp nnly
10 /-IJ.11-11, eIIV- iVG gill V"CLUM-L 1, LrV 11. I1-. -.- �1-1-5 -111.7
19 those soils assessments certified by the department under
20 section (9) of this rule may be considered by local
21 governments in land use proceedings described in subsection
22 (c) of this section. However, a local government may consider
23 soils assessments that have been completed and submitted
24 prior to October 1, 2011.
25 "(e) This section and OAR 660-033-0045 authorize a person to
26 obtain additional information for use in the determination of
27 whether a lot or parcel qualifies as agricultural land, but do
28 not otherwise affect the process by which a county determines
29 whether land qualifies as agricultural land as defined by Goal
30 3 and OAR 660-033-0020." (Emphases added.)
Page 16
I ORS 215.211 and OAR 660-033-0030(5) allow a site -specific soils assessment
2 where a person believes that such information would, compared to the NRCS
3 mapping, assist a county in determining whether land is agricultural land.
4 The county argues that Linn Co, is inapposite because, whereas that
5 decision was issued in 1987, the legislature did not enact ORS 215.211 until 2010
6 and LCDC did not adopt OAR 660-033-0030(5) until 2012. We agree. Linn Co.
7 did not concern site -specific soils assessments at all.
8 In its reply brief, COLW argues that OAR 660-033-0030(5) and OAR 660-
9 033-0020(1)(a)(A) govern different actors. According to COLW, while ORS
10 215.211 and OAR 660-033-0030(5) allow individual persons to provide more
1 I detailed data on soil capacity than is contained in the NRCS mapping, OAR 660-
, ,. - nnnnit \!._\/ A \ .. - - - - --' - ---.__ 2__ J-_ .7...,.:........_4-_ i..... A +1...,+ Al ATU!'�C� .��ns.r.� _
12 u.5.3-uu�v�r J�a)tfaJ r equines c;occrl..Ws Lu WG Ir, Mu lallu Mai ills ,
13 identifies as predominantly Class I to 6 soils as agricultural land. We understand
14 COLW to argue that land that the NRCS mapping identifies as predominantly
15 Class 1 to 6 soils must be considered agricultural land regardless of what a site-
16 specific soils assessment reveals.
17 COLW's argument is inconsistent with the text of ORS 215.211 and OAR
18 660-033-0030(5), which provide that the more detailed soils information is
19 intended to "assist the county to make a better determination of whether land
20 qualifies as agricultural land" than the NRCS mapping would allow, and which
21 provide that the more detailed soils information is intended "for use in the
22 determination of whether land qualifies as agricultural land." If a county was
Page 17
I bound by the NRCS mapping, then more detailed soils information could not
2 "assist" the county and the county could not "use" that information to make a
3 "better" determination than the NRCS mapping would allow.
4 We conclude that the county did not misconstrue OAR 660-033-
5 0020(1)(a)(A) in concluding that it could rely on the site -specific soils assessment
6 to determine that the subject property is not predominantly Class 1 to 6 soils,
7 notwithstanding that the NRCS mapping identifies the subject property as
8 predominantly Class I to 6 soils.
9 COLW's first assigiunent of error is denied.
10 2. Adequacy of Site -Specific Soils Assessment
I1 In its third assignment of error, petitioner Department of Land
t ! `nncati vafint� and Development (TiT,M) argues. that the board of cominlssloners
13 misconstrued OAR 660-033-0020(1)(a)(A) in concluding that the subject
14 property is not predominantly Class 1 to 6 soils. Rather than determining whether
15 all nine lots, considered together, are predominantly Class 1 to 6 soils, DLCD
16 argues that the board of commissioners should have determined whether each
17 individual lot is predominantly Class I to 6 soils. DLCD argues, "With 206 acres
18 of Class [6] soils on site, and nine lots, it is quite possible that one or more of the
19 lots has predominantly Class [6] soils and qualifies as `agricultural land' under
20 OAR 660-033-0020(1)(a)(A)." DLCD's Petition for Review 28-29. Because
21 neither the site -specific soils assessment nor the findings quantify the soil types
22 on each individual lot, DLCD argues that remand is required for the county to
Page 18
I make those determinations and reassess whether any individual lots are
2 predominantly Class 1 to 6 soils.
3 Thomas responds that this issue is waived because no party raised it below.
4 Issues before LUBA on review "shall be limited to those raised by any participant
5 before the local hearings body as provided by ORS 197.195 or 197.797,
6 whichever is applicable." ORS 197.835(3). To be preserved for LUBA review,
7 an issue must "be raised and accompanied by statements or evidence sufficient
8 to afford the governing body, planning commission, hearings body or hearings
9 officer, and the parties an adequate opportunity to respond to each issue." ORS
10 197.797(1).
11 In its petition for review, and again in its reply brief, DLCD identifies its
having t_
2 third assignment of error as aving been preserved in an Apt 11 17, GVGG, 1GCLG1
13 that 1000 Friends submitted into the record. Record 4212-13.
14 DLCD observes that ORS 197.797(1) requires only that parties raise
15 "issues" below, not that they individual "arguments." SOPIP, Inc. v. Coos
16 County, 57 Or LUBA 44, 64 (2008). DLCD argues that 1000 Friends' April 19,
17 2022, letter raised the issue of compliance with OAR 660-033-0020(1)(a)(A) and
18 that that was sufficient to preserve the issue raised in its third assignment of error.
19 When attempting to differentiate between "issues" and "arguments," there
20 is no "easy or universally applicable formula." Reagan v. City of Oregon City, 39
21 Or LUBA 672, 690 (2001). While a petitioner is not required to establish that a
22 precise argument made on appeal was made below, that does not mean that "any
Page 19
I argument can be advanced at LUBA so long as it has some bearing on an
2 applicable approval criterion and general references to compliance with the
3 criterion itself were made below." Id. (emphasis omitted). A particular issue must
4 be identified in a manner detailed enough to give the decision -maker and the
5 parties fair notice and an adequate opportunity to respond. Boldt v. Clackamas
6 County, 107 Or App 619, 623, 813 P2d 1078 (1991); see also Va»speybr°oeek v.
7 Tillamook County, 221 Or App 677, 691 n 5, 191 P3d 712 (2008) ("[I]issues
8 [must] be preserved at the local government level for board review X * * in
9 sufficient detail to allow a thorough examination by the decision -maker, so as to
10 obviate the need for fiirther review or at least to make that review more efficient
11 and timely.").
i h AW 11-1— yncric�txrara +ha o4o�l nnapc r'efaf e.nr.if�cr r tnr e.qn 1C P.n P, fYolll 1000
14 yv e 11Q V %l 1 V V 1\i YY V 411v v1Mv�s Vu1,vv — r ^^- --
13 Friends, and the issue raised in DLCD's third assignment of error was not
14 preserved. The site -specific soils assessment includes a table quantifying the
15 different soil types on the subject property and four maps depicting where each
16 soil type can be found. Record 4674, 4679-82. Although 1000 Friends' April 19,
17 2022, letter argues that the four maps included in the soils assessment are not
18 sufficiently legible to allow for verification of the quantities listed in the table,
19 1000 Friends did not argue that the soils assessment was inadequate for failing to
Page 20
I quantify the soil types on each individual lot.' We conclude that 1000 Friends'
2 April 19, 2022, letter did not identify the issue raised in DLCD's third assignment
3 of error in a manner detailed enough to give the county and the parties fair notice
4 and an adequate opportunity to respond. Accordingly, the issue is waived.
5 DLCD's third assignment of error is denied.
6 B. OAR 660-033-0020(1)(a)(B)
7 In addition to lands in Eastern Oregon classified by the MRCS or a site-
8 specific soils assessment as predominantly Class I to 6 soils, for purposes of Goal
9 3, "agricultural land" includes "[l]and in other soil classes that is suitable for farm
10 use as defined in ORS 215.203(2)(a), taking into consideration soil fertility;
I suitability for grazing; climatic conditions; existing and future availability of
r r. 44as no;
12 4a n1-snn�n Y!'Al at'1(�
water for Farm irrigation purposes; exls L111g iaild use YaLwiii.3wviuivi�gi
' OAR 660-033-0045(6)(a) provides that DLCD must review site -specific
soils assessments by "[p]erforming completeness checks with reporting
requirements for all submitted assessments." DLCD's September 2021 "Soil
Assessment Completeness Review" for the subject property states:
"In accordance with OAR 660-033-0045(6)(a), [DLCD] finds that
this soils assessment is complete and consistent with reporting
requirements. The county may make its own determination as to the
accuracy and acceptability of the soils assessment. DLCD has
reviewed the soils assessment for completeness only and has not
assessed whether the parcel qualifies as agricultural land as defined
in OAR 660-033-0020(1) and 660-033-0030." Record 2222.
For the location of the project site, the completeness review lists nine lots:
"T14S, R12E, Section 21, 28 and 281), Tax Lots 300, 400, 500, 600, 700, 100,
200, 300, 101, Deschutes County, Oregon." Id.
Page 21
I energy inputs required; and accepted farming practices." OAR 660-033-
2 0020(1)(a)(B).
3 "` [F]arm use' means the current employment of land for the primary
4 purpose of obtaining a profit in money by raising, harvesting and
5 selling crops or the feeding, breeding, management and sale of, or
6 the produce of, livestock, poultry, fur -bearing animals or honeybees
7 or for dairying and the sale of dairy products or any other
8 agricultural or horticultural use or animal husbandry or any
9 combination thereof. `Farm use' includes the preparation, storage
10 and disposal by marketing or otherwise of the products or by-
11 products raised on such land for human or animal use. `Farm use'
12 also includes the current employment of land for the primary
13 purpose of obtaining a profit in money by stabling or training
14 equines including but not limited to providing riding lessons,
15 training clinics and schooling shows. `Farm use' also includes the
16 propagation, cultivation, maintenance and harvesting of aquatic,
17 bird and animal species that are under the jurisdiction of the State
18 Fish and Wildlife Commission, to the extent allowed by the rules
19 adopted by the commission. `Farm use' includes the on -site
20 construction and maintenance of equipment and facilities used for
21 the activities described in this subsection." ORS 215.203 (2)(a)
22 (emphasis added).
23 The board of commissioners concluded that the subject property is not
24 suitable for farm use because "no person would undertake agricultural activities
25 on the subject property for the primary purpose of obtaining a profit in money."
26 Record 22. The board of commissioners concluded that the shallow, poor quality
27 soils on the subject property will not hold sufficient water to support the growth
28 of crops without irrigation. The board of commissioners concluded that the cost
29 of establishing an irrigation system and water supply on the subject property
30 would be $8,635,000. Assuming that a loan with a favorable interest rate could
Page 22
I be obtained to finance that cost, the board of commissioners concluded that the
2 annual payment on such a loan would be $345,400. The board of commissioners
3 observed that, according to the U.S. Department of Agriculture's 2017 Census of
4 Agriculture, the average annual gross income of profitable farms in the county is
5 $31,739. Accordingly, the board of commissioners concluded that that the subject
6 property is not suitable for growing crops. Record 24-25.
7 The board of commissioners concluded that the only farm use for which
8 non irrigated land that is predominantly Class 7 and 8 soils, such as the subject
9 property, is potentially suitable for is dryland grazing. Relying on (1) a formula
10 developed by the Oregon State University (OSU) Extension Service for the
11 income from grazing cattle and (2) estimates of the amount of forage grown on-
1 2 site provided by DLCD, the Oregon Department of Agricul�ure (O'vA j, and tIhe
13 Oregon Department of Fish and Wildlife (ODFW), the board of commissioners
14 concluded that the subject property could generate $4,899 per year in gross
15 income in dry years and $9,798 in wet years. Accordingly, the board of
16 commissioners concluded that the subject property is not suitable for dryland
17 grazing. Record 22-23. Specifically, the board of commissioners concluded,
18 "[T]he property may be used for grazing livestock but there is inadequate forage
19 on the property to generate net income for a rancher from grazing." Record 23.
20 In reaching that conclusion, the board of commissioners also relied on testimony
21 from several farmers and ranchers. Record 24. The board of commissioners
22 concluded that the subject property is not suitable for raising poultry, stabling or
Page 23
I training equines, or establishing a feed lot for similar reasons: Sufficient feed
2 cannot be grown on -site. Record 26-27.
3 The board of commissioners also incorporated the county hearings
4 officer's findings. Record 19-20. Those findings address each of the factors listed
5 in OAR 660-033-0020(1)(a)(B) individually: soil fertility, suitability for grazing,
6 climatic conditions, existing and future availability of water for farm irrigation
7 purposes, existing land use patterns, technological and energy inputs required,
8 and accepted farming practices. Record 77-80.
9 1. Profitability
10 Again, OAR 660-033-0020(1)(a)(B) defines "agricultural land" to include
11 land that is "suitable for farm use" based on a number of factors, and ORS
1') 1 ; ?0IM(a) defines "faron 11CP." to include farm activities that are undertaken
13 "for the primary purpose of obtaining a profit in money."
14 a. Capital Casts
15 The board of commissioners found that "[t]he expenses to establish an
16 irrigation system and the shallow, poor quality soils present on the subject
17 property would prevent a reasonable farmer from believing that he or she would
18 ever make a profit in money by conducting irrigation water -dependent farm uses
19 on the subject property." Record 25. In reaching that conclusion, the board of
20 commissioners estimated that the cost of establishing an irrigation system and
21 water supply on the subject property would be $8,635,000 and that the annual
22 payment on a favorable loan to finance that cost would be $345,400,
Page 24
I In the first subassignment of error under its third assignment of error,
2 COLW argues that the cost of establishing an irrigation system and water supply
3 is a "capital cost" and that the board of commissioners misconstrued ORS
4 215.203(2)(a) in considering capital costs in determining whether a farmer would
5 be able to grow crops on the subject property for the primary purpose of obtaining
6 a profit in money. In Wetherell v. Douglas County, the Supreme Court
7 determined that an LCDC rule prohibiting consideration of profitability when
8 determining whether land is "agricultural land," was inconsistent with ORS
9 215.203(2)(a) and Goal 3. 342 Or 666, 160 P3d 614 (2007). The Supreme Court
10 explained:
11 "The factfrnder may consider `profitability,' which includes
12 consideration of the monetary benefits or advantages that are or may
13 be obtained from the farm use of the property and the costs or
14 expenses associated with those benefits, to the extent such
15 consideration is consistent with the remainder of the definition of
16 `agricultural land' in Goal 3." Id. at 682 (emphasis in original).
17 COLW observes that the Supreme Court defined "profit," for purposes of ORS
18 215.203(2)(a), to mean "the excess or the net of the returns or receipts over the
19 costs or expenses associated with the activity that produced the returns." Id.
20 (emphasis added). We understand COLW to argue that the relevant costs or
21 expenses, for purposes of evaluating profitability, are those associated with the
22 day-to-day operations of the farm use under consideration. COLW's argument is
23 not specific to a particular farm use but, rather, broadly that "[t]he County's
24 decision confuses the concepts of intangible assets, a farmer's profit or loss from
Page 25
I engaging in a farm activity, and a farmer's intent in pursuing that farm activity."
2 COLW's Petition for Review 34.
3 710 Properties responds, and we agree, that, even if COLW is correct that
4 the board of commissioners should not have based its consideration of
5 profitability on the full cost of establishing an irrigation system and water supply,
6 $8,635,000, the board of commissioners also considered the estimated annual
7 payment on a favorable loan to finance that cost, $345,400. COLW has not
8 established that the board of commissioners erred in considering that cost or
9 expense in determining whether a farmer would be able to use the subject
10 property for the primary purpose of obtaining a profit in money from farm use.
11 Pursuant to OAR 660-033-0020(1)(a)(B), the suitability of land for farm use may
111 In" hI'AP "n"CMI'l•ntinn nfthP I'xictina and future availnhiIity of water fo r ii-rigation_
IL AAAVl- vvAAUAa..vi uux vxw - u..r.v vim....... .t, ....— A........... , --- ___'C7
13 The annual cost of procuring water for irrigation is a permissible consideration
14 when evaluating whether land is suitable for farm use.
15 The first subassignrxrent of error under COLW's third assignment of error
16 is denied.
17 b. Reasonable Farmer
18 In the second subassignrnent of error under its third assignment of error,
19 COLW argues that the board of commissioners misconstrued ORS 215,203(2)(a)
20 in concluding that the subject property is not suitable for farm use because a
21 "reasonable farmer" would not have an expectation of obtaining a profit in money
22 from growing crops thereon. Record 25. COLW argues that ORS 215.203(2)(a)
Page 26
I contains no reasonableness standard and that the board of commissioners'
2 interpretation inserts into that statute what has been omitted, contrary to ORS
3 174.010.E COLW argues that, "[t]hough a farmer may lack business acumen, the
4 phrase `primary purpose of obtaining a profit in money' refers to the intent of a
5 farmer to obtain a profit in money from farm activity." COLW's Petition for
6 Review 3 5. We understand COLW to argue that whether land would be employed
7 "for the primary purpose of obtaining a profit in money," for purposes of ORS
8 215.203(2)(a), is a subjective test that focuses on the actual intent of the farmer.
9 We have previously rejected such an interpretation. In Friends of the Creek
10 v. Jackson County, we explained:
I "[W]e do not believe the legislature intended, by requiring that the
12 land be currently employed `for the primary purpose of obtaining a
13 profit in money by raising, harvesting and selling crops,' to require
14 an inquiry into the primary actual motivation of particular land
15 owners. Such an inquiry could easily have the anomalous result of
16 having a farm that is indistinguishable from its neighbor fall outside
17 the ORS 215.203 (2)(a) definition of farm use, simply because its
18 owner happened to be primarily motivated by something other than
19 the monetary return that is realized from selling the crops that are
20 raised on the property." 36 Or LUBA 562, 576 (1999).
6 ORS 174.010 provides:
"1n 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 ivhat 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."
(Emphasis added.)
Page 27
I In Cox v. Polk County, we explained:
2 "The `primary purpose' requirement is directed at the activities that
3 are occurring on the land, not the actual motivations of the owner or
4 operator that conducts those activities. For example, a proposed
5 poplar tree farm could be owned and operated by (1) a bona fide
6 farmer who earns most of his or her income from the farm, (2) a
7 doctor living in an EFU zone who earns a small part of his or her
8 income from the faun, or (3) a real estate investment trust that holds
9 the property for long-term speculative purposes and earns a tiny
10 fraction of its income from the annual farm profits. So long as
11 [crops] are raised, harvested and sold for a gross profit, in our view,
12 it does not matter that the particular owner of the * * * farm may
13 primarily be motivated to operate the * X * faun by factors other
14 than the profit that is actually realized by raising and selling the
15 [crops]." 39 Or LUBA 1, 11-12 (2000),
16 Thus, whether land may be employed "for the primary purpose of obtaining a
17 profit in money," for purposes of ORS 215.203(2)(a), is an objective test that
18 focuses on the activities that would be occurring on the land.
19 Accordingly, we have explained that the question under OAR 660-033-
20 0020(1)(a)(B) is "whether a reasonable fanner would be motivated to put the
21 land to agricultural use, for the primary purpose of obtaining a profit in money."
22 Landtivatch Lane County v. Lane Count), 77 Or LUBA 368, 371 (2018)
23 (emphasis added). Similarly, we have said that the question is "whether the
24 property is capable of farm use with a reasonable expectation of yielding a profit
25 in money." Doherty v. Wheeler County, 56 Or LUBA 465, 472 (2008) (internal
26 quotation marks omitted; emphasis added). The board of commissioners did not
27 err in considering whether a "reasonable farmer" would have an expectation of
Page 28
I obtaining a profit in money from growing crops on the subject property. Record
2 25.
3 The second subassignment of error under COLW's third assignment of
4 error is denied.
5 COLW's third assignment of error is denied.
6 C. Commercial Scale
7 In Wetherell v. Douglas County, we explained that "Goal 3 protects small-
8 scale agricultural uses as well as large-scale ones," and we concluded that the
9 county in that case erred in applying what was "essentially a `commercial -scale'
10 agricultural operation standard under OAR 660-033--0020(1)(a)(B)." 50 Or
11 LUBA 167, 184-85 (2005), r•em'd on other grounds, 204 Or App 732, 132 Pad
t n e,^. � rrr i rn rin Y r�.� in nnn� -r ..
12 41 (2006), rem "d on other gr�ounas, -542 Or t5ar7, 1050 r.3a n I4 (200 ). In a portion
13 of the first subassignment of error under its first assigmnent of error, Redside
14 argues that the board of commissioners, like the county in Wetherell,
15 misconstrued OAR 660-033-0020(1)(a)(B) and ORS 215.203(2)(a) in
16 concluding that the subject property would be suitable for farm use only if it could
17 support faun activities at a relatively large, commercial scale or intensity.
18 We do not understand the board of commissioners to have concluded that
19 the subject property is not suitable for farm use because it cannot support farm
20 activities at a commercial scale. In other words, the county did not conclude that,
21 while a farmer might have a reasonable expectation of obtaining a profit in
22 money, that profit would not be large enough to support farm activities at a
Page 29
I commercial scale. Rather, we understand the board of commissioners to have
2 concluded that, based on the factors listed in OAR 660-033-0020(1)(a)(B), a
3 farmer would not have a reasonable expectation of obtaining any profit in money
4 from engaging in any of the farm activities listed in ORS 215.203(2)(a). See, e.g.,
5 Record 24 ("No reasonable farmer would conduct a cattle or other livestock
6 operation on the subject property intending to make a profit in money from the
7 endeavor." (Emphasis added.)); Record 25 ("The expenses to establish an
8 irrigation system and the shallow, poor quality soils present on the subject
9 property would prevent a reasonable farmer from believing that he or she would
10 ever make a profit in money by conducting irrigation water -dependent farm uses
11 on the subject property." (Emphasis added.)). Accordingly, this argument
1 .,;14 ,,�, heroic Fnf• 1PT/Pt'CnI "I. 1•pmnnli.
14 pro v iu� a Lim vu i — ........�— --
13 This portion of the first subassignment of error under Redside's first
14 assignment of error is denied.
15 d. Weight of Profitability as a Consideration
16 Again, OAR 660-033-0020(1)(a)(B) defines "agricultural land" to include
17 land that is "suitable for farm use" based on a number of factors. We have
18 explained:
19 "[Tjhe considerations listed in OAR 660-033-0020(1)(a)(B)—soil
20 fertility, suitability for grazing, climatic conditions, existing and
21 future availability of water for farm irrigation purposes, existing
22 land use patterns, technological and energy inputs required, and
23 accepted farming practices —are the primary drivers of any
24 determination under the rule whether land is `suitable for farm use'
Page 30
I as defined in ORS 215.203(2)(a). X
2
3 "* x * [W]hile profitability is a permissible consideration in
4 determining whether land is agricultural land under the rule
5 definition, it is a relatively minor consideration, and one with a large
6 potential for distracting the decision maker and the parties from the
7 primary considerations listed in the rule definition —soil fertility,
8 suitability for grazing, climatic conditions, existing and future
9 availability of water for farm irrigation purposes, existing land use
10 patterns, technological and energy inputs required, and accepted
11 farming practices." Wetherell v. Douglas County, 58 Or LUBA 638,
12 655-57 (2009) (emphases added).
13 Again, ORS 215.203(2)(a) provides:
14 "As used in this section, faun use' means the current employment
15 of land for the primary purpose of obtaining a profit in money by
16 raising, harvesting and selling crops or the feeding, breeding,
1.7 management and sale af, or the produce of, livestock, poultry, firr-
18 bearing animals or honeybees or for dairying and the sale of dairy
19 products or any other agricultural or horticultural use or animal
20 husbandry or any combination thereof. `Farm use' includes the
21 preparation, storage and disposal by marketing or otherwise of the
22 products or by-products raised on such land for human or animal
23 use. `Farm use' also includes the current employment of land for the
24 primary purpose of obtaining a profit in money by stabling or
25 training equines including but not limited to providing riding
26 lessons, training clinics and schooling shows. `Farm use' also
27 includes the propagation, cultivation, maintenance and harvesting of
28 aquatic, bird and animal species that are under the jurisdiction of the
29 State Fish and Wildlife Commission, to the extent allowed by the
30 rules adopted by the commission. `Farm use' includes the on -site
31 construction and maintenance of equipment and facilities used for
32 the activities described in this subsection. `Farm use' does not
33 include the use of land subject to the provisions of ORS chapter 321,
34 except land used exclusively for growing cultured Christmas trees
35 or land described in ORS 321.267 (3) or 321.824 (3)." (Emphases
Page 31
1 added.)
2 DLCD's second assignment of error, the first subassigrmlent of error under
3 Redside's first assignment of error, and a portion of intervenors -petitioners
4 William Buchanan, Elizabeth Buchanan, and Keystone Cattle & Performance
5 Horses, LLC's (collectively, Keystone's) assignment of error are that the board
6 of commissioners misconstrued OAR 660-033-0020(1)(a)(B) and ORS
7 215.203(2)(a) in its consideration of the profitability of farm uses on the subject
8 property. DLCD, Redside, and Keystone argue that, in determining whether the
9 subject property is suitable for farm use, rather than treating the factors listed in
10 OAR 660-033-0020(1)(a)(B) as the primary drivers of the determination and
11 profitability as a relatively minor consideration, the board of commissioners
12 reduced the inquiry "to a binary test with profitability as the determining factor
13 of whether Goal 3 protection applies." DLCD's Petition for Review 18. While
14 the county's findings address each of the factors listed in OAR 660-033-
15 0020(1)(a)(B) individually, DLCD, Redside, and Keystone observe that almost
16 all of those findings ultimately relate to profitability.
17 710 Properties responds that the county properly related its findings
18 addressing each of the factors listed in OAR 660-033-0020(1)(a)(B) to
19 profitability. 710 Properties argues that profitability is not merely a factor in
20 addition to those listed in OAR 660-033-0020(1)(a)(B). Rather, 710 Properties
21 observes that profitability is part of the definition of "farm use" itself at ORS
22 215.203(2)(a) and that OAR 660-033-0020(1)(a)(B) requires a determination of
Page 32
I whether the subject property is "suitable for far°rn use" based on the listed factors,
2 (Emphasis added.) 710 Properties argues that the question is not whether, based
3 on the factors listed in OAR 660-033-0020(1)(a)(B) as well as profitability, the
4 property is suitable for engaging in any of the farm activities listed in ORS
5 215.203(2)(a). Rather, 710 Properties argues that the question is whether, based
6 on the factors listed in OAR 660-033-0020(1)(a)(B), a farmer would have a
7 reasonable expectation of obtaining a profit in money from engaging in any of
8 the farm activities listed in ORS 215.203(2)(a).
9 In Wetherell, the applicant sought to demonstrate that the subject property
10 was not "agricultural land" for purposes of Goal 3. To that end, the applicant
11 provided an economic analysis, referred to as the "Day report," which "concluded
12 that the annual and amortized expenses of conducting a grazing opeAatloLl using
13 accepted farm practices far exceed the likely annual revenues, given inherent
14 limitations such as poor soils and the current neglected condition of the property."
15 58 Or LUBA at 655. In a portion of one subassignment of error, the petitioners
16 argued that the county misconstrued the applicable law by placing too much
17 weight on profitability. We observed that economic analyses are inherently
18 subject to manipulation.'
We explained:
"[A]n economic analysis like that of the Day report is highly
manipulable, and can yield dramatically different results depending
Page 33
I The county's findings "extensively discussed] the considerations set out
2 in OAR 660-033-0020(1)(a)(B), and conclude[d] based on those considerations
on what variables are assumed and what approaches are used. To
take one example, by far the largest of the assumed expenses under
the Day report is for fertilizer, in amounts and at intervals in excess
of the amounts and intervals applied to the property in its previous
history of grazing, even though the Day report concludes that
application of fertilizer in those amounts would be uneconomical
and not significantly improve productivity. The parties dispute,
among many other things, whether `accepted farming practices'
would include annual application of fertilizer and in such amounts
on the subject property. We do not resolve that dispute here, but it
illustrates the difficulty in assigning the appropriate role and weight
to an economic analysis such as the Day report. Depending on what
assumptions and variables are used, such economic analyses could
easily conclude that is `unprofitable' to graze land that historically
has been grazed profitably or, for that matter, that it is `profitable'
to graze land that in fact cannot be grazed profitably. In Wetherell
III, the Court seemed to caution against relying too heavily on such
economic analyses of profitability. See 342 Or at 683 (rejecting
arguments that `if particular land currently is "profitable" or
produces "gross farm income," then that land necessarily meets the
"faun use" test and is properly classified as agricultural land under
Goal 3, whereas if the land is "unprofitable" for farming or produces
no "gross farm income," then it necessarily is not agricultural land
under Goal 3').
"* * * Because an economic analysis such as the Day report yields
hard numbers, it is easy to assign an unwarranted significance to the
analysis, and fail to appreciate that it is based on highly variable
assumptions regarding hypothetical farm uses, and that its
conclusions are only as reliable as its assumptions." Wetherell, 58
Or LUBA at 656-57.
Page 34
I that the property [was] not agricultural land under the definition." Id, at 657. The
2 county's findings also
3 "extensively discussed] profitability and relied] heavily on the Day
4 report to conclude that the subject property [was] not suitable for
5 farm use as defined in ORS 215.203 (2)(a), in part because the
6 county believed, based on the Day report, that no farm use of the
7 property could reasonably be expected to yield a profit." Id.
8 The intervenor argued that,
9 "even if different assumptions are used[,] the gap between annual
10 income and annual and amortized expenses is so large that under no
11 likely scenario would a prudent farmer be motivated to graze the
12 subject property alone or in conjunction with other property with
13 the expectation of obtaining a profr.t in money." Id. at 656 (emphasis
14 added.)
15 We were unable to conclude that the county's findings "place[d] preponderant or
16 inappropriate weight on profitability or in considering profitability failed] to
17 give sufficient weight to the factors listed in OAR 660-033-0020(1)(a)(B)." Id.
18 at 657.We therefore denied that portion of the subassignment of error.
19 Here, the board of commissioners related the various factors to their impact
20 on the profitability of farming activities on the subject property. Those factors
21 properly inform whether a farmer would have a reasonable expectation of
22 obtaining a profit by engaging in any of the farm activities listed in ORS
23 215.203(2)(a) and, therefore, inform whether the property is suitable for farm
24 use. We conclude, however, that the board of commissioners did err in placing
25 undue weight on the profitability of farm use on the ,subject property. In various
26 assignments of error, COLW, DLCD, and Redside emphasize that the definition
Page 3 5
I of "farm use" at ORS 215,203(2)(a) requires not that a farm activity actually be
2 profitable but that it be undertaken for the primary puupose of obtaining a profit.
3 DLCD argues that "[t]he key language in ORS 215.203(2)(a) is as follows:
4 "`farm use" means the current employment of land for the primary purpose of
5 obtaining a profit in money by [one or a combination of the listed activities.] "'
6 DLCD's Petition for Review 23 (emphasis in brief). "[T]he profitability aspect
7 of the definition relates to the primary purpose of the activity." Id. at 24
8 (emphasis in original). As we discuss in our resolution of a subsequent
9 assigiunent of error, the board of commissioners' decision fails to consider the
10 ability to use the subject property with a primary purpose of obtaining a profit in
11 money in conjunction with other property. The county found:
1 r1 GG'PI_ I- + roc. v�on$o��cr nc•o At'f that the barriers, fn fanning the
1G 11Ee sLMI., agLAEl 1VJ ie}JVGlLVU1� uJJV11. c11u� �11 va111 _ b
13 subject property set forth by [710 Properties] could be alleviated by
14 combining farm operations with other owned and/or leased land,
15 whether adjacent to the subject property or not. The Hearings
16 Officer finds that the definition of `farm use' in ORS 215.203(2)(a)
17 refers to Gland,' ----not Glands,' ---and does not include any reference
18 to `combination' or requirement to 'combine' with other agricultural
19 operations. Therefore, if the subject property, in and of itself cannot
20 be engaged in farm use for the primary purpose of obtaining a profit
21 in money, it does not constitute agricultural land." Record 76
22 (boldface and italics in original).
23 ORS 215.203(2)(a) refers to the employment of land for the primary purpose of
24 obtaining a profit by engaging in a farm activity. "Nearby or adjacent land,
25 regardless of ownership, shall be examined to the extent that a lot or parcel is
26 either `suitable for farm use' or `necessary to permit farm practices to be
Page 36
I undertaken on adjacent or nearby lands' outside the lot or parcel." OAR 660-033-
2 0030(3). Relating the profitability of farm related activity solely to the activity
3 on the subject property places undue weight on profitability. The board of
4 commissioners improperly weighed the consideration of profitability of the
5 subject property operating independently.
6 DLCD's second assignment of error, the first subassignment of error under
7 Redside's first assignment of error, and this portion of Keystone's assignment of
8 error are sustained.
9 2. Source of Feed
10 Again, the board of commissioners concluded that the subject property is
11 not suitable for grazing, raising poultry, stabling or training equines, or
e rr. _ _� r s a 1, n;ro Ti o
12 establishing a feed lot because suffilcieiIt iueCu earnot- be grown. oil -slice. For
13 example, the board of commissioners found:
14 "The suitability test, as indicated by DLCD/ODA/ODFW
15 comments, relates to whether the subject property itself can support
16 a farm use. This means that the land must be able to produce crops
17 or forage adequate to feed livestock raised on the property;
18 something that severely limits the size of any operation." Record 26.
19 The first subassignment of error under DLCD's first assignment of error
20 and the second and fourth subassignments of error under Redside's first
21 assignment of error are that the board of commissioners misconstrued OAR 660-
22 033-0020(1)(a)(B) and ORS 215.203(2)(a) in concluding that land is suitable for
23 farm uses involving animals only if sufficient feed can be grown on -site. DLCD
Page 37
I and Redside argue that that interpretation is not supported by the text of OAR
2 660-033-0020(1)(a)(B) or ORS 215.203(2)(a), both of which are silent as to the
3 source of the feed that is necessary to sustain animals involved in farm uses.
4 DLCD and Redside argue that there is no apparent reason why forage grown. on-
5 site cannot be supplemented with feed imported from off -site, which would
6 enable the subject property to sustain more animals and, potentially, obtain a
7 profit in money. DLCD and Redside argue that the board of commissioners'
8 interpretation inserts into OAR 660-033-0020(1)(a)(b) and ORS 215.203(2)(a)
9 limitations that have been omitted, contrary to ORS 174.010. See n 6.
10 710 Properties responds that this issue is waived because no party raised it
11 below. In its petition for review, and again in its reply brief, DLCD identifies its
12 first avoifv meet o f ermt, aC hnvina hn_nn nre_,served in an April 19. 2022. letter that
13 it, ODA, and ODFW submitted into the record (state agency letter). Record 1427-
14 38. We have reviewed the cited pages, and, for the following reasons, we
15 conclude that this issue was preserved.
16 Again, for purposes of Goal 3, "agricultural land" includes land that is
17 "suitable for farm use" based on a number of factors. OAR 660-033-
18 0020(1)(a)(B). One of those factors is "soil fertility." In addressing soil fertility,
19 the state agency letter argued;
20 "Soil fertility can be an important factor in commercial agricultural
21 operations. However, the presence of productive soils is not always
22 necessary. Many types of faun uses are not dependent on specific
23 soil types and others tend to benefit from less productive soils.
Page 3 8
I Feedlots, whether commercial or personal, are fi°equently located
2 on lands with low soil fertility," Record 1429 (emphasis added).
3 Responding to the state agency letter, 710 Properties argued:
4 "[T]he claim that a feedlot could be sustained by the land is clearly
5 unreasonable. It is obvious that hay and feed grown on fauns with
6 superior soils would need to be imported to the subject property to
7 feed the livestock * * *. Notwithstanding the fact that suitabilioJ
8 analysis for farm use relates to a particular piece of land and its
9 ability to support a farm use, accepting COLW's or the Agency
10 Letter's claim that a feedlot could be established is essentially a
11 claim that a feedlot could be established anywhere, either on
12 productive farm land or in a Walmart parking lot. But that argument
13 runs in the face of the purpose of Goal 3—which is to protect lands
14 that can actually be used to grow food and would make meaningless
15 almost every consideration enumerated by the rule." Record 651-52
16 (footnote omitted; emphases added).
17 Like 710 Properties, the county hearings officer recognized the state agency
18 letter's feedlot example as an argument that forage grown on -site can be
19 supplemented with feed imported from off -site:
20 "COLW's claim that `soil capability * * * is irrelevant' because
21 some farm uses are `unrelated to soil type' is erroneous because the
22 definition of `Agricultural Land' provided by Goal 3 makes soil
23 fertility and the suitability of the soil for grazing the exact issues that
24 must be considered by the County to determine whether the subject
25 property is `land in other soil classes that is suitable for farm use.'
26 DLCD, ODFW and ODA make the same mistake in ignoring the
27 ability of the land itself, rather than imported feed, to support a faun
28 use. The fact that the suitability test is tied to the specific soil found
29 on a subject Property by the Goal 3 definition makes it clear that the
30 proper inquiry is whether the land itself can support a farm use.
31 Otherwise, any land, no matter how barren, would be classified as
32 farmland ---which it is not and should not be." Record 64 (emphasis
33 added).
Page 39
I Finally, the board of commissioners found, "While hay and feed may be imported
2 to increase production of livestock, that is not a correct measure of whether the
3 land proposed for rezoning can support a particular farm use —the question asked
4 by the definition of Agricultural Land in Goal 3." Record 27.
S We conclude that the state agency letter gave the county and the parties
6 fair notice and an adequate opportunity to respond to the argument that forage
7 grown on -site can be supplemented with feed imported from off -site.
8 Accordingly, the issue is not waived.
9 On the merits, 710 Properties' response is two -fold. First, 710 Properties
10 defends the county's conclusion that whether the subject property would be able
11 to obtain a profit in money if forage grown on -site was supplemented with feed
17 irnr,nrf" from offsite. dnec not mutter for purposes of determining whether the
13 subject property is suitable for farm use. 710 Properties argues that, under ORS
14 215.203(2)(a) and OAR 660-033-0020(1)(a)(B), it is the subject property's
15 capacity for farm use that must be analyzed, not whether other lands' capacity
16 for farm use can make the subject property suitable for farm use. 710 Properties
17 repeats its argument below that, if feed imported from off -site could make
18 otherwise unsuitable land suitable for farm use and therefore agricultural land,
19 then "any and all lands —including a Walmart parking lot —would * * * qualify
20 to be protected as Goal 3 protected land. That cannot be the law." 710 Properties'
21 Intervenor -Respondent's Brief 17.
Page 40
I We agree with DLCD and Redside that the board of commissioners'
2 interpretation is not supported by the text of OAR 660-033-0020(1)(a)(B) or ORS
3 21.5.203(2)(a), both of which are silent as to the source of the feed that is
4 necessary to sustain animals involved in farm uses. That interpretation inserts
5 what has been omitted, contrary to ORS 174.010. See n 6. Under ORS
6 215.203(2)(a), "farm use" includes the feeding, breeding, management, and sale
7 of livestock and poultry and the stabling or training of equines. Whether
8 livestock, poultry, and equines are sustained with forage grown on -site or feed
9 imported from off -site, their feeding, breeding, management, sale, stabling, and
10 training potentially qualify as farm uses. The board of commissioners
11 misconstrued OAR 660w033-0020(1)(a)(B) and ORS 215.203(2)(a) in
12 concluding that rand is suitable for larin Uses inVolv111p, U111111a1S 0111y 11 Su111CDMI
13 feed can be grown on -site.
14 In response to 710 Properties' argument that, under the foregoing
15 interpretation, any and all lands —including a Wahnart parking lot --would
16 qualify as agricultural lands, we repeat that, in determining whether land is
17 suitable for dryland grazing, the question is whether, based on the factors listed
18 in OAR 660-033-0020(1)(a)(B), a farmer would have a reasonable expectation
19 of obtaining a profit in money from that activity. That requirement remains, even
20 though forage grown on -site may be supplemented by feed imported from off-
21 site.
Page 41
1 710 Properties' second response is that at least two ranchers testified below
2 that it would be infeasible to supplement forage grown on the subject property
3 with feed imported from elsewhere. Record 1417, 3022. 710 Properties argues
4 that no party offered contrary credible testimony or evidence.
5 It may be that, even if feed is imported from off -site, the subject property
6 is not suitable for the feeding, breeding, management, and sale of livestock and
7 poultry or the stabling or training of equines for the primary purpose of obtaining
8 a profit in money, given the factors listed in OAR 660-03 3-0020(1)(a)(B).
9 However, the board of commissioners did not reach that conclusion. Instead, as
10 quoted above, the board of commissioners erroneously concluded that it need not
11 consider whether forage grown on -site can be supplemented by feed imported
S 1) -A—,, „Pf r;fA fln rerrrand thP. county will, have an opportunity to evaluate the
1 L. 11 Vlll Vll 'JLLV -
13 testimony that 710 Properties cites through the proper lens and reach its own
14 conclusion.
15 The first subassignment of error under DLCD's first assignment of error
16 and the second and fourth subassigrunents of error under Redside's first
17 assignment of error are sustained.
18 3. On -Site Construction and Maintenance of Equipment and
19 Facilities
20 "`Farm use' includes the on -site construction and maintenance of
21 equipment and facilities used for the activities described in this subsection." ORS
22 215.203(2)(a). The county found that "storage and maintenance of equipment is
Page 42
I not, in and of itself, a farm use unless such equipment is for the production of
2 crops or a farm use on the subject property." Record 78.
3 In the second subassignment of error under its first assignment of error,
4 DLCD argues that the board of commissioners misconstrued OAR 660-033-
5 0020(1)(a)(B) and ORS 215.203(2)(a) in concluding that land is suitable for the
6 "construction and maintenance of equipment and facilities used for" farm
7 activities only if those farm activities also occur on the subject property. DLCD
8 argues that that interpretation is not supported by the text of OAR 660-033-
9 0020(i)(a)(B) or ORS 215.203(2)(a). DLCD argues that, as long as the
10 equipment and facilities are used for farm activities, the construction and
11 maintenance thereof are farm uses, regardless of whether those farm activities
12 occur on the subject property or elsewhere.
13 710 Properties defends the county's conclusion. 710 Properties argues that,
14 under ORS 215.203(2)(a) and OAR 660-033-0020(1)(a)(B), the question is
15 whether the subject property is suitable for farm use, not whether the subject
16 property is suitable for supporting farm uses on other- lands. 710 Properties
1.7 argues that, if land was suitable for the construction and maintenance of
18 equipment and facilities used for farm activities even where those farm activities
19 occur elsewhere, then "every land in Oregon [would] be Goal 3 lands because it
20 too could support hay storage or a machine shop." 710 Properties' Intervenor-
21 Respondent's Brief 37 (emphasis in original). 710 Properties observes that, in
22 addition to lands in Eastern Oregon classified by the NRCS or a site -specific soils
Page 43
I assessment as predominantly Class 1 to 6 soils and land in other soil classes that
2 is suitable for farm, for purposes of Goal 3, "agricultural land" includes "[ljand
3 that is necessary to permit farm practices to be undertaken on adjacent or nearby
4 agricultural land." OAR 660-033-0020(1)(a)(C). In light of that context, 710
5 Properties argues that, where equipment and facilities are constructed or
6 maintained on certain land, but where the farm activities for which that
7 equipment and those facilities are used occurs on other land, the land on which
8 the equipment and facilities are constructed and maintained is "agricultural land"
9 only if that construction and maintenance is "necessary" to permit the farm
10 practices on the other land. 710 Properties argues that no party raised the issue
11 below that the construction and maintenance of equipment and facilities on the
ill 1.. CC4- ,-ram, ;r �yYIAnACC ]!'{Ii!l Y�At t114i TnuVM rarti�Ac PisP:xrhPJ-P and thnt that
1G SUYJ L YrvYe,Ly 0 A1VVV Jil G4E Y lV L/V1111E1 1 1111 p 41vvv
13 issue is therefore waived. E
14 We do not understand DLCD to argue that the construction or maintenance
15 of equipment and facilities on the subject property is "necessary" to permit farm
16 practices elsewhere under OAR 660-033-0020(1)(a)(C). Rather, DLCD argues
17 that land may be "suitable" for the construction and maintenance of equipment
18 and facilities used for faun activities under OAR 660-033-0020(1)(a)(B) even
19 where those farm activities occur on other lands. We agree with DLCD. Under
20 ORS 215.203(2)(a), "farm use" includes the construction and maintenance of
21 equipment and facilities used for farm activities. Whether those farm activities
22 occur on the subject property or elsewhere, the construction and maintenance of
Page 44
I the equipment and facilities used therefor is a farm use. The board of
2 commissioners misconstrued OAR 660-033-0020(l)(a)(B) and ORS
3 215.203(2)(a) in concluding that land is suitable for that farm use only if the farm
4 activities occur on the same land.
5 In response to 710 Properties' argument that, under the foregoing
6 interpretation, all lands in Oregon would qualify as agricultural land because they
7 could support hay storage or a machine shop, we repeat that, in determining
8 whether land is suitable for the construction and maintenance of equipment and
9 facilities, the county must consider the factors listed in OAR 660-033-
10 0020(1)(a)(B): soil fertility, suitability for grazing, climatic conditions, existing
11 and future availability of water for farm irrigation purposes, existing land use
12 patterns, technological and energy inputs required, and accept-eu Lat uu.- r,
13 practices. That requirement remains, even though the farm activities for which
14 the equipment and facilities are used occur elsewhere.
15 It may be that, even if the farm activities for which the equipment and
16 facilities are used occur elsewhere, the subject property is not suitable for the
17 construction and maintenance of the equipment and facilities used therefor, given
18 the factors listed in OAR 660-033-0020(1)(a)(B). However, the board of
19 commissioners did not reach that conclusion. Instead, the board of
20 commissioners erroneously concluded that land is suitable for that farm use only
21 if the farm activities occur on the same land. On remand, the county will have an
Page 45
I opportunity to evaluate the evidence in the record through the proper lens and
2 reach its own conclusion.
3 The second subassignment of error under DLCD's first assignment of error
4 is sustained.
5 4. Nearby or Adjacent Land
6 The county found:
7 "The state agencies repeatedly assert that the barriers to farming the
8 subject property set forth by [710 Properties] could be alleviated by
9 combining farm operations with other owned and/or leased land,
10 whether adjacent to the subject property or not. The Hearings
11 Officer finds that the definition of `farm use' in ORS 215.203(2)(a)
12 refers to `land,' —not `lands,' ---and does not include any reference
13 to `combination' or requirement to `combine' with other agricultural
14 operations. Therefore, if the subject property, in and of itself cannot
15 be engaged in farm use for the primary purpose of obtaining a profit
16 in money, it does not constitute agricultural land. There is no
17 requirement in ORS 215.203(2)(a) or OAR Chapter 660-033 that a
18 certain property must `combine' its operations with other properties
19 in order to be employed for the primary purpose of obtaining a profit
20 in money and thus, engaged in farm use." Record 76 (boldface and
21 italics in original).
22 OAR 660-033-0030(3) provides, "Goal 3 attaches no significance to the
23 ownership of a lot or parcel when determining whether it is agricultural land.
24 Nearby or adjacent land, regardless of ownership, shall be examined to the extent
25 that a lot or parcel is * * * `suitable for farm use' * * *." The third subassignment
26 of error under DLCD's first assignment of error, the third subassignment of error
27 under Redside's first assignment of error, and a portion of Keystone's assignment
28 of error are that, in light of OAR 660-033-0030(3), the board of commissioners
Page 46
1 misconstrued OAR 660-033-0020(1)(a)(B) and ORS 215.203(2)(a) in
2 concluding that it was not required to consider whether the subject property is
3 suitable for farm use in conjunction with nearby or adjacent land.
4 710 Properties responds that this issue is waived because no party raised
5 OAR 660-033-0030(3) below. While it may be true that no party specifically
6 cited OAR 660-033-0030(3) in their testimony, the state agency letter argued that
7 utilizing a five -to -six-month grazing season "in conjunction with other lands"
8 would make the subject property more suitable for dryland grazing, and the
9 hearings officer found that the state agencies had "repeatedly" argued that the
10 county was required to consider nearby or adjacent land. Record 76, 1430. We
11 conclude that the county and the parties had fair notice and an adequate
i 1 a rr.4- tzrnicta�
f2 opportunity to respond to that ar-It.-It. tVUUUruriigiy, UIVI iSsu , 1a 11vt, vvulvvu.
13 We agree with DLCD, Redside, and Keystone that the county
14 misconstrued OAR 660-033-0020(1)(a)(B) and ORS 215.203(2)(a) in
15 concluding that it was not required to consider whether the subject property is
16 suitable for farm use in conjunction with nearby or adjacent land. We have
17 previously explained that "[t]he suitability for farm use inquiry must * * *
18 consider the potential for use in conjunction with adjacent or nearby land."
19 Landwatch Lane Couno), 77 Or LUBA at 371 (citing OAR 660-033-0030(3));
20 see also Wetherell, 50 Or LUBA at 186-87 (OAR 660-033-0030(3) requires
21 counties to consider whether the subject parcel can be used in conjunction with
Page 47
I nearby or adjacent land in other ownerships in determining whether the parcel is
2 "suitable for farm use" under OAR 660-033-0020(1)(a)(B)).
3 On the merits, we do not understand 710 Properties to defend the county's
4 conclusion that it was not required to consider nearby or adjacent land in
5 determining whether the subject property is suitable for farm use under OAR
6 660-033-0020(1)(a)(B). Instead, 710 Properties observes that several farmers and
7 ranchers testified that they would not consider incorporating the subject property
8 into their farm operations. It may be that the subject property is not suitable for
9 farm use even in conjunction with nearby or adjacent land. However, the county
10 did not reach that conclusion. Instead, as quoted above, the county erroneously
I I concluded that it need not consider nearby or adjacent land at all. On remand, the
12 county will have an onnoilunity to evaluate. the testimony that 710 Properties
1.3 cites through the proper lens and reach its own conclusion. We observe that
14 Keystone submitted testimony expressing its desire to use the subject property in
15 conjunction with its existing farming operations, and a business plan to do that.
16 Record 1583-602.On remand, the county should evaluate that testimony through
17 the proper lens, as well.
18 The third subassignment of error under DLCD's first assignment of error,
19 the third subassignment of error under Redside's first assignment of error, and
20 this portion of Keystone's assignment of error are sustained.
21 DLCD's first assignment of error, Redside's first assignment of error, and
22 Keystone's assignment of error are sustained.
•
1
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4
5
6
7
8
9
10
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13
14
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5. Findings and Substantial Evidence
Several farmers and ranchers submitted testimony indicating that they did
not believe the subject property is suitable for grazing cattle. In an April 26, 2022,
letter, 710 Properties argued that the subject property is not suitable for a variety
of other farm uses including elk ranching, sheep ranching, goats, game birds,
poultry/chickens/eggs, alpacas, a vineyard, lavender, hemp, honey/bees, a feed
lot, and horse boarding and training. Record 3065-68. The letter has 80 exhibits,
many of which are intended to support those arguments.' Record 3070-419.
In concluding that the subject property is not suitable for grazing cattle, the
board of commissioners relied on the farmer and rancher testimony:
"We have considered the vast amount of combined experience of
these farmers and ranchers in conducting similar operations and find
their testimony more probative and persuasive than that offered by
the opposition on the issue of whether the subject property is
suitable for farm use as defined by ORS 215.203. Based on evidence
and comments submitted into the record from ranchers and fariners,
including James M. Stirewalt, Rand Campbell, Matt and Awbrey
Cyrus, Russ Mattis, Zach Russell, Craig May, the Board finds the
subject property is not suitable for dryland grazing. No reasonable
farmer would conduct a cattle or other livestock operation on the
subject property intending to make a profit in money from the
endeavor." Record 24.
8 The letter states, "Commenters suggested any number of additional farm
uses could be made on the Property. We provide evidence of these types of uses
now and their requirements to be a `farm use' and done as a for -profit operation."
Record 3065.
Page 49
I In concluding that the subject property is not suitable for other farm uses, the
2 board of commissioners relied on 710 Properties' April 26, 2022, letter: "[710
3 Properties] provided extensive evidence that a wide array of farm activities,
4 including those identified by the State agencies, would not be feasible on the
5 subject property and would not be able to be conducted with an intention to make
6 a profit in money." Record 26.
7 In its fourth assignment of error, DLCD argues that the board of
8 commissioners' findings that the subject property is not suitable for farm use are
9 inadequate and not supported by substantial evidence. DLCD argues that the
10 farmer and rancher testimony on which the board of commissioners relied to
11 conclude that the subject property is not suitable for grazing cattle is conclusory
11) qnA »nhPi fi,t T)T ,CD also nr rip,s that the information contained in the exhibits
.A .4 and N++++Y+p.a y.+• ..1 i. L,
13 to 710 Properties' April 26, 2022, letter is "basic, factsheet-type information that
14 someone might glance through to learn about an animal." DLCD's Petition for
15 Review 32.
16 Adequate findings are required to support quasi-judicial land use
17 decisions. Sunnyside Neighborhood v. Clackamas Co. Coinin., 280 Or 3, 20-21,
18 596 P2d 1063 (1977). Generally, findings must (1) identify the relevant approval
19 standards, (2) set out the facts which are believed and relied upon, and (3) explain
20 how those facts lead to the decision on compliance with the approval standards.
21 Heiller v. Josephine County, 23 Or LUBA 551, 556 (1992). In addition, findings
22 must address and respond to specific issues relevant to compliance with
Page 50
I applicable approval standards that were raised in the proceedings below. Norvell
2 v. Portland Area LGBC, 43 Or App 949, 853, 604 P2d 896 (1979). LUBA shall
3 reverse or remand a decision that is not supported by substantial evidence in the
4 whole record. ORS 197.835(9)(a)(C). Substantial evidence is evidence that a
5 reasonable person would rely on in malting a decision. Dodd v. Hood River
6 County, 317 Or 172, 179, 855 P2d 608 (1993).
7 710 Properties responds that this issue is waived because no party raised it
8 below. We agree with DLCD's response that, in order to preserve the right to
9 challenge at LUBA the evidentiary support for findings adopted to address a
10 relevant criterion, a petitioner must challenge the proposal's compliance with that
11 criterion during the local proceedings. The evidence ultimately relied on by the
12 decision -maker need not be anticipated and specifically challenged d t inn ilLe
13 local proceedings. Lucier v. City of Medford, 26 Or LUBA 213, 216 (1993).
14 DLCD challenged the application's compliance with OAR 660-033-
15 0020(1)(a)(B) during the local proceedings. It was not required to anticipate that
16 the board of commissioners would ultimately rely on the information contained
17 in the exhibits to 710 Properties' April 26, 2022, letter or the farmer and rancher
18 testimony and specifically challenge that evidence. Accordingly, the issue is not
19 waived.
20 As explained above, the board of commissioners erroneously concluded
21 (1) that it need not consider whether forage grown on -site can be supplemented
22 by feed imported from off --site, (2) that land is suitable for the construction and
Page 51
I maintenance of equipment and facilities used for farm activities only if those farm
2 activities occur on the same land, and (3) that it need not consider nearby or
3 adjacent land at all. Because we remand the county's decision for the board of
4 commissioners to evaluate the evidence in the record through the proper lens, and
5 because the board of commissioners may adopt new or different findings on
6 remand based on the correct analytical framework, we do not resolve DLCD's
7 fourth assignment of error.
8 C. OAR 660-033-0020(l)(a)(C)
9 In addition to lands in Eastern Oregon classified by the NRCS or a site-
10 specific soils assessment as predominantly Class 1 to 6 soils and other lands that
11 are suitable for farm use, for purposes of Goal 3, "agricultural land" includes
r 1)ILI «1-11an � thaf ,s necessary to pert -nit farm nractices to be undertaken on adjacent or
13 nearby agricultural lands." OAR. 660-033-0020(l)(a)(C). In its application, 710
14 Properties provided four tables (one for each cardinal direction) listing the
15 surrounding EFU-zoned properties, listing their current uses, listing their
16 potential farm practices, and explaining why none of them needed the subject
17 property in order to conduct those farm practices. Record 4646-48.
18 In addressing OAR 660-033-0020(1)(a)(C), the state agency letter argued:
19 "There is little discussion that we found in the information provided
20 in support of the plan amendment that adequately discusses impacts
21 to area farm operations. The discussion provided by [710 Properties]
22 focuses primarily on an assertion that any subsequent development
23 of the subject property (because of the proposed plan amendment
24 and rezone) would not adversely impact surrounding farming and
Page 52
I ranching operations primarily because the property is separated by
2 topography that would provide adequate buffers. This conclusion is
3 not supported by any comprehensive evaluation of the farming and
4 ranching practices that are associated with existing and potential
5 future farm uses in the surrounding area. Without an adequate
6 analysis of the impact on adjacent or nearby agricultural lands, there
7 are many questions that have not been evaluated. For example, what
8 would the cumulative impacts of additional residential water use be
9 to water supply for area irrigated agriculture in the region? Unlike
10 applications for irrigation use, residential wells are exempt uses and
11 thus there would be no evaluation for injury to other water users in
12 the area. What would be the traffic implications? What would the
13 siting of more dwellings do to the ability to utilize certain
14 agricultural practices? Would the expansion of residential
15 development in the area provide greater opportunities for trespass
16 from adjacent properties onto area farming operations?" Record
17 1432.
18 The hearings officer found, "[T]here is no showing that the subject
1 g nm erty is r►ecessaty for farming practices on any surrounding agricultural lands.
20 There is no evidence that the subject property contributes to any such practices,
21 nor that other lands depend on use of the subject property to undertake any farm
22 practices." Record 75 (emphases added).
23 The board of commissioners found:
24 "The State agencies raised the issue of traffic impacts related to the
25 Goal 3 issue of whether land is necessary to permit farm practices
26 to be undertaken on nearby lands. Traffic issues are not, however, a
27 relevant consideration in addressing this issue because Goal 3 aslcs
28 whether the `land' to be rezoned, the subject property, is needed by
29 area farms to conduct farm practices on their properties.
30 Additionally, the record supports the finding that the small amount
31 of traffic associated with the proposed change will not prevent farm
32 practices associated with area farm uses of growing hay and grazing
33 livestock from occurring in the area." Record 29 (emphasis added).
Page 53
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Accordingly, the board of commissioners concluded that the subject property is
not necessary to permit farm practices on adjacent or nearby lands.
1. Preservation of Agricultural Land in Large Blocks
In the first subassignment of error under its first assignment of error, 1000
Friends argues that the board of commissioners misconstrued OAR 660-033-
0020(1)(a)(C) in concluding that the subject property is not necessary to permit
farm practices on adjacent or nearby lands because the challenged PAPA will
create an "island" of nonresource land within a large block of agricultural land.
1000 Friends observes that the agricultural policy of the state includes the
following:
"The preservation of a maximum amount of the limited supply of
agricultural land is necessary to the conservation of the state's
economic resources and the preservation of .such land in large
blocks is necessary in maintaining the agricultural economy of the
state and for the assurance of adequate, healthful and nutritious food
for the people of this state and nation." ORS 215.243(2) (emphasis
added).
1000 Friends also observes that OAR chapter 660, division 33, implements ORS
19 215.243. OAR 660-033-0010. Accordingly, 1000 Friends argues that the
20
21
22
23
24
language of ORS 215.243(2) informs whether land is "necessary" to permit farm
practices on adjacent or nearby lands under OAR 660-033-0020(1)(a)(C).
Specifically, 1000 Friends argues that land is "necessary" to permit farm
practices on adjacent or nearby lands, under OAR 660-033-0020(1)(a)(C), if it is
necessary that the land be considered agricultural land in order to preserve a
Page 54
I "large block" of such land. In other words, if redesignating and rezoning land
2 from agricultural to nonresource would result in a "river" or "lake" of
3 nonresource land in an otherwise "large block" of agricultural land, then the land
4 proposed for redesignation and rezoning is "necessary" to permit farm practices
5 on adjacent or nearby lands under OAR 660-033-0020(1)(a)(C). 1000 Friends
6 argues that the subject property is located within such a "large block" of
7 agricultural land (i.e., the surrounding EFU-zoned lands), that the challenged
8 PAPA will create an "island" of nonresource land therein, and that the board of
9 commissioners therefore erred in concluding that the subject property is not
10 "agricultural land" under OAR 660-033-0020(1)(a)(C).
11 Thomas responds that this issue is waived because no party raised it below.
12 In its petition for review, 1000 Friends identifies its first assignme=zt of error as
13 having been preserved in approximately 50 pages of applicant and opponent
14 testimony. LUBA will not search the record or large page ranges cited in the
15 petition for review to determine whether an issue was raised below. H2D2
16 Properties, LLC v. Deschutes County, 80 Or LUBA 528, 532-33 (2019). A
17 citation to 50 pages in the record is not sufficiently specific to establish that an
18 issue was preserved. A petitioner must quote or point to a specific page, passage,
19 or portion of an audio recording to demonstrate where an issue was raised in the
20 local proceedings. Accordingly, the issue is waived.
21 The first subassignment of error under 1000 Friends' first assignment of
22 error is denied.
Page 5 5
1 2. Traffic Impacts
2 Again, for purposes of Goal 3, "agricultural land" includes "[I]and that is
3 necessary to permit farm practices to be undertaken on adjacent or nearby
4 agricultural lands." OAR 660-033-0020(1)(a)(C). Again, in addressing OAR
5 660-033-0020(1)(a)(C), the state agency letter argued that it was not clear how
6 water, traffic, nuisance, and trespass impacts under the new RR-10 zoning would
7 impact area farming operations. The hearings officer found, "[T]here is no
8 showing that the subject property is necessary for farming practices on any
9 surrounding agricultural lands. There is no evidence that the subject propero)
10 contributes to any such practices, nor that other lands depend on use of the
11 subject propero) to undertake any farm practices." Record 75 (emphases added).
12 The board of commissioners found:
13 "The State agencies raised the issue of traffic impacts related to the
14 Goal 3 issue of whether land is necessary to permit farm practices
15 to be undertaken on nearby lands. Traffic issues are not, however, a
16 relevant consideration in addressing this issue because Goal 3 asks
17 whether the `land' to be rezoned, the subject property, is needed by
18 area farms to conduct farm practices on their properties.
19 Additionally, the record supports the finding that the small amount
20 of traffic associated with the proposed change will not prevent farm
21 practices associated with area farm uses of growing hay and grazing
22 livestock from occurring in the area." Record 29 (emphasis added).
23 In the second subassignment of error under its first assignment of error,
24 1000 Friends argues that the county misconstrued OAR 660-033-0020(1)(a)(C)
25 in concluding that land is necessary to permit farm practices on adjacent or
26 nearby lands, under OAR 660-033-0020(1)(a)(C), only if the land actively
Page 56
I "contributes" to such practices or if other lands "depend on use of' the land to
2 engage in such practices. 1000 Friends argues that land is also necessary to permit
3 farm practices on adjacent or nearby lands if the impacts from nonresource use
4 of the land would prevent farm practices on adjacent or nearby lands.
5 Accordingly, 1000 Friends argues that the board of commissioners erred in
6 concluding that traffic impacts are not a relevant consideration.
7 Thomas responds that the county did not misconstrue OAR 660-033-
8 0020(l)(a)(C). Thomas defends the county's conclusion that OAR 660-033-
9 0020(1)(a)(C) asks whether the land itself is necessary to permit farm practices
10 on adjacent or nearby lands, not whether the land's aga°icultural designation. and
11 zoning, and the consequent lack of impacts, are necessary to permit farm practices
12 on adjacent or nearby lands.
13 In Wether-ell, the county redesignated and rezoned the subject property
14 from resource to rural residential. In doing so, the county concluded that the
15 subject property was not necessary to permit farm practices on adjacent or nearby
16 lands under OAR 660-033-0020(1)(a)(C). In a portion of their first assignment
17 of error, the petitioners argued that, "if the subject property's plan and zoning
18 designations [were] amended to allow the proposed 32 rural residential
19 dwellings, the ensuing conflicts between residential uses and adjacent and nearby
20 farm practices [would] hinder or prevent those practices." 50 Or LUBA at 190-
21 91. We explained that, in order to be "agricultural land" under OAR 660-033-
22 0020(1)(a)(C), "there must be sofne connection between the subject pr-operty and
Page 57
I adjacent or nearby farna practices, such that the subject properoJ must remain as
2 `agricultural land' in order to permit such practices on other lands to be
3 undertaken." Id.. at 191 (emphasis added). In Wetherell, "[t]he county found no
4 evidence of any connection between the subject property and adjacent or nearby
5 farm practices, or that the subject property must remain as `agricultural land' in
6 order to permit such practices to be undertaken." Id. (emphasis added). In
7 addition, the intervenor pointed out that ORS 30.936, the right to farm statute,
8 made it more unlikely that conflicts from rural residential uses could rise to such
9 a level that the subject property would be required to remain as agricultural land
10 in order to permit farm practices on other land.
ORS 30.936 provides:
"(1) No farming or forest practice on lands zoned for farm or forest
use shall give rise to any private right of action or claim for
relief based on nuisance or trespass.
"(2) Subsection (1) of this section shall not apply to a right of
action or claim for relief for:
"(a) Damage to commercial agricultural products; or
"(b) Death or serious physical injury as defined in ORS
161.015.
"(3) Subsection (1) of this section applies regardless of whether
the farming or forest practice has undergone any change or
interruption."
Page 58
I We also considered OAR 660-033-0020(1)(a)(C) in Walker v. Josephine
2 County, 60 Or LUBA 186 (2009). In Walker, we considered whether "resource
3 use of the subject property [was] necessary to permit the farm and forest practices
4 on nearby BLM land, including operation of the BLM's seed orchard," and we
5 explained that "[t]he possibility that certain potential uses might cause some
6 conflicts with the existing farm and forest uses [did] not demonstrate that the
7 subject property [was] necessary for continued farm and forest operations." 60
8 Or LUBA at 192-93 (emphasis added).
9 Although it is a close call, consistent with our decisions in Wetherell and
10 Walker, we agree with 1000 Friends that OAR 660-033-0020(1)(a)(C) asks not
11 only whether the land itself is necessary to permit farm practices on adjacent or
_ a �; ...., ,., A
12 nearby 'lands but, also, whether the ianu 5 resoui�e uCsigii��loi� ail« zo;~�ii�g, —4
13 the presumed lack of impacts or conflicts with farming on adjacent or nearby
14 lands, are necessary to permit farm practices on adjacent or nearby lands.
15 Although "necessary" is a high standard, and some conflicts may be allowed, we
16 agree with 1000 Friends that the board of commissioners erred in concluding that
17 traffic impacts are not a relevant consideration.
18 We observe, however, that the board of commissioners found, apparently
19 in the alternative, that "the record supports the finding that the small amount of
20 traffic associated with the proposed change will not prevent farm practices
21 associated with area farm uses of growing hay and grazing livestock from
22 occurring in the area." Record 29. 1000 Friends argues that those findings are
Page 59
I inadequate in the third subassignment of error under its first assignment of error,
2 which we address below.
3 The second subassign-inent of error under 1000 Friends' first assignment
4 of error is denied.
5 3. Findings
6 In the third subassignment of error under its first assignment of error, 1000
7 Friends argues that the county's findings that the subject property is not necessary
8 to permit farm practices on adjacent or nearby lands under OAR 660-033-
9 0020(1)(a)(C) are inadequate. We have explained that, "[w]hen the decision does
10 not describe adjacent or nearby agricultural use, it does not demonstrate that the
11 property is not necessary to permit adjacent and nearby farm practices to
1 +: .. » i�T s7 ,77 Tl„„ l ,c �.,,,,,t� �7 (l,• T T TR (, 17 CiS i l)l1f1(,l (r.ifina
1G continue." Y-ethe e/1 V. L0,upl o vvusx��, ✓L v. I T MA v y
13 Kaye/DLCD v. Marion County, 23 Or LUBA 452, 461-62 (1992)). 1000 Friends
14 argues that the county's findings do not identify the surrounding farm practices
15 or explain whether those practices would be prevented by traffic impacts
16 resulting from the challenged PAPA. 1000 Friends also argues that, although the
17 state agency letter raised the issue of water, traffic, nuisance, and trespass impacts
18 under the new RR-10 zoning, the county's findings related to OAR 660-033-
19 0020(1)(a)(C) do not address water, nuisance, or trespass impacts at all. 1000
20 Friends argues that the county impermissibly shifted the burden to opponents to
21 demonstrate that the subject property is necessary to permit farm practices on
22 adjacent or nearby lands, rather than requiring 710 Properties to demonstrate that
I the subject property is not necessary to permit farm practices on adjacent or
2 nearby lands. Finally, 1000 Friends observes that the county found that
3 "Ci]mpacts of future development must be reviewed when land use applications
4 are submitted." Record 75. 1000 Friends argues that the county may not defer a
5 finding of compliance with OAR 660-033-0020(1)(a)(C) until after the land is
6 redesignated and rezoned.
7 Thomas responds that the county did not shift the burden to opponents to
8 demonstrate that the subject property is necessary to permit farm practices on
9 adjacent or nearby lands. Thomas observes that 710 Properties provided four
10 tables (one for each cardinal direction) listing the surrounding EFU-zoned
11 properties, listing their current uses, listing their potential farm practices, and
12 explaining why none of them needed the subject property in order to conduct
13 those farm practices. Record 4646-48. Thomas observes that the county expressly
14 relied on those tables (and reproduced them in its findings) in concluding that the
15 subject property is not necessary to permit farm practices on adjacent or nearby
16 lands. Record 97-100.
17 We agree with Thomas that the county did not shift the burden to
18 opponents and that the findings do identify the surrounding farm practices.
19 However, we agree with 1000 Friends that the findings are inadequate. As
20 explained above, OAR 660-033-0020(l)(a)(C) requires an evaluation of the
21 impacts that redesignating and rezoning land from agricultural to nonresource
22 will have on adjacent or nearby lands and a determination of whether those
Page 61
I impacts will prevent farm practices on those lands. The county may not defer
2 such a determination until after the land is redesignated and rezoned. The findings
3 do not address water, nuisance, or trespass impacts, despite the fact that the state
4 agency letter raised those issues. And while the board of commissioners
5 concluded that traffic impacts would not prevent farm practices on adjacent or
6 nearby lands, the findings do not set out the facts which the board of
7 commissioners believed. and relied upon or explain how those facts led to the
8 board of commissioners' conclusion. Thomas observes that 710 Properties
9 submitted water and traffic analyses into the record. However, the findings
10 related to (BAR 660-033-0020(1)(a)(C) do not refer to those analyses, and we will
11 not assume that the board of commissioners relied on theirs.
i 2 T ire third Si�bassrginri ent of error' 'Under' 1000 Friends' fi:'st assrgnrnent of
13 error is sustained.
14 1000 Friends' first assignment of error is sustained, in part.
15 MISCELLANEOUS ASSIGNMENTS OF ERROR
16 A. ORS 215.788 and ]DCCP Provisions
17 Deschutes County Comprehensive Plan (DCCP) Section. 2.2 provides, in
18 part:
19 "[House Bill (HB) 2229 (2009)] authorize[s] counties to reevaluate
20 resource lands and amend their comprehensive plan designations for
21 such lands consistent with definitions of `agricultural land' and
22 `forest land.' * * * Anything that does not qualify as farmland or
23 forestland may be rezoned for non -resource use, subject to
24 conditions that development in the non -resource zones be rural in
Page 62
I character, not significantly conflict with surrounding farm and forest
2 practices, and not have adverse [effects] on such things as water
3 quality, wildlife habitat, and fire safety. County rezoning activities
4 must be pursuant to a work plan approved by [DLCD]. This
5 effectively means the work will be done similar to periodic review
6 with the [LCDC] expressly given exclusive jurisdiction to review a
7 county decision."
8 HB 2229 was codified, in relevant part, at ORS 215.788. Or Laws 2009, ch 873,
9 § 5. ORS 215.788 provides:
10 "(1) For the purposes of correcting mapping errors made in the
11 acknowledgment process and updating the designation of
12 farmlands and forestlands for land use planning, a county may
13 conduct a legislative review of lands in the county to
14 determine whether the lands planned and zoned for farm use,
15 forest use or mixed farm and forest use are consistent with the
16 definitions of `agricultural lands' or `forest lands' in goals
17 relating to agricultural lands or forestlands.
18 "(2) A county may undertake the reacknowledgment process
19 authorized by this section only if [DLCD] approves a work
20 plan, from the county, describing the expected scope of
21 reacknowledgment. [DLCD] may condition approval of a
22 work plan for reacknowledgment under this section to reflect
23 the resources needed to complete the review required by ORS
24 197.659 and 215,794. The work plan of the county and the
25 approval of [DLCD] are not final orders for purposes of
26 review.
27 "(3) A county that undertakes the reacknowledgment process
28 authorized by this section shall provide an opportunity for all
29 lands planned for farm use, forest use or mixed farm and
30 forest use and all lands subject to an exception under ORS
31 197.732 to a goal relating to agricultural lands or forestlands
32 to be included in the review.
33 "(4) A county must plan and zone land reviewed under this
34 section:
Page 63
I "(a) For farm use if the land meets the definition of
2 `agricultural land' in a goal relating to agricultural
3 lands;
4 "(b) For forest use if the land meets the definition of "forest
5 land" used for comprehensive plan amendments in the
6 goal relating to forestlands;
7 "(c) For mixed farm and forest use if the land meets both
8 definitions;
9 "(d) For nonresource use, consistent with ORS 215.794, if
10 the land does not meet either definition; or
11 "(e) For a use other than farm use or forest use as provided
12 in a goal relating to land use planning process and
13 policy framework and subject to an exception to the
14 appropriate goals under ORS 197.732 (2).
15 "(5) A county may consider the current land use pattern on
16 adjacent and nearby lands in determining whether land meets
17 the annropriato definition."
18 DCCP Policy 2.2.2 provides, "[EFU] sub -zones shall remain as described
19 in the 1992 Farm Study * * * unless adequate legal findings for amending the
20 sub -zones are adopted or an individual parcel is rezoned as allowed by Policy
21 2.2.3." In turn, DCCP Policy 2.2.3 is to "[a]llow comprehensive plan and zoning
22 map amendments, including for those that qualify as non -resource land, for
23 individual EFU parcels as allowed by State Statute, Oregon Administrative Rules
24 and this Comprehensive Plan."
25 The first subassignment of error under COLW's second assignment of
26 error and 1000 Friends' second assignment of error are that the board of
27 commissioners misconstrued ORS 215.788 and DCCP Policy 2.2.3 in concluding
Page 64
I that it could redesignate and rezone individual properties from agricultural to
2 nonresource in a quasi-judicial process. COLW and 1000 Friends argue that the
3 redesignation and rezoning of land from agricultural to nonresource is authorized
4 only pursuant to the legislative process set out at ORS 215.788, which requires,
5 among other things, a DLCD-approved work plan. COLW observes that DCCP
6 Section 2.2 expressly refers to HB 2229 and that, in a 2015 letter to the county,
7 DLCD interpreted ORS 215.788 as authorizing counties to redesignate and
8 rezone geographic areas, not individual properties." Record 1575-77. Because
9 the county did not follow the process set out in ORS 215.788, and because it
10 redesignated and rezoned only the subject property, COLW and 1000 Friends
11 argue that the county exceeded its authority.
10 In addition, COLW observes that, in a 2019 letter to the county, DLCD
explained:
"State rule does not provide an opportunity to designate lands as
nonresource if the land meets the agricultural capability class or
forest productivity thresholds in the state's `agricultural lands' and
`forest lands' definitions. A Goal 3 or 4 exception, rather than
nonprime resource land designation, appears to be required to
designate these lands for low intensity rural development." Record
1547.
As explained above, the county did not err in relying on the site -specific soils
assessment to conclude that the subject property is not predominantly Class 1 to
6 soils and, therefore, not "agricultural land" under OAR 660-033-0020(1)(a)(A).
The 2019 letter does not assist COLW.
Page 65
I Thomas responds that, while COLW argued below that the county was
2 required to follow the process set out in ORS 215.788, COLW did not argue
3 below that the county was not authorized to redesignate and rezone individual
4 properties. Accordingly, Thomas argues that that issue is waived. COLW
5 observes that it argued below that "[i]t is inconsistent with the legislature's intent
6 in adopting HB 2229 for a county to enact a nonresource plan amendment for a
7 specific area, rather there must be an opportunity for all farm and. forest lands to
8 be considered." Record 1008. We conclude that the county and the parties had
9 fair notice and an adequate opportunity to respond to COLW's argument that the
10 county was not authorized to redesignate and rezone individual properties.
11 Accordingly, the issue is not waived. l 1
1 (i 2 •�'n f N 1Y1 lln C'. t'll1Yl A[ +1,.�' •T!Y'It�� ORS
/ 1 5 88 /1gjfA I-
I /7 C+ /Y
/_ On thy. merits, rholllas 'ieapon.uo WAUL, vv li7ii1 v v /.i✓.I"U LILIII II/I Ize 4L
13 count}) to conduct a legislative review of the lands in the county in order to correct
14 mapping errors made in the acknowledgment process, the statute does not prevent
15 a property owner from applying with the county to redesignate and rezone their
16 individual property through a quasi judicial process. Thomas observes that ORS
17 215.211, which allows counties to use site -specific soils assessments in
18 determining whether land is agricultural land, was enacted after ORS 215.788
19 and that OAR 660-033-0030(5), which implements ORS 215.211, provides, in
20 part, that it applies to "[a] change to the designation of a lot or parcel planned
21 and zoned for exclusive farm use, forest use or mixed farm -forest use to a non-
22 resource plan designation and zone on the basis that such land is not agricultural
Page 66
I land." OAR 660-033-0030(5)(c)(A) (emphasis added). Thomas observes that
2 DCCP Policies 2.2.2 and 2.2.3 expressly refer to the redesignation and rezoning
3 of "individual" properties. Thomas argues that DLCD's 2015 letter is consistent
4 with the argument that, while counties cannot limit the scope of the legislative
5 review authorized by ORS 215.788 to individual properties, they can limit the
6 scope of quasi-judicial proceedings conducted in response to applications from
7 individual property owners. Because the challenged PAPA resulted from a quasi-
8 judicial proceeding conducted in response to 710 Properties' application, Thomas
9 argues that the board of commissioners did not err in failing to follow the process
10 set out in ORS 215.788 or in redesignating and rezoning only the subject
11 property.
.� ,i r � A T ��n nnn
12 1000 Friends argues, and we agree, that the references in OAR- 660-0-3.3-
13 0030(5)(c)(A) and DCCP Policies 2.2.2 and 2.2.3 to "a lot or parcel" and
14 "individual" properties do not necessarily support Thomas' position. Even in a
15 legislative review that considers a geographic area rather than individual
16 properties, the end result may be that individual properties are redesignated or
17 rezoned. Under OAR 660-033-0030(5)(c)(A), a property owner could submit a
18 site -specific soils assessment in response to a county -initiated legislative review
19 in which the owner's property is one of many under consideration for
20 redesignation or rezoning. The site -specific soils assessment would then serve
21 the purpose of assisting the county in determining whether and how to
Page 67
I redesignate and rezone the owner's individual property, but it would not be used
2 in a quasi-judicial proceeding.
3 Nevertheless, we agree with Thomas that the board of commissioners did
4 not err in failing to follow the process set out in ORS 215.788 or in redesignating
5 and rezoning only the subject property. ORS 215.788 authorizes counties to
6 conduct legislative reviews of geographic areas, and it prescribes the process that
7 counties must follow in conducting those reviews. However, that statute does not
8 prohibit counties from considering applications to redesignate and rezone
9 individual properties in quasi-judicial proceedings. COLW's argument inserts
10 into the statute what has been omitted, contrary to ORS 174.010. See n 6. The
11 board of commissioners did not misconstrue ORS,
RS 215.788 or exceed its authority{
II dp n4 Yt O"A YPhnt7YYtfr !IY I7T IY7P Glli\/A!i property Ytl 7 (i7 QQ1 _llll ll�l at
L.L 11L LV e.�.1gLLCt I.Ailg U.11U 1VL..V11111� VAlLJ 1.11V 'subject, VJ VVl. F VF.J LJ' 111 N i "VI J`'` 1V1 1
13 process.' � The board of commissioners did not misconstrue DCCP Policy 2.2.3
' f Like the reference to HB 2229, in DCCP Section 2.2, COLW maintains that
the reference to the year 2010 in DCCP Section 3.3 means that DCCP Policies
2.2.2 and 2.2.3 authorize the redesignation and rezoning of land only pursuant to
ORS 215.788. DCCP Section 3.3 provides, in part:
"As of2010 any new [RREAs] need to be justified through initiating
a non -resource plan amendment and zone change by demonstrating
the property does not meet the definition of agricultural or forest
land, or taking exceptions to farm, forest, public facilities and
services and urbanization regulations, and follow guidelines set out
in the OAR."
Page 68
I in concluding that it could redesignate and rezone individual properties in a quasi-
2 judicial process.
3 The first subassignment of error under COLW's second assignment of
4 error and 1000 Friends' second assignment of error are denied.
5 B. DCC 18.136.020(C)(2) and DCCP Agricultural Lands Goal 1
6 DCC 18.136,020 governs zone changes and provides, in part:
7 "The applicant for a quasi-judicial rezoning must establish that the
8 public interest is best served by rezoning the property. Factors to be
9 demonstrated by the applicant are:
10 «*****
11 "C. That changing the zoning will presently serve the public
12 health, safety and welfare considering the following factors:
14 1'2. The impacts on surrounding land use will be consistent
15 with the specific goals and policies contained within
16 the Comprehensive Plan."
17 DCCP Agricultural Lands Goal 1 is to "[p]reserve and maintain agricultural lands
18 and the agricultural industry."
While 2010 is the year after HB 2229 was enacted, it is also the year before
the current version of the DCCP was adopted, and we observe that many DCCP
provisions refer to that year. See, e.g., DCCP Section 2.2 ("As of 2010 the district
manages approximately 65 miles of canals, ditches and pipes in an area of
approximately 18,560 acres."); DCCP Section 2.4 ("The complete acknowledged
Goal 5 inventory lists as of 2010 can be found in Chapter 5."); DCCP Section 2.5
("As of 2010 the DEQ is leading the effort to address nitrates in South County,
with the full cooperation of the County.").
Page 69
I Addressing DCC 18.136.020(C)(2), the county found:
2 "[710 Properties] provided the following response in the submitted
3 burden of proof statement:
4 "`The RR- 10 zoning is consistent with the specific goals and
5 policies in the comprehensive plan as shown by the discussion
6 of plan policies above. The existing EFU zoning and
7 comprehensive plan already support development of the
8 subject properly with a number of nonfarm dwellings because
9 the property is generally unsuitable for farm or forest uses.
10 The property is comprised of nine lots of record that could
11 qualify for development with up to approximately 24
12 dwellings including an existing nonfarm dwelling and two
13 approved nonfarm dwellings. The RR-10 zoning will allow
14 more dwellings to be built on the subject property but the
15 impacts imposed will be the same as the minimal impacts
16 imposed by a nonfarm dwelling.
17 "`The only adjoining land in farm use is Volwood Farms. It
18 is located to the west of the subject property. Most of this farm
19 property is located far below the subject property. This
20 geographical separation will snake it unlikely that the rezone
21 will impose new or different impacts on Volwood Farms than
22 imposed on it by existing farm and nonfarm dwellings. There
23 are other° ,farms in the surrounding area but all, life the
24 Volwood Farms property, are fianctionally separated f om the
25 subject property by the steep hillside and rocky ridges of the
26 subject property. Farm uses in the greater area, also, are
27 occurring on properties that have been developed with
28 residences. These properties are, however, separated from
29 the subject property by a sufficient distance that RR-10
30 development will not adversely impact area farm uses or
31 lands.'
32 "In addition to these comments, [710 Properties] provided specific
33 findings for each relevant Comprehensive Plan goal and policy,
34 which are addressed below. * * * [T]he impacts of reclassification
Page 70
I of the subject property to R.R 10 on surrounding land use will be
2 consistent withh the specific goals and policies contained within. the
3 Comprehensive Planfor the reasons set forth in the Comprehensive
4 Plan section of this Decision and Recommendation. This criterion is
5 met." Record 84 (emphases added).
6 Addressing DCCP Agricultural Lands Goal 1, the county found:
7 "[S]ubstantial evidence in the record supports a finding that the
8 subject property is not `agricultural land,' and is not land that could
9 be used in conjunction with adjacent property for agricultural uses.
10 There is no evidence that the requested plan amendment and rezone
11 will contribute to loss of agricultural land in the surrounding
12 vicinity. * * * [T]he agricultural industry will not be negatively
13 impacted by re -designation and rezoning of the subject property.
14 Therefore, * * * the applications are consistent with [DCCP
15 Agricultural Lands] Goal 1, `preserve and maintain agricultural
16 lands and the agricultural industry."' Record 86 (emphasis added).
17 In its second assignment of error, Redside argues that the county's findings
18 that the impacts on surrounding land use from rezoning the subj ect property from
19 EFUTE to RR-10 will be consistent with DCCP Agricultural Lands Goal 1 are
20 inadequate and not supported by substantial evidence. Redside argues that, while
21 24 dwellings are allowed on the subject property under the existing EFUTE
22 zoning, 71 dwellings will be allowed under the new RR-10 zoning. Redside
23 argues that the county's findings that the increase fiom 24 to 71 dwellings will
24 have no greater impacts on surrounding agricultural lands and the agricultural
25 industry are inadequate and not supported by substantial evidence. Redside
26 observes that "47 additional dwellings will mean 47 more exempt water wells,
27 47 more septic systems, 470 more vehicle trips on the rural road system, etc."
28 Redside's Intervenor -Petitioner's Brief 29. Redside also argues that the findings
Page 71
I that the zone change will not adversely impact surrounding agricultural lands
2 because those lands are "separated from the subject property by a sufficient
3 distance" are inadequate and not supported by substantial evidence because those
4 findings do not explain what those distances are and why they are sufficient.
5 Record 84. In addition, Redside argues that the findings fail to address
6 surrounding nonresource lands at all.
7 Thomas responds that this issue is waived because no party raised it below.
8 While it may be true that no party specifically cited DCC 18.136.020(C)(2) or
9 DCCP Agricultural Lands Goal 1 in their testimony, Redside observes that a
10 number of witnesses, including itself, testified that the new RR-10 zoning might
11 be incompatible with surrounding agricultural lands and the agricultural industry
I Zl ],, to +b , 1 , .� ��c>lr.r.�nra tic water, wastewater and traffic i:npa�ts. ,Cvo�
1G duc o ILiG Aesl J 111r,uevv vj✓laiv i� .� r i r uu�v aw
13 e.g., Record 1432 ("[W]hat would the cumulative impacts of additional
14 residential water use be to water supply for area irrigated agriculture in the
15 region? * * What would be the traffic implications?"). We conclude that the
16 county and the parties had fair notice and an adequate opportunity to respond to
17 the argument that the impacts from the zone change would not preserve and
18 maintain surrounding agricultural lands and the agricultural industry.
19 Accordingly, the issue is not waived.
20 On the merits, Thomas responds that DCCP Agricultural Lands Goal 1 is
21 concerned only with surrounding agricultural lands and the agricultural
22 industry. Accordingly, Thomas argues that the findings are not inadequate for
Page 72
I failing to address surrounding nonresource lands. Thomas also observes that the
2 county found that the impacts from the zone change will not adversely impact
3 surrounding agricultural lands because the subject property is located on a plateau
4 that "functionally" separates it from those lands. Record 84. In addition, Thomas
5 argues that DCC 18.136.020(C)(2) and DCCP Agricultural Lands Goal 1 do not
6 prohibit zone changes from having adverse impacts on surrounding agricultural
7 lands but, rather, require that zone changes preserve and maintain surrounding
8 agricultural lands. In other words, Thomas argues that those provisions allow
9 zone changes to have adverse impacts on surrounding agricultural lands as long
10 as they do not result in a loss of surrounding agricultural lands.
11 We agree with Thomas that the findings are not inadequate for failing to
12 address surrounding nonresource lands. 'However, we agree with Bedside that the
13 findings that the increase from 24 to 71 dwellings will have no greater water,
14 wastewater, or traffic impacts on surrounding agricultural lands and the
15 agricultural industry, and the findings relying on the distance between the subject
16 property and surrounding agricultural lands, are inadequate. While the fact that
17 the subject property is located on a plateau might mitigate some impacts on
18 surrounding agricultural lands and the agricultural industry, it is not clear how
19 that fact will mitigate any water, wastewater, or traffic impacts. 12 The county
12 We observe that the findings do address testimony concerning water,
wastewater, and traffic in the context of other criteria. See, e.g., Record 82-83
Page 73
I must consider the evidence of impacts on surrounding agricultural lands vis-a-
2 vis water, wastewater, and traffic.
3 Redside's second assignment of error is sustained.
4 GOAL 14 ASSIGNMENTS OF ERROR
5 Goal 14 is "[tjo provide for an orderly and efficient transition from rural
6 to urban land use, to accommodate urban population and urban employment
7 inside [UGBs], to ensure efficient use of land, and to provide for livable
8 communities." 1000 Friends' third and fourth assignments of error and the second
9 subassignment of error under COLW's second assignment of error are that the
10 challenged PAPA violates Goal 14.
11 Goal 14 generally prohibits urban use of rural land, that is, land outside
1 I T7/-n Ion61 )7',;"x4� 7v ,,in,e..„. „ rnnC �r�� J�l y r��,�, 301 Or 447, 724 P2.d 2.68
1G tJVlJs. ,[ V A 11--rit4o of v, c.�v I1. r. vL
1.3 (1986). In Curry Co., the Supreme Court explained that, if a decision affecting
14 rural land outside a UGB is challenged as allowing an Cuban use in violation of
15 Goal 14, a local government may do one of three things. The local government
16 may (1) establish that the decision does not offend Goal 14 by demonstrating that
17 the proposed use is rural and not urban. Differently, if the local government
18 determines that a proposed use is an urban use, then the local government may
(addressing water and wastewater in the context of DCC 18.136.020(C)(1),
which concerns "[t]he availability and efficiency of providing necessary public
services and facilities"). However, we will not assume that those findings are
responsive to the requirements of DCC 18.136.020(C)(2) and DCCP Agricultural
Lands Policy 1.
Page 74
I either (2) comply with the Goal 14 by including the subject site within a UGB or
2 (3) adopt an exception to Goal 14.13 Curry Co., 301 Or at 477. Proceeding under
3 option (1), the board of commissioners concluded that the amendment does not
4 allow urban uses on rural land. The board of commissioners found:
5 "The Plan states that `[e]ach Comprehensive Plan map designation
6 provides the land use framework for establishing zoning districts.
7 Zoning defines in detail what uses are allowed for each area.' DCCP
8 Section 1.3, p. 15. [RREAs], according to the DCCP, `provide
9 opportunities for rural residential living outside urban growth
10 boundaries and unincorporated communities * * *.' DCCP Section
11 1.3, p. 15. DCCP Table 1.3.3 provides that Title 18's RR-10 and
12 [Multiple Use Agricultural - 10 Acre Minimum (MUA-10)] are the
13 `associated Deschutes County Zoning Code[s]' for the RREA plan
14 designation.
15 "The determination that the RREA plan designations and RR-10 and
T T 1 o ristricts a „l.a nl� f non-agr lllttl al lands was
1.0 �v'1Ti�A-�v zoning u�J���. �� �hou�u apPl,� o x.... ��,..c rw_ a__��
17 made when the County amended the DCCP in 2016. Ordinance
18 2016-005. That ordinance was acknowledged by DLCD as
19 complying with the Statewide Goals. This means that the lot sizes
20 and uses allowed by the RREA plan designation and RR-10 zone are
21 Goal 14 compliant. The proposed Comprehensive Plan Amendment
13 Considerations for determining whether a particular use is urban or rural
derive from our decision in Shaffer v. Jackson County:
"Under the Supreme Court's decision in [Curry Co.], it may well be
there is nothing inherently rural or urban about residential,
commercial, industrial or other types of uses. Rather there are
merely a number of relevant factors to be considered, such as parcel
size, intensity of use, necessity for urban facilities and proximity to
a UGB." 17 Or LUBA 922, 928 (1989) (citation omitted; emphasis
added).
Page 75
I simply acts in accordance with the DCCP provisions. It provides no
2 occasion for the County to revisit the issue of whether the RR-10
3 zone and RREA designation isolate Goal 14 by allowing urban
4 development." Record 31-3 2.
5 A. Acknowledgment of the 2016 Amendments
6 In its fourth assignment of error, 1000 Friends argues that the board of
7 commissioners erred in relying on DLCD's acknowledgement of the 2016
8 amendments to conclude (1) that the RREA plan designation and RR-10 zone
9 facially do not allow urban uses of rural land and (2) that it was therefore not
10 necessary to apply the Shaffer factors to determine whether the RREA plan
11 designation and RR-10 zone allow urban uses of rural land as applied to the
12 subject property.
13 Prior to 2016, DCCP Section 3.3 provided, in part, "As of 2010 any new
14 [RREAs] need to be justified through taking exceptions to farm, forest, public
15 facilities and services and urbanization regulations, and follow guidelines set out
16 in the OAR." That provision allowed RREA designation and RR-10 zoning only
17 of lands for which Goal 3, 4, 11, and 14 exceptions had been taken. In 2016, the
18 county amended that provision by adding the following italicized language:
19 "As of 2010 any new [RREAs] need to be justified through initiating
20 a non -resource plan amendment and zone change by demonstrating
21 the property does not meet the definition of agricultural or forest
22 land, or taking exceptions to farm, forest, public facilities and
23 services and urbanization regulations, and follow guidelines set out
24 in the OAR." Ordinance 2016-005 Ex C, at 1.
25 In addition to lands for which Goal 3, 4, 11, and 14 exceptions have been taken,
26 the 2016 amendments allow RREA designation and RR-10 zoning of all
Page 76
I nonresource lands, including lands that are not "agricultural land" for purposes
2 of Goal 3. The 2016 amendments were not appealed to LUBA and, accordingly,
3 they are "deemed to be acknowledged" by DLCD. ORS 197.625(1)(a).
4 The board of commissioners concluded that the subject property is not
5 "agricultural land" for purposes of Goal 3." Because the 2016 amendments were
6 acknowledged by DLCD as complying with the statewide planning goals,
7 including Goal 14, the board of commissioners concluded that the RREA plan
8 designation and RR-10 zone facially do not allow urban uses of rural land. In
9 turn, the board of commissioners concluded that the challenged PAPA also does
10 not allow urban uses of rural land and, therefore, complies with Goal_ 14. 1000
11 Friends argues that, in acknowledging the 2016 amendments, DLCD did not
12 acknowledge RREA designation of nonresource 'lands as facially complying with
13 Goal 14. 1000 Friends observes that, before the 2016 amendments, the RREA
14 plan designation could be applied only to lands for which Goal 3, 4, 11, and 14
15 exceptions had been taken pursuant to Statewide Planning Goal 2 (Land Use
16 Planning). 1000 Friends argues that, just as applying the RREA plan designation
17 to lands for which Goal 3, 4, 11, and 14 exceptions have been taken requires a
18 site -specific analysis for compliance with Goal 2, applying the RREA plan
E4 That conclusion is challenged in the parties' Goal 3 assignments of error,
which we address above.
Page 77
I designation to nonresource lands requires a site -specific analysis for compliance
2 with Goal 14.
3 1000 Friends also argues that, in acknowledging the 2016 amendments,
4 DLCD did not acknowledge RR-10 zoning of nonresource lands as facially
5 complying with Goal 14. 1000 Friends argues that the 2016 amendments
6 concerned only RREA designation of nonresource lands, observes that the 2016
7 amendments did not make any changes to or include any mention of the RR-10
8 zone, and observes that DCC chapter 18.60, which governs the RR-10 zone, does
9 not include any mention of nonresource lands.
10 DCCP Policy 2.2.3 is to "[a]llow comprehensive plan and zoning map
11 amendments, including for those that qualify as non -resource land, for individual
%11017 r�� -are-Is �r allowed by State Statiute.� Orecron Ad iniOrntive. Rules and this
L d.-iA-are-Is aL llv
13 Comprehensive Plan." 1000 Friends argues that rural residential development
14 may be allowed only pursuant to one of two administrative rules: OAR 660-004-
15 0040, which specifies how Goal 14 applies to resource lands for which a Goal 3
16 or 4 exception has already been taken, or OAR 660-014-0040, which governs
17 Goal 14 exceptions to allow new urban development on undeveloped rural land.
18 1000 Friends observes that both of those rules require site -specific analyses. 1000
19 Friends further argues that DLCD would have also relied on DCCP Section 3.2,
20 and the RREA plan designation's historical exception context to ensure that
21 RREA designation of nonresource lands would require a site -specific analysis for
22 compliance with Goal 14.
Page 78
1 Turner responds that this issue is waived because no party raised it below.
2 In its petition for review, 1000 Friends identifies its fourth assignment of error as
3 having been preserved in an August 17, 2022, letter that it submitted into the
4 record. and an August 31, 2022, letter that COLW submitted into the record.
5 Record 994-97, 1630. We have reviewed the cited pages, and both 1000 Friends
6 and COLW argued below that the county was required to apply the Shaffer°
7 factors to determine whether the RREA plan designation and RR-10 zone allow
8 urban uses of rural land as applied to the subject property. We conclude that the
9 county and the parties had fair notice and an adequate opportunity to respond to
10 that argument. Accordingly, the issue is not waived.
11 On the merits, Turner responds that the board of commissioners did not err
� t 7 Y .. .0 the
20160
� L .a .-. i t�
12 in relying on DLCD's acknowleagelnell1. of the 20160 anicrLdn3ents and i1n.
13 concluding that it was not necessary to conduct a site -specific analysis for
14 compliance with Goal 14. Turner observes that we recently held, and the Court
15 of Appeals affirmed, that the county could rely on the acknowledgment of its
16 Rural Industrial (RI) plan designation and zone to conclude that the plan
17 designation and zone facially do not allow urban uses of rural land. Central
18 Oregon. Landwatch v, Deschutes County, Or LUBA (LUBA No
19 2022-075, Dec 6, 2022) (slip op at 24) (Aceti V), aff'd, 324 Or App 644, 525 P3d
20 895 (2023). Turner observes that, consistent with that holding, the state agency
21 letter provides: "The application proposes to include the subject property in an
22 RR-10, Rural Residential Zoning district. It is unclear to us whether such an
r
Page 79
I arrangement is set forth in the County Comprehensive Plan. If so, the issue is
2 settled in this case and our Gal 14 comments would be addressed." Record 1435
3 (emphasis added). Turner quotes the board of commissioners' findings that "such
4 an arrangement" is set forth in the DCCP because DCCP Table 1.3.3 provides
5 that the county's RREA plan designation is implemented by the RR-10 and
6 WA-10 zones.
7 We agree with Turner that the board of commissioners did not err in
8 relying on DLCD's acknowledgement of the 2016 amendments and in
9 concluding that it was not necessary to conduct a site -specific analysis for
10 compliance with Goal 14. That the RREA plan designation could previously only
11 be applied to lands for which Goal 3, 4, 11, and 14 exceptions were taken does
4 ,,,,, r n ttn1110;(('11tt that RRR d desicynado of nontresource lands requires a
12 not co111pe1 a concluMn. A 1\L\.l...r[ > �svv A �av
13 site -specific analysis for compliance with Goal 14.
14 The DCCP provides that the RREA comprehensive plan designation is
15 implemented by the RR-10 and Multiple Use Agriculture (MUA) zones. We have
16 no reason to believe that DLCD's acknowledgment of the 2016 amendments as
17 consistent with Goal 14 was premised on anything other than the conclusion that
18 the RREA plan designation facially does not allow urban uses of rural land.
19 DCCP Section 3.2 is titled "Rural Development," and it includes a general
20 discussion of growth potential in the county and a list of possibilities for new
I :i
I rural development." Although DCCP Section 3.2 states that most of the listed
2 possibilities are site -specific, and although the list of possibilities does not
is DCCP Section 3.2 provides, in part:
"[C]hanges to State regulations [have] opened up additional
opportunities for new rural development. The following list
identifies general categories for creating new residential lots, all of
which are subject to specific State regulations.
"■ New lots can be created in destination resorts
"■ Some farm lands can be subdivided to permit one or two `non-
farm' parcels
"■ New lots can be created based on the property rights
legislation known as Measure 37 and Measure 49
"■ New lots can be created through the addition of sewer systems
"■ New lots can be created in Unincorporated Communities (see
Chapter 4)
"■ 2009 legislation permits a new analysis of agricultural
designated lands
"■ Existing large forest or rural residential lots can be subdivided
"■ Exceptions can be granted from the Statewide Planning Goals
"■ Some farm lands with poor soils that are adjacent to rural
residential uses can be rezoned as rural residential
"■ Some farm lands with poor soils can be rezoned into a new
agricultural category with a smaller acreage requirement
"* * * Most of these possibilities are extremely site -specific
requiring an analysis of each property."
I include redesignating and rezoning individual properties from agricultural to
2 nonresource in quasi-judicial proceedings after concluding that the properties are
3 not "agricultural land" for purposes of Goal 3, the list does not purport to be
4 exclusive. See n 15. DCCP Policy 2.2.2. provides, "[EFU] sub -zones shall remain
5 as described in the 1992 Farm Study * * * unless adequate legal findings for
6 amending the sub -zones are adopted or an individual. parcel is rezoned as allotived
7 by Policy 2.2.3." (Emphasis added.) Again, Policy 2.2.3 is to "[a]llow
8 comprehensive plan and zoning map amendments, including for those that
9 qualms as non --resource land, for individual EFU parcels as allowed by State
10 Statute, Oregon Administrative Rules and this Comprehensive Plan." (Emphasis
11 added.) OAR 660-004•-0040 applies to resource lands for which a Goal 3 or 4
12 exception has already been taken, and OAR 660-014-0040 aan��f. s new
13 exceptions to Goal 14. Those provisions do not apply where, as here, the county
14 concludes (1) that no Goal 3 or 4 exception is required because the subject
15 property is nonresource land and (2) that no Goal 14 exception is required
16 because the plan designation and zone applied by the challenged PAPA do not
17 allow urban uses of rural land. We conclude that the board of commissioners did
18 not err in relying on DLCD's acknowledgment of the 2016 amendments to
19 conclude that the RREA plan designation facially complies with Goal 14.
20 We similarly conclude that the board of commissioners did not err in
21 relying on DLCD's acknowledgment of the 2016 amendments to conclude that
22 the RR-10 zone facially complies with Goal 14. We observe, as the board of
Page 82
I commissioners did, that DCCP Table 1.3.3 expressly provides that the county's
2 RREA plan designation is implemented by the RR-10 zone. In addition, DCC
3 18.60.010 explains:
4 "The purposes of the [RR-10] Zone are to provide rural residential
5 living environments; to provide standards for rural land use and
6 development consistent with desired rural character and capability
7 of the land and natural resources; to manage the extension of public
8 services; to provide for public review of nonresidential uses; and to
9 balance the public's interest in the management of community
10 growth with the protection of individual property rights through
11 review procedures and standards." (Emphasis added.)
12 Although the 2016 amendments themselves may not have included any mention
13 of the RR-10 zone, as 1000 Friends points out, "DLCD acknowledgment looks
14 at the comprehensive plan as a whole to determine compliance with the goals."
15 1000 Friends' Intervenor -Petitioner's Brief 53 (emphasis in original). In
16 acknowledging the 2016 amendments, DLCD would have been aware of DCCP
17 Table 1.3.3 and would have understood that the RR-10 zone would implement
18 the RREA plan designation on nonresource lands in order to provide standards
19 for rural land use and development.
20 We conclude that the board of commissioners did not err in relying on
21 DLCD's acknowledgement of the 2016 amendments to conclude (1) that the
22 RREA plan designation and RR-10 zone facially do not allow urban uses of rural
23 land and (2) that it was therefore not necessary to apply the Shaffer factors to
24 determine whether the RREA plan designation and RR-10 zone allow urban uses
25 of rural land as applied to the subject property.
Page 83
1 1000 Friends' fourth assignment of error is denied,
2 B. Site -Specific Analysis
3 Because the board of commissioners concluded that the RREA plan
4 designation and RR-10 zone facially do not allow urban uses of rural land, the
5 board of commissioners concluded that it was not necessary to apply the Shaffer
6 factors to determine whether the RREA plan designation and RR-10 zone allow
7 urban uses of rural land as applied to the subject property. Nevertheless, taking
8 a belt -and -suspenders approach, the board of commissioners adopted alternative
9 findings applying the Shaffer factors and concluding that the RREA plan
10 designation and RR-10 zone do not allow urban uses of rural land as applied to
11 the subject property. Record 33-35.
12 r,, fl-, f;1.�r rur,a�r;gru ,Pri+ of er'r'or under 1tC thrr'rl aCClgYlmerrt of P.ri'(ll' 10 Ofl
111 L1.e 1 UL U V UUL iv ♦4 j
13 Friends argues that the challenged PAPA violates Goal 14 because it does not
14 "provide for an orderly and efficient transition from rural to urban land use," The
15 second subassignment of error under 1000 Friends' third assignment of error and
16 the second subassignment of error under COLW's second assignment of error are
17 that the challenged PAPA violates Goal 14 because it allows an urban use of rural
18 land, or "`urbanization,' if not a conversion to `urban use,"' under the Shaffer
19 factors. COLW's Petition for Review 30. Because those challenges are dependent
20 on our conclusion that the county (1) could not rely on DLCD's acknowledgment
21 of the 2016 amendments to conclude that the RREA plan designation and RR-10
22 zone facially do not allow urban uses of rural land and (2) was required to apply
•
I the Shaffer factors to determine whether the RREA plan designation and RR-10
2 zone allow urban uses of rural land as applied to the subject property, we do not
3 address them further.
4 1000 Friends' third assignment of error and the second subassignment of
5 error under COLW's second assignment of error are denied.
6 COLW's second assigmnent of error is denied.
7 CONCLUSION
8 On remand, the board of commissioners must consider the ability to use
9 the subject property for farm use in conjunction with other property, including
10 the Keystone property, and may not limit its review to the profitability of farm
11 use of the subject property as an isolated unit. The board of commissioners must
12 consider the ability to import feed for animals and may not limit its consideration
13 to the raising of animals where adequate food may be grown on the subject
14 property. The board of commissioners must also consider whether the subject
15 property is suitable for farm use as a site for construction and maintenance of
16 farm equipment. Furthermore, the board of commissioners must consider the
17 evidence and adopt findings addressing the impacts of redesignation of the
18 property related to water, wastewater, and traffic and whether retaining the
19 property's agricultural designation is necessary to permit farm practices on
20 adjacent or nearby lands.
21 The county's decision is remanded.
Page 85
FILED: January 24, 2024
IN THE COURT OF APPEALS OF THE STATE OF OREGON
CENTRAL OREGON LANDWATCH; WILLIAM BUCHANAN; ELIZABETH
BUCHANAN; KEYSTONE CATTLE & PERFORMANCE HORSES, LLC; REDSIDE
RESTORATION PROJECT ONE, LLC; PAUL J. LIPSCOMB; and
DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT,
Respondents,
and
1000 FRIENDS OF OREGON,
Respondent
Cross -Petitioner,
V.
DESCHUTES COUNTY,
Cross -Respondent,
and
710 PROPERTIES, LLC and CHARLES THOMAS,
Petitioners
Cross -Respondents,
and
ROBERT TURNER,
Cross -Respondent.
Land Use Board of Appeals
2023006,2023009
A182073
Argued and submitted on October 27, 2023.
J. Kenneth Katzaroff and D. Adam Smith argued the cause and filed the briefs for
petitioners -cross -respondents 710 Properties, LLC, and Charles Thomas, and for cross -
respondent Robert Turner. Also on the briefs were Bailey M. Oswald and Schwabe
Williamson & Wyatt P.C.
Robert M. Wilsey argued the cause for respondent Department of Land Conservation and
Development. Also on the briefs were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Andrew Mulkey argued the cause and filed the briefs for respondent -cross -petitioner
1000 Friends of Oregon.
Carol E. Macbeth filed the brief for respondent Central Oregon Landwatch.
Jeffrey L. Kleinman filed the brief for respondents William Buchanan, Elizabeth
Buchanan, and Keystone Cattle & Performance Horses, LLC.
D. Adam Smith, J. Kenneth Katzaroff, Bailey M. Oswald, and Schwabe Williamson &
Wyatt P.C. filed the brief for respondents 710 Properties, LLC, and Charles Thomas.
James D. Howsley and Jordan Ramis PC filed the brief for respondent Redside
Restoration Project One, LLC.
David Doyle filed the brief for cross -respondent Deschutes County.
No appearance for respondent Paul J. Lipscomb.
Before Egan, Presiding Judge, and Kamins, Judge, and DeVore, Senior Judge.
KAMINS, J.
Affirmed; motion to strike DLCD's reply brief denied as moot.
DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS
Prevailing party: On petition, Respondents; on cross -petition, Cross -Respondents.
[_ ] No costs allowed
[X] Costs allowed, payable by Petitioners on petition; Cross -Petitioner on cross -
petition.
[ ] Costs allowed, to abide the outcome on remand, payable by
1 KAMINS, J.
2 This land use case concerns the application of 710 Properties, LLC, to
3 redesignate and rezone 710 acres of land in Deschutes County (the subject property).
4 Specifically, 710 Properties seeks (1) the designation of the subject property to be
5 changed from "Agricultural" to "Rural Residential Exception Area" (RREA), and (2) the
6 zoning of the subject property to be changed from "Exclusive Farm Use"' (EFU) to
7 "Rural Residential - 10 Acre Minimum" (RR-10). Those changes would allow the
8 subject property to be used for rural, residential uses, instead of the uses to which it is
9 currently limited.
10 In the proceedings below, a hearings officer recommended that the
11 Deschutes County Board of Commissioners (the county) approve 710 Properties'
12 application. The county considered and approved the application. The Land Use Board
13 of Appeals (LUBA) then remanded the county's decision on various grounds.
14 In this proceeding for judicial review of LUBA's order, petitioner 710
15 Properties raises three assignments of error, petitioner Thomas raises four assignments of
16 error, cross -petitioner 1,000 Friends of Oregon raises one assignment of error, and
17 respondent the Department of Land Conservation and Development (DLCD) raises a
18 single cross -assignment of error. We reject each of those assignments.2 We write,
1 The current zoning of the property is "Exclusive Farm Use-Terrebonne-Subzone."
Terrebonne is an unincorporated community in Deschutes County. For the purposes of
this opinion, we simply refer to the zoning as "Exclusive Farm Use."
2 We note that petitioners have moved to strike the reply brief DLCD filed in
1
I however, to address Thomas's first assignment of error, which challenges LUBA's
2 interpretation of OAR 660-033-0020(1)(a)(C).
3 As explained further below, OAR 660-033-0020(1)(a)(C) defines
4 "agricultural land" under Goal 3 of Oregon's Statewide Planning Goals to include "[l]and
5 that is necessary to permit farm practices to be undertaken on adjacent or nearby
6 agricultural lands." In Thomas's view, the test under that rule is whether the physical
7 land itself is "necessary to permit farm practices to be undertaken on adjacent or nearby
8 agricultural lands." LUBA concluded that the rule "asks not only whether the land itself
9 is necessary to permit farm practices on adjacent or nearby lands but, also, whether the
10 land's resource designation and zoning, and the presumed lack of impacts or conflicts
11 with farming on adjacent or nearby lands, are necessary to permit farm practices on
12 adjacent or nearby lands." For the reasons below, we agree with LUBA. Therefore, we
13 affirm.
14
I. BACKGROUND
15 The subject property consists of nine tax lots totaling 710 acres in
16 Deschutes County. It is over four miles outside of the City of Redmond's urban growth
17 boundary. The property is designated in the Deschutes County Comprehensive Plan
support of its cross -assignment of error. Because the relief DLCD seeks is not available
via a cross -assignment of error, State v. Clayton, 210 Or App 442, 446-47, 150 P3d 1078
(2007), Murray v. State of Oregon, 203 Or App 377, 388, 124 P3d 1261 (2005), rev den,
340 Or 672 (2006), we reject DLCD's cross -assignment, and deny the motion to strike as
moot.
2
1 (DCCP) as "agricultural" land and zoned as EFU. Given that designation, permissible
2 uses of the land are limited. See, e.g., OAR 660-033-0120 Table, available at
3 https://www.oregon.gov/lcd/LAR/Documents/div033_use-table.pdf (accessed Jan 16,
4 2024) (describing permissible uses of agricultural land).
5 710 Properties applied for a "post -acknowledgement plan amendment" to
6 change the plan designation of the subject property in the DCCP from "agricultural" to
7 RREA and the zoning from EFU to RR-10. Those changes in designation would allow
8 the subject property to be used for rural, residential uses, instead of the uses to which is it
9 currently limited.3
10 In its application for redesignation and rezoning, 710 Properties addressed
11 the definition of agricultural land in OAR 660-033-0020(1)(a)(C)--which, as noted above,
12 defines "agricultural land" to include "[l]and that is necessary to permit farm practices to
13 be undertaken on adjacent or nearby agricultural lands" --and asserted that the land was
14 not agricultural land. In addressing OAR 660-033-0020(1)(a)(C) in its application, 710
15 Properties described the current EFU zoned properties near the subject property, listed
16 their current uses, and explained why none of them needed the subject property in order
17 to permit farm practices.
18 In response to 710 Properties' application, DLCD, the Department of Fish
3 As the county explained in its approval of 710 Properties' application for
redesignation of the subject property, when Deschutes County amended the DCCP in
2016, it made the "determination that the RREA plan designations * * * should apply to
non-agricultural land." RREAs "provide opportunities for rural residential living outside
urban growth boundaries and unincorporated communities."
91
1 and Wildlife, and the Department of Agriculture submitted a letter recommending that
2 the subject property "retain an Exclusive Farm Use designation and not be converted to
3 allow rural residential development." Regarding OAR 660-033-0020(1)(a)(C), those
4 state agencies explained their view that 710 Properties' assertion that the subject property
5 was not "necessary to permit farm practices to be undertaken on adjacent or nearby
6 agricultural lands" was not "supported by any comprehensive evaluation of the farming
7 and ranching practices that are associated with existing and potential future farm uses in
8 the surrounding area." The state agencies raised concerns regarding, among other points,
9 potential traffic impacts, water supply issues, and the potential for trespassing, that could
10 be caused by redesignation.
11 The hearings officer who initially considered 710 Properties' application
12 found that 710 Properties "met the burden of proof necessary to justify the request for a
13 Comprehensive Plan Map Amendment to re -designate the subject property from
14 Agriculture to Rural Residential Exception Area and a corresponding request for a Zone
15 Map Amendment to reassign the zoning of the subject property from Exclusive Farm Use
16 (EFU) to Rural Residential." Accordingly, the hearings officer recommended that the
17 county approve the application.
18 The county subsequently approved 710 Properties' application. Concerning
19 OAR 660-033-0020(1)(a)(C), the county noted that "[t]he State agencies raised the issue
20 of traffic impacts related to the Goal 3 issue of whether land is necessary to permit farm
21 practices to be undertaken on nearby lands." It concluded, however, that "[t]raffic issues
11
I are not * * * a relevant consideration in addressing this issue because [the issue is]
2 whether the 'land' to be rezoned, the subject property, is needed by area farms to conduct
3 farm practices on their properties."
4 The county's decision was then appealed to LUBA by, among others, 1000
5 Friends of Oregon. Before LUBA, 1000 Friends argued that the county misconstrued
6 OAR 660-033-0020(1)(a)(C). Specifically, 1000 Friends argued that land is "necessary
7 to permit farm practices on adjacent or nearby lands if the impacts from the nonresource
8 use of the land would prevent farm practices on adjacent or nearby lands." Thomas
9 responded that the county did not misconstrue OAR 660-033-0020(1)(a)(C), because that
10 "rule asks whether the land itself is necessary to permit farm practices on adjacent or
11 nearby lands, not whether the land's agricultural designation and zoning, and the
12 consequent lack of impacts, are necessary to permit farm practices on adjacent or nearby
13 lands." (Emphases in LUBA's Order.)
14 LUBA disagreed with Thomas. It concluded that OAR 660-033-
15 0020(1)(a)(C) "asks not only whether the land itself is necessary to permit farm practices
16 on adjacent or nearby lands but, also, whether the land's resource designation and zoning,
17 and the presumed lack of impacts or conflicts with farming on adjacent or nearby lands,
18 are necessary to permit farm practices on adjacent or nearby lands." It further explained
19 that "although 'necessary' is a high standard, and some conflicts maybe allowed, * * * the
20 [county] erred in concluding that traffic impacts are not a relevant consideration."
21 Ultimately, LUBA remanded for further proceedings, concluding that the county's
0,
I findings that the subject property is not necessary to permit farm practices on adjacent or
2 nearby lands under OAR 660-033-0020(1)(a)(C) were inadequate.4
3 Thomas now seeks judicial review of LUBA's order.
0
II. ANALYSIS
5 On judicial review, in Thomas's first assignment of error, he argues that
6 "LUBA incorrectly created an impacts test out of OAR 660-033-0020(1)(a)(C) that
7 simply is not contained in the law." As Thomas sees it, the test under OAR 660-033-
8 0020(1)(a)(C) is whether the land itself is "necessary to permit farm practices to be
9 undertaken on adjacent or nearby agricultural lands." DLCD responds that "LUBA
10 correctly construed OAR 660-033-0020(i)(a)(C) to require an evaluation of the impacts
11 that redesignating and rezoning land from agricultural to nonresource will have on
12 adjacent or nearby lands and a determination of whether those impacts will prevent farm
13 practices on those lands." (Internal quotation marks omitted.) Thus, in respondents'
14 view, as one set of respondents puts it, "LUBA applied the test as written, and remanded
15 so the county could do what it failed to do in the appealed decision: evaluate whether the
16 additional residential traffic that would result from the conversion of the subject property
17 from agricultural to residential use would permit the continuation of farm practices on the
4 LUBA noted that the county did make findings regarding traffic impacts, but
concluded that those findings were inadequate because the county did not "set out the
facts which the [county] believed and relied upon or explain how those facts led to the
[county's] conclusion."
Additionally, LUBA highlighted that the county's findings did not address "water,
nuisance, or trespass impacts, despite the state agency letter" raising those issues.
I adjacent agricultural land."
2 As to the assignment of error addressed in this opinion, our task is to
3 discern whether LUBA's order is "unlawful in substance." ORS 197.850(9)(a); Schaefer
4 v. Marion County, 318 Or App 617, 620, 509 P3d 718 (2022). An order is unlawful in
5 substance if it represents "a mistaken interpretation of the applicable law." Schaefer, 318
6 Or App at 620 (internal quotation marks omitted). When our review requires
7 interpretation of an administrative rule, as in this case, "we seek to divine the intent of the
8 rule's drafters" by considering "the text of the rule in its regulatory and statutory context."
9 Id. (internal quotation marks omitted).
10 A. Agricultural Land
11 Prior to turning to the rule at issue in this case, OAR 660-033-
12 0020(1)(a)(C), it is useful to describe the statutory and regulatory context within which
13 OAR 660-033-0020(1)(a)(C) is situated --viz., Oregon's statutory and regulatory
14 framework declaring and implementing its policy for the maintenance and preservation of
15 Oregon's limited supply of agricultural land. See Schaefer, 312 Or App at 337 (beginning
16 analysis of the meaning of administrative rule "by considering the statutory and
17 regulatory context").
18 1. Statutory context
19 "The legislature's primary statement of agricultural land use policy is
20 contained in ORS 215.243, which has remained unchanged since its enactment as part of
21 Oregon's statewide land use planning system in 1973." Stop the Dump Coalition v.
7
I Yamhill County, 364 Or 432, 441-42, 435 P3d 698 (2019). That statute "finds and
2 declares" that "preservation of agricultural land, particularly in large blocks, is an
3 important statewide policy and that limitations on urban expansion into, and alternative
4 uses of, agricultural and forest lands are necessary and a matter of statewide concern."
5 Stop the Dump Coalition, 364 Or at 442. It provides, in pertinent part:
6 "The Legislative Assembly finds and declares that:
7If* ****
8 "(2) The preservation of a maximum amount of the limited supply of
9 agricultural land is necessary to the conservation of the state's economic
10 resources and the preservation of such land in large blocks is necessary in
11 maintaining the agricultural economy of the state and for the assurance of
12 adequate, healthful and nutritious food for the people of this state and
13 nation.
14 "(3) Expansion of urban development into rural areas is a matter of
15 public concern because of the unnecessary increases in costs of community
16 services, conflicts between farm and urban activities and the loss of open
17 space and natural beauty around urban centers occurring as the result of
18 such expansion.
19 "(4) Exclusive farm use zoning as provided by law, substantially
20 limits alternatives to the use of rural land and, with the importance of rural
21 lands to the public, justifies incentives and privileges offered to encourage
22 owners of rural lands to hold such lands in exclusive farm use zones."
23 ORS 215.243 (emphases added). Further, the legislature's "policy for dwellings on farm
24 and forest lands, set out in [ORS 215.700], similarly seeks to '[1]imit the future division
25 of and the siting of dwellings upon the state's more productive resource land."' Stop the
26 Dump Coalition, 364 Or at 442 (quoting ORS 215.700(2); second brackets in Stop the
27 Dump Coalition).
28 2. Regulatory context
1
2
3
4
5
6
To effectuate those statutory policies, the legislature has directed the Land
Conservation and Development Commission (LCDC) "to implement Oregon statutes by
adopting land use planning goals that set out broad objectives for land use planning in
Oregon." Id. at 443 (internal quotation marks omitted). Relevant to this petition for
judicial review is Goal 3, which recognizes the legislature's directive concerning the
importance of the preservation of agricultural lands as set forth in ORS 215.243 and ORS
7 215.700. "Goal 3 both (1) promotes preservation of agricultural land for 'farm use' and
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
'maximum agricultural productivity' and (2) limits nonfarm uses of agricultural lands to
those 'that will not have significant adverse effects' on accepted farming or forest
practices." Stop the Dump Coalition, 364 Or at 444.
Goal 3 provides, in pertinent part:
"To preserve and maintain agricultural lands.
"Agricultural lands shall be preserved and maintained for farm use,
consistent with existing and future needs for agricultural products, forest
and open space and with the state's agricultural land use policy expressed in
ORS 215.243 and 215.700.
"USES
"Counties may authorize farm uses and those nonfarm uses defined
by commission rule that will not have significant adverse effects on
accepted farm or forest practices.
"IMPLEMENTATION
"Zoning applied to agricultural land shall limit uses which can have
significant adverse effects on agricultural and forest land, farm and forest
uses or accepted farming or forest practices.
W
1 "GUIDELINES
2 IT*****
3 "B. IMPLEMENTATION
4 "1. Non -farm uses permitted within farm use zones under ORS
5 215.213(2) and (3) and 215.283(2) and (3) [which set forth certain land
6 uses allowed in lands zoned for 'exclusive farm use'] should be minimized
7 to allow for maximum agricultural productivity."
8 LCDC also has adopted administrative rules to implement Oregon statutes
9 concerning agricultural land and "preserve and maintain agricultural lands as defined by
10 Goal 3 for farm use[.]" OAR 660-033-0010; see generally OAR ch 660, div 33
11 (regarding agricultural land). One such rule, OAR 660-033-0020(1)(a), is central to this
12 review. OAR 660-033-0020(1)(a) provides that "agricultural land" as defined in Goal 3
13 includes land with certain soil types, land that is "suitable for farm use," and, as relevant
14 here, "[l]and that is necessary to permit farm practices to be undertaken on adjacent or
15 nearby agricultural lands."5 Land that meets that definition must be inventoried as
OAR 660-033-0020(1) provides:
"(a) 'Agricultural Land' as defined in Goal 3 includes:
"(A) Lands classified by the U.S. Natural Resources Conservation Service
(NRCS) as predominantly Class I -IV soils in Western Oregon and I -VI
soils in Eastern Oregon;
"(B) Land in other soil classes that is suitable for farm use as defined in
ORS 215.203(2)(a), taking into consideration soil fertility; suitability for
grazing; climatic conditions; existing and future availability of water for
farm irrigation purposes; existing land use patterns; technological and
energy inputs required; and accepted farming practices; and
"(C) Land that is necessary to permit farm practices to be undertaken on
lul
1 "agricultural land," OAR 660-033-0030(1), and LCDC rules limit the uses that are
2 permitted on such land, e.g., OAR 660-033-0120.
3 B. OAR 660-033-0020(1)(a)(C)
4 With that understanding of the statutory and regulatory context concerning
5 the maintenance and preservation of agricultural land within which OAR 660-033-
6 0020(1)(a)(C) was implemented, we turn to the rule itself.
7 OAR 660-033-0020(1)(a)(C) defines "agricultural land" as "[hand that is
8 necessary to permit farm practices to be undertaken on adjacent or nearby agricultural
9 lands." LUBA concluded that OAR 660-033-0020(1)(a)(C) requires consideration of
10 both whether "the land itself" and "the land's resource designation and zoning" are
11 necessary to permit farm practices on adjacent or nearby lands. As Thomas sees it, that
12 interpretation represents a mistaken understanding of applicable law, because the test
13 under OAR 660-033-0020(1)(a)(C) is only whether the physical land itself is necessary to
14 permit farm practices on adjacent and nearby lands, and it does not include whether the
15 land's resource designation and zoning are also so necessary.
16 The dispute in this case turns on the meaning of the phrase "land that is
17 necessary to permit farm practices to be undertaken on adjacent or nearby agricultural
18 lands" in OAR 660-033-0020(1)(a)(C).
19 In this case, we think context provides an understanding of the text of OAR
adjacent or nearby agricultural lands."
11
1 660-033-0020(1)(a)(C) in determining whether a parcel qualifies as "agricultural land"
2 under OAR 660-033-0020(1)(a)(C).
3 OAR 660-033-0020(1)(a)(C) is part of, and was intended to implement,
4 Oregon's statutory and regulatory scheme for statewide land use planning for Oregon's
5 limited supply of agricultural land. That scheme, as a whole, makes up the relevant
6 context for our analysis. See State v. Klein, 352 Or 302, 309, 283 P3d 350 (2012) (a
7 statute's context includes related statutes); Havi Group LP v. Fyock, 204 Or App 558,
8 564, 131 P3d 793 (2006) ("Included in pertinent context are statements of statutory
9 policy.")
10 As set forth above, that statutory and regulatory scheme (1) is predicated on
11 an express policy goal of preserving the "maximum amount of the limited supply of
12 [Oregon's] agricultural land," and preserving such land for "farm use" and "maximum
13 agricultural productivity," ORS 215.243, Stop the Dump Coalition, 364 Or at 444; (2)
14 expressly recognizes that how a parcel is used can conflict with the viability of farm uses
15 on nearby parcels, e.g., ORS 215.243; and (3) is designed with safeguards to limit use of
16 land designated as agricultural land in ways that conflict with farm uses, e.g., Stop the
17 Dump Coalition, 364 Or at 444 (recognizing that Goal 3 "limits nonfarm uses of
18 agricultural lands to those 'that will not have significant adverse effects' on accepted
19 farming or forest practices"), Goal 3 (mandating that "[z]oning applied to agricultural
20 land shall limit uses which can have significant adverse effects on agricultural and forest
21 land, farm and forest uses or accepted farming or forest practices")
12
In view of that that statutory and regulatory scheme, which OAR 660-033-
2 0020(1)(a)(C) was intended to help implement, we think it likely that when LCDC
3 adopted OAR 660-033-0020(1)(a)(C), LCDC intended that a parcel be designated as
4 "agricultural land" if such designation and the accompanying zoning is "necessary to
5 permit farm practices to be undertaken on adjacent or nearby agricultural lands," OAR
6 660-033-0020(1)(a)(C), thereby preserving such adjacent and nearby agricultural land for
7 "farm use" and "maximum agricultural productivity," in accordance with this state's
8 policy regarding agricultural lands. That interpretation is also in keeping with Oregon's
9 recognition that many non-agricultural land uses --uses that would be permissible if land
10 designated as agricultural land was redesignated as non-agricultural land --may conflict
11 with nearby farm uses. And that interpretation makes use of the safeguards in Goal 3
12 (and the administrative rules implementing Goal 3) that limit use of agricultural land in
13 ways that conflict with farm uses.
14 Our conclusion becomes apparent if one considers the result of the
15 interpretation advanced by Thomas that OAR 660-033-0020(1)(a)(C) asks only whether
16 the land itself is "necessary to permit farm practices on adjacent or nearby agricultural
17 lands" not whether the land's resource designation and zoning are so necessary. Thomas's
18 interpretation of OAR 660-033-0020(1)(a)(C) would be no barrier to redesignation and
19 rezoning even if traffic impacts, for example, caused by a redesignation of the subject
20 property as non-agricultural land would wholly prevent farm uses on adjacent and nearby
21 agricultural land. That result would operate to reduce, not preserve, Oregon's limited
13
I supply of farmland, contrary the purpose of the statutory and regulatory scheme of which
2 OAR 660-033-0020(1)(a)(C) is a part, and which it was adopted to help implement.
3 Consequently, we agree with LUBA that consideration of whether land is
4 "agricultural land" under OAR 660-033-0020(1)(a)(C) must include consideration of
5 whether the land's resource designation and zoning is "necessary to permit farm practices
6 to be undertaken on adjacent or nearby agricultural lands."6
7 Having reached that conclusion, we note that we also agree with LUBA
8 that "necessary to permit farm practices on adjacent or nearby agricultural lands" is a
9 "high standard." Webster's Third New Intl Dictionary 1510 (unabridged ed 2002)
10 ("necessary" means "whatever is essential for some purpose" and "things that must be
11 had"). That is, we do not understand land to be agricultural land under OAR 660-033-
12 0020(1)(a)(C) merely because its designation as such would merely be "useful" or
6 That conclusion also accords with the rulemaking agency LCDC's broader role in
Oregon's scheme for land use planning: LCDC establishes and implements "statewide
polices for land use through the adoption of planning goals," local governments then
"adopt comprehensive plans that comply with the statewide goals and submit those plans
to LCDC for review," and LCDC, after reviewing comprehensive plans, "determines if
they are in compliance with the statewide goals." Central Oregon Landwatch v.
Deschutes County, 301 Or App 701, 703-04, 457 P3d 369, rev den, 366 Or 492 (2020).
Thus, LCDC establishes, implements, and ensures that land use is in compliance with,
statewide land use policies.
Given that role, one would expect that, generally, the rules that LCDC adopts
would allow for consideration of permissible uses of parcels of land--i.e., those parcels'
resource designation and zoning --rather than to be concerned merely with "the solid part
of the surface of the earth," Webster's Third New Intl Dictionary 1268 (unabridged ed
2002) (setting forth definitions of the word "land"), divorced from any legal context
within which that solid surface of the earth exists.
14
I "desirable" for nearby farm practices. Rather, for "land" to be agricultural land under
2 OAR 660-033-0020(1)(a)(C), that land, considering its resource designation and zoning,
3 must truly be necessary to adjacent and nearby farm practices.
M
III. CONCLUSION
5 In sum, we conclude that LUBA did not err in construing OAR 660-033-
6 0020(1)(a)(C) and, consequently, did not err when it concluded that the county erred
7 when it determined that "[t]raffic issues are not * * * a relevant consideration in
8 addressing" whether land is agricultural land under OAR 660-033-0020(1)(a)(C).
9 Consequently, we affirm.
10 Affirmed; motion to strike DLCU's reply brief denied as moot.
15
TJKES o
BOARD OF COMMISSIONERS' MEETING
❑ -C
REQUEST TO SPEAK
Citizen Input or Testimony
Subject: � z. � .;, M Date: -c3 w g
Name
Address
Phone #s f' -- ' 7-11
E-mail address 4 4�1e,, t
In Favor ❑ Neutral/Undecided ❑ Opposed
Submitting written documents as part of testimony? Yes . J No
If so, please give a copy to the Recording Secretary for the record.
SUBMIT COMPLETED REQUEST TO
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o„ { BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Input or Testimony
Subject: f ,.� 1` r;lf. C �, a Date: 'e r
Namej
Address
If / , r /
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Phone #s `
x a
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In Favor Neutral/Undecided Opposed
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If so, please give a copy to the Recording Secretary for the record.
SUBMIT COMPLETED REQUEST TO
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�JTes c
oG ?� BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
Citizen Innut or Testimonv
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If so, please give a copy to the Recording Secretary for the record.
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Name kr (Le -
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In Favor Neutral/UndecidedOpposed
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_
If so, please give a copy to the Recording Secretary for the record.
CA
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Citizen Input or Testimony
Subject: &. Z. Date: ,
Name ��706
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ov ? BOARD OF COMMISSIONERS' MEETING
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SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
I spent a career as a Navy SEAL and understanding the "why" behind what we
were doing always provided the motivation and inspiration to do it.
The "why" behind our community fight reflected in this large turnout against
rezoning is clear ...we, the public, don't want to see or be affected by urban
sprawl.
More about why Later.
Oregon has a zealous history of protecting agricultural land.
In a 1973 speech Governor Tom McCall castigated "sagebrush subdivisions,
coastal condo mania, and the ravenous rampage of subdivisions."
This led to his signing of Senate Bill 101 creating statewide protections for
farmland.
History reflects; rezoning is a serious issue and not to be taken lightly!
Comments concerning the issues at hand remanded back to the county:
1. Findings related to the ability to use the subject property for farm
use in conjunction with other property; the acreage is compatible for
farm use with surrounding properties by using it as open range for
seasonal grazing.
Oregon Directives states that even wasteland, in an EFU zone, neither
economically tillable nor grazeable, lying in or adjacent to and in common
ownership with farm use land and which is not currently being used for any
economic farm use, is still considered current employment of land for farm
use.
2. Findings related to the source of feed for farm uses involving
animals; The subject acreage is suitable for Spring grazing.
3. Findings related to whether the subject property is suitable for farm
use as a site for the construction and maintenance of equipment
and facilities for farm activity; this land is usable for farm buildings.
4. Findings related to impacts on surrounding land use in accordance
with comprehensive plan policies and zoning ordinances,
specifically, water, wastewater, and traffic impacts on surrounding
agricultural lands and the agricultural industry.
Water! My well went dry 2 years ago and was deepened another 100 feet.
Others in the area, including a large commercial hay grower (Ed Staub) have
needed to deepen wells significantly within the last 10-12 years. I am not
aware of any environmental impact studies showing the water supply is
adequate to support 71 new users. Wastewater and sewage are also
concerns.
We all know there is only one access road in the area that would need to -
support hundreds of additional vehicle trips per day. This Is a serious safety
issue.
There are almost 24 square miles of Deschutes County already zoned rural
residential. Why not build there!
This brings us back to "The Why"!
In an April 10th, 2022, KTVZ news report concerning this proposal an Eden
Property representative, Dale Stockamp, stated, "The project is really not
about maximizing profits. If we were trying to maximize profits we would be
doing things quite differently, first we would be pursuing higher housing
density than the rural residential 10-acre zoning that we are currently applying
for."
'Qn %Alhaat iQ th O %Aih x0?
— :v � �y . .
Could it be that rezoning approval would be the precedent Eden is looking for
to change the areas' culture and then follow to rezone other areas of our
Valley to create additional developments including higher density
developments for maximizing profits?
County commissioners serve as the publics elected advocates, not advocates
for real estate developers.
So what could possibly be their why for approving this rezoning and not
supporting the public?
I request our county commissioners support the public and reconsider their
decision.
vT E S co i
2� BOARD OF
COMMISSIONERS
MEETING DATE: July 24, 2024
SUBJECT: Public Hearing: Plan Amendment and Zone Change at 19975 Destiny Court
RECOMMENDED MOTION:
Following the conclusion of the public hearing, the Board may elect to:
® continue both the oral and written portions of the hearing to a date certain;
close the oral portion of the hearing and leave the written record open for a certain
number of days;
close the public hearing and begin deliberations; or
close the public hearing and schedule deliberations on a date to be determined.
BACKGROUND AND POLICY IMPLICATIONS:
The Board of County Commissioners will conduct a public hearing on July 24, 2024 to
consider an application for a Comprehensive Plan Map Amendment to change the
designation of property at 19975 Destiny Court from Agricultural to Rural Residential
Exception Area. The applicant also requests approval of a corresponding Zone Map
Amendment to change the zoning of the subject property from Exclusive Farm Use to
Multiple Use Agricultural (MUA-10). This will be the second of two required public hearings.
BUDGET IMPACTS:
None
ATTENDANCE:
Anthony Raguine, Principal Planner
STAFF MEMORANDUM
TO: Board of County Commissioners ("BOCC")
FROM: Anthony Raguine, Principal Planner
DATE: July 24, 2024
RE: Public Hearing for a Comprehensive Plan Amendment and Zone Change Request (ref.
File Nos. 247-23-000436-ZC, 247-23-000443-PA, 247-24-000651-MA)
On July 24, 2024, the BOCC will conduct a public hearing to consider a Plan Amendment and Zone
Change.
I. PROPOSAL
The applicant requests approval of a Comprehensive Plan Amendment to change the designation
of the subject property from Agricultural (AG) to Multiple Use Agricultural (MUA10) and a
corresponding Zone Change to rezone the subject properties from Exclusive Farm Use (EFU) to Rural
Residential Exception Area (RREA). No exceptions to the Statewide Planning Goals are requested.
The subject property is +/-65.1 acres in size and irregularly shaped (see attached location map).
11. BACKGROUND
The applicant requests that Deschutes County change the zoning and the plan designation because
the subject property does not qualify as "agricultural land" under Oregon Revised Statutes (ORS) or
Oregon Administrative Rules (OAR) definitions. In this case, an Agricultural Soils Capability
Assessment (Order 1 Soil Survey) was conducted by Brian T. Rabe, CPSS, WWS, for most of the
subject property. The Soil Survey found that approximately 65.8 percent of the subject property
does not meet the definition of agricultural soils. For this reason, the applicant proposes that no
exception to Statewide Planning Goal 3, Agricultural Land, is necessary.
The BOCC public hearing will be the second of two (2) required hearings for this proposal. The first
hearing was held on February 27, 2023, before a Deschutes County Hearings Officer and the
Hearings Officer found the applicant demonstrated compliance with all applicable standards. For
this reason, the Hearings Officer recommended the BOCC approve the applicant's request.
Staff notes the original proposal included a Conditional Use Permit (CUP) and Tentative Plan (TP)
application for a 14-lot subdivision. Because that subdivision application would be dependent on
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
(541) 388-6575 @ cdd@deschutes.org ® www,deschutes.org/cd
the successful outcome of the subject plan amendment and zone change, the CUP/TP applications
have been placed "on hold" and decoupled from the current applications. Several documents and
materials submitted by the applicant include information directed towards the approval of a
subdivision but are not applicable to the plan amendment and zone change. Similarly, a number of
comments from the public were submitted to the record and most of these comments were
directed to the CUP/TP application.
Staff also notes the original plan amendment and zone change applications included two (2)
properties. The applicant filed for a modification and property line adjustment to remove the Flood
Plain portion from the property. For this reason, the current plan amendment and zone change
application consists of one (1) property that is entirely zoned EFU.
111. TIMELINE
This proposal is not subject to the statutory 150-day review timeline.
IV. BOARD CONSIDERATION
As the subject properties include lands designated for agricultural use, Deschutes County Code
22.28.030(C) requires the applications to be heard de novo before the BOCC, regardless of the
Hearings Officer's recommendation.
At the hearing, the BOCC will be asked to consider the materials in the record, evidence and
testimony presented by the applicant, and evidence and testimony from other interested parties.
V. RECORD
The record is presented at the following Deschutes County Community Development Department
website:
https://www deschutes org/cd/page/247-22-000436-zc-247-22-000443-pa-destiny-court-
properties-Ilc-comprehensive-plan-amendment
Scan the QR code below using a smartphone camera app and a direct link to the website listed
above will load.
Attachment: Location Map
247-23-000436-ZC & 443-PA, 247-24-000651-MA Page 2 of 2
Uw-ces �O
BOARD OF COMMISSIONERS' MEETING
a {
t
REQUEST TO SPEAK
Citizen Input or Testimony
4
Subject: P�ecr Date:
l�
Name
Address o -- r j of L� r`
/V �
Phone #s
In Favor Neutral/Undecided Opposed
Submitting written documents as part of testimony? ;2pYes 1:1No
If so, please give a copy to the Recording Secretary for the record.
SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
�v`(E S COG2a
BOAR® OF
COMMISSIONERS
MEETING DATE: July 24, 2024
SUBJECT: Senate Bill 80 - Draft Statewide Wildfire Hazard Mapping and Rules Discussion
RECOMMENDED MOTION:
None —presentation only.
BACKGROUND AND POLICY IMPLICATIONS:
Staff will provide a summary to the Board of County Commissioners (Board) as it pertains
to the newest draft of the Statewide Wildfire Hazard Map created by the Oregon
Department of Forestry (ODF) and Oregon State University (OSU). Staff last provided the
Board with a formal update on the hazard mapping process on September 13, 2023.
In 2022, ODF and Oregon State University (OSU) developed administrative rules and a
statewide wildfire risk map required under Senate Bill (SB) 762. The rules, adopted by the
Board of Forestry, established the criteria by which the map was developed, updated, and
maintained. The map also showed what properties in Oregon fall within the wildland-urban
interface (WUI), as defined by the Board of Forestry in rule in 2021. The initial draft of the
wildfire hazard map was released on June 30, 2022. However, on August 4, 2022, the draft
wildfire hazard map was temporarily withdrawn for further refinement. SB 80, passed in
the 2023 Oregon legislative session, outlined changes that ODF was required to make to
the map before it was released to the public again.
The newest draft version of the hazard map will be made public on July 18, 2024. Staff will
provide some details and statistics from the draft map as it relates to Deschutes County.
ODF anticipates that a final version of the hazard map, and all associated regulatory
standards associated with the map, will be released on October 1, 2024.
In addition, ODF is currently receiving comments on proposed updates to Oregon
Administrative Rules that update definitions, notice requirements, appeal options, and
make other technical edits related to wildfire hazard mapping.
BUDGET IMPACTS:
None
ATTENDANCE:
Will Groves, Planning Manager
Kevin Moriarty, Deschutes County Forester
MEMORANDUM
TO: Deschutes County Board of Commissioners (Board)
FROM: Kyle Collins, Associate Planner
Will Groves, Planning Manager
Kevin Moriarty, County Forester
DATE: July 24, 2024
SUBJECT: Senate Bill 80 - Draft Statewide Wildfire Hazard Mapping and Rules Discussion
I. BACKGROUND
Certain properties in rural Deschutes County will likely be subject to new wildfire mitigation measures
as approved under Senate Bill (SB) 7621. One of the primary pieces of SB 762 is the creation of a
comprehensive Statewide Wildfire Hazard Map to guide new wildfire regulations for development.
The initial hazard map was made available on June 30, 2022. However, based on significant concern
from citizens and interest groups throughout the state, the Oregon Department of Forestry (ODF)
withdrew the initial map to provide more time for additional public outreach and refinement of
hazard classification methodologies.
SB 802, passed in the 2023 Oregon Legislative Session, amended sections of SB 762 and outlined
changes that ODF is required to make to the map before future public release. The bill changed the
name of the map from "Wildfire Risk Map" to "Wildfire Hazard Map." It also reduced the hazard
categories from the original five to three: low, medium, and high hazard. SB 80 also forbid insurance
companies from using the map to set insurance rates for homeowners.
Based on comments from Oregon State University (OSU) and ODF staff, one of the primary alterations
to the map is a more thorough consideration of irrigated agriculture in the hazard analysis. ODF and
OSU stated that lands irrigated in one of the past five years would receive different weighting
considerations in the overall hazard classification formula.
A copy of the updated map was provided to county planning departments throughout Oregon in April
2024. The preview was limited in scope and was intended to provide planning departments an
opportunity to identify what OSU and ODF described as "anomalies" within the draft map results.
https://olis.oregonlegislature.gov/liz/202lRl /Down loads/M easu reDocu ment/SB762/En rolled
2 https://olis oregonlegislature gov/liz/2023R1/Downloads/MeasureDocument/SB80/Enrolled
"Anomalies" were not categorically or statutorily defined, and thus it was left up to planning
departments to scrutinize the map results based on local knowledge to identify hazard classification
anomalies. ODF and OSU also requested spatial data for any development which has occurred since
approximately 2018 to help further refine the Wildland Urban Interface (WUI) boundary. The request
from ODF and OSU stated that any proposed revisions to the draft hazard classifications must be
based on property specific information and evidence such as aerial imagery, property photographs,
or other relevant materials. Staffs June 28, 2024 response to this request is included as Attachment
1 to this memorandum.
ODF and OSU staff are reviewing proposed revisions and comments from county planning
departments, as well as public comments, before releasing a final version of the hazard map to the
public on October 1, 2024.
Under SB 80, once the Statewide Wildfire Hazard Map is finalized, properties included in both a
designated WUI boundary and classified as high hazard will be subject to additional development
regulations. SB 80 requires that, at a minimum, local governments ensure that properties meeting
both of these classifications will be subject to:
1) Home hardening building codes as described in section R327 of the Oregon Residential
Specialty Code.
2) Defensible space standards as determined by the Oregon State Fire Marshal.
At present, the State Fire Marshal has yet to adopt final statewide defensible space requirements.
The current draft code is included as Attachment 2.
II. PUBLIC COMMENT OPPORTUNITIES
Wildfire Hazard Map Implications for Deschutes County
Attachment 3 spatially depicts the wildfire areas in Deschutes County. Attachment 4 disaggregates
the high hazard areas statistically by Urban Growth Boundaries, county zoning, and ownership.
Wildfire Hazard Map Public Comment Period
The updated wildfire hazard map was released to the public on July 18, 20243. This map release will
initiate a month -long public comment period for the general public to review and provide comments
to ODF on the map.
Wildfire Hazard Rulemaking Public Comment Period
The Board of Forestry approved a public hearing process for a proposed rule package to implement
the wildfire hazard maps during their June 5, 2024 meeting. See the notice of proposed rulemaking
3 https://orego.nexplorer.info/topics/wildfire-risk?ptopic=62
Page 2 of 3
for draft rule language. The department consulted a Rulemaking Advisory Committee representing a
wide variety of stakeholder interests while drafting the proposed rules.
These rules will be used by Oregon State University to address irrigated agriculture as a mitigating
factor to assess wildfire hazard in the Statewide Wildfire Hazard Map, which includes assigning one
of three hazard zones to individual properties. The rules also update definitions, notice requirements,
appeal options, and make other technical edits. Under the draft rules, any appeals of the wildfire
hazard maps must be filed with ODF within 60 days of the release of the final maps.
Comment can be made at any of the virtual public meetings below:
• July 31, 10 a.m., Zoom meetioZ
• July 31, 2 p.m., Zoom meeting
• Aug. 1, 6 p.m., Zoom meetinZ
Comments can also be sent to maprules@odf.oregon.gov until 5 p.m. on August 15, 2024.
III. BOARD CONSIDERATION
There are no specific decisions for the Board to make regarding the Statewide Wildfire Hazard Map
at this time. Members of the public may provide comments and ask questions concerning the draft
map by contacting ODF staff through their wildfire hazard map website4. Questions or comments
concerning the forthcoming defensible space and home hardening building standards can be
directed to the Oregon Office of State Fire Marshals and the Oregon Building Codes Divisions (within
the Department of Consumer and Business Services), respectively.
SB 80 states that county commissioners will have one additional meeting with ODF, arranged and
scheduled bythe Association of Oregon Counties (AOC), to review the latest map iteration and discuss
any outstanding concerns. A date for this meeting has not been finalized by AOC and ODF at this
time.
Attachments:
1. Memo: Review of the Draft Wildfire Hazard Map for Anomalies and Spatial Data Updates
2. Oregon State Fire Marshal provided Draft Defensible Space Code.
3. Draft Deschutes County Wildfire Hazard Maps
4. Property Statistics Summary from Draft Wildfire Hazard Map
4 https•//www oreLon gov/odf/fire/pages/wildfire-hazard.aspx
5 https://oregondefensiblespace.org/
6 https://www Oregon gov/bcd/codes-stand/Pages/wildfire-hazard-mitigation.aspx
Page 3 of 3
MEMORANDUM
TO: Andy McEvoy, Oregon State University, College of Forestry
FROM: Kyle Collins, Associate Planner
Kevin Moriarty, County Forester
DATE: June 28, 2024
SUBJECT: Senate Bill 80 - Review of the Draft Wildfire Hazard Map for Anomalies and Spatial
Data Updates
1. BACKGROUND
In April 2024, Oregon State University (OSU) made two requests from county planning directors and
their staff. OSU staff requested that by June 28, 2024, counties should:
1) Review the current draft of the Statewide Wildfire Hazard Map for anomalies in property -level
hazard classifications.
2) Provide spatial data which will help OSU fully map the wildland-urban interface (WUI) in
Oregon according to OAR 629-044-1011.
According to the initial request from OSU:
Anomalies are property -level hazard classifications that appear arbitrarily different to county
planners when compared to neighboring areas. An example of a potential anomaly is a single
taxlot classified as high hazard but surrounded by a large area assessed as entirely moderate
hazard taxlots.
Another example of an anomalous hazard classification might be a newly created gravel pit that
is classified as high hazard based on previous vegetation conditions. While previous vegetation
referenced during simulations may have been highly flammable, the gravel pit is essentially
unburnable and does not warrant a high hazard designation.
OSU further clarified the types of spatial data relevant to WUI designation which should be provided
if available:
1) Planned development which has been approved for development and which meets the
criteria of the WUI in OAR 629-044-1011, but was not originally mapped as part of the WUI; or
2) Completed development which meets the criteria for the WUI in OAR 629-044-1011, but that
was not originally mapped as part of the WUI.
Finally, OSU staff noted that they will evaluate all provided responses and, where appropriate and
permissible, incorporate the counties' data into an updated hazard map. As noted under Senate Bills
(SBs) 762 and 80, a final version of the hazard map (which is currently in draft form), will identify the
hazard classification of individual properties and the location of WUl boundaries on the landscape.
Structures included within both a high hazard classification and a designated WUI will be subject to
defensible space and fire hardening codes, to be determined by the Oregon State Fire Marshal and
the Department of Business and Consumer Services Building Codes Division respectively.
II. LIMITATIONS
The Deschutes County Community Development Department (CDD), which includes the Planning
Division, and the Deschutes County Forester greatly appreciate the opportunity to review the draft
hazard map to provide local knowledge and help ensure the greatest level of accuracy possible for
an incredibly complex spatial analysis. County staff acknowledge the difficulty of completing a project
of this scale and anticipated impact across a variety of jurisdictions and landscapes.
However, OSU staff should be aware that Deschutes County has numerous limitations in its ability to
respond to the requests outlined above. These limitations fall broadly into the following categories:
1) While OSU has attempted to provide a succinct description of what may constitute "anomalies"
in hazard classification, without a formal definition and framework it is difficult or impossible
to capture all possible issues within the draft hazard classifications.
2) The number of properties which county staff would likely consider "anomalies" measures in
the hundreds. Evaluating the sheer number of properties with potentially inconsistent hazard
classifications on a case -by -case basis would necessitate a much greater dedication of
resources than county staff was able to provide in the time allotted. This is especially true
given the specific limitations for identifying "anomalies" provided by OSU staff and discussed
in greater detail below.
3) OSU staff utilized building footprint spatial data to identify WUI boundaries on the draft hazard
map. County staff understands that this data was current as of approximately 2018-2019, and
thus the updated spatial data request would need to cover approximately the last 4-5 years
to provide current results. However, CDD does not capture specific spatial data which
identifies planned developments or building footprints in Deschutes County. Given this
limitation, county staff is unable to provide this level of analysis for development which may
have occurred in the previous 4-5 years. However, county staff has attempted to provide some
spatial data which may be useful for future iterations of the hazard map.
Page 2 of 12
III. REVIEW FOR ANOMALIES
OSU staff provided the following parameters for verifying "anomalies" and whether adjustments to
the draft hazard classification would be undertaken:
For OSU to review potential anomalies and consider adjusting, evidence of a potentially incorrect
property -level hazard designation needs to [sic] objective, verifiable, and address the four
mapping criteria in the directing legislation: "weather, climate, topography and vegetation."
Examples of evidence that will not be considered support for claim of an anomaly includes:
Personal anecdotes unaccompanied by verifiable evidence
Evidence premised on factors outside of the four mapping criteria. For example, defensible
space and home hardening characteristics are outside the mapping criteria and so a
potential anomaly cannot be premised on the fact that the property has significantly
mitigated hazard with defensible space (e.g., sprinklers, fire safe landscaping, etc.) or fire
hardening (e.g., cement siding, metal roof, etc.)
Given the hazard map development language included in SBs 762 and 80, county staff understands
the need for these limitations. However, as noted above, the number of individual properties
throughout Deschutes County which appear to have an anomalous hazard classification would
require significant and sustained effort by staff to review on a case -by -case basis and provide
evidence to justify a classification change. This expected effort is particularly pronounced when tools
such as standard aerial imagery may not accurately reflect concerns encountered through site visits
and on -the -ground experience from experts such as the Deschutes County Forester. Additionally,
both planning staff and the Deschutes County Forester have concerns that entire regions of the
county may in fact have anomalous hazard classifications based on local knowledge, recent fire
history, the discrepancy between fuel treatments on federal versus private lands, and the expected
increase in fire activity for Central Oregon for the coming decades'.
As county staff is unable to provide the level of detailed analysis requested by OSU in the time
allotted, the Deschutes County Forester and planning staff have provided the following themes which
we believe should be addressed in future iterations of the hazard map:
Theme 1: Communities appear to have been given moderate or low hazard classifications due
to adjacent USDA Forest Service fuel treatments.
The communities of primary concern are: Black Butte Ranch, Crosswater, Seventh Mountain/Widgi
Creek, River Canyon Estates, Sunriver, Three Creek Communities, and Woodside Ranch.
Most of these communities are forested, have high tree density, and variable homeowner compliance
of adequate defensible space. However, it appears that hazard classifications within these
communities have been influenced by fuel treatment projects on adjacent USDA Forest Service land,
' https://www climatehubs usda gov/hubs/northwest/topic/climate-change-and-wildfire-idaho-oregon-and-washington
Page 3 of 12
causing a majority of taxlots to be classified as moderate hazard. The hazard map analysis does not
appear to anticipate that wildfires could potentially start from within the communities themselves
and not necessarily within adjacent USDA Forest Service land. Additionally, available ladder fuels
within these communities are not adequately captured on the taxlots of concern.
Theme 2: Lack of representation of non-federal fuel treatments creates an inequitable
approach to determining wildfire hazard on a County -wide scale
As stated above, based on review of the draft hazard map, it appears that USDA Forest Service fuel
treatments have been captured as part of the hazard classification methodology. However,
numerous State, county, local, and private fuel treatments have not been represented in a similar
manner. If it is accurate that Forest Service fuel treatments have been included as part of the hazard
classification analysis, it is unclear why a discrepancy has been drawn between federal actions and
those undertaken by others.
To provide two examples:
1) The Bend Park and Recreation District and Tree Farm LLC fuel treatment areas on the City of
Bend's western boundary are currently classified as high hazard, but these areas appear to
meet the same ruleset and conditions as the Theme 1 communities of Black Butte Ranch,
Crosswater, Seventh Mountain/Widgi Creek, River Canyon Estates, Sunriver, Three Creek
Communities, and Woodside Ranch. Tree Farm and other homeowner associations in the
Westside Transect Zone on Bend's western edge have strict defensible space standards in
their architectural guidelines which must be maintained in perpetuity.
2) Numerous taxlots within the Tetherow Golf Course (part of the Tetherow Destination Resort)
which have been converted to golf courses, agricultural pastures, parks, or other cleared
features are currently classified as high hazard.
Theme 3: Flame length is not a good metric to determine fire intensity
Fire intensity in wildfire modeling is generally defined as the amount of BTU's per meter cubed. Two
fires can have the same flame lengths with very different intensities. Flame length is defined as the
average flame length of a flaming front.
Grass fuel models (GR4) and shrub models (GS2) appear to be used for the eastern portion of
Deschutes County. Whereas timber models (FM10, etc.) appear to be used on the western portion of
Deschutes County. Although flame lengths from grass and light shrub can exceed 8 feet, the
resistance to control is much lower than timber fires for the following reasons:
Grass fires are limited in duration and have a low chance of producing lofted embers.
• Shrubs and juniper woodlands generally produce short-range to mid -range spot fires (less
than 1/4 mile).
Page 4 of 12
• Croplands will generally produce short duration fires with limited to no spot fires if crops are
available to burn.
• The Rothermel fire spread model' is only a surface fire behavior model. Within the draft
hazard map, forested canopy fire does not seem to be a consideration when determining fire
intensity analysis.
Given these concerns, large numbers of taxlots in rangelands and farmlands have been classified as
high hazard and appear to show greater hazard than taxlots located in or near mature forest,
contrary to the available evidence regarding wildfire risk within forested landscapes.
Theme 4: The spatial datasets used in the draft map are outdated by several years
County staff notes that the draft hazard map identifies 102,451 taxlots within Deschutes County. As
of the date of this report, Deschutes County has 106,838 taxlots on record. It is unclear how the
remaining 4,387 taxlots will be assigned hazard classifications in the final version of the hazard map
slated for issuance in October 2024.
Theme 5: The hazard map appears broadly inconsistent based on previous fire history and on -
site knowledge
The draft map currently presented is inadequate in determining priority areas within Deschutes
County for hazardous fuel mitigation. Some of the communities classified as moderate hazard in
Theme 1 have the highest fire risk in Deschutes County deemed by the County Forester and other
fire experts from federal, state, and local fire protection organizations. For example, many
homeowners in Black Butte Ranch are currently unable to find fire insurance because insurance
companies have deemed this area as having extreme fire risk, however a majority of Black Butte
Ranch is currently classified as moderate hazard in the draft map.
Additionally, in areas containing juniper woodlands and rangelands, the draft map shows a
checkerboard type pattern between moderate and high hazard. Neighbors with similar landscapes
frequently have dissimilar classifications. Some taxlots have been completely converted from original
native vegetation and are not adequately captured in the hazard map.
Some examples of this general irregularity are demonstrated in the figures below. These examples
are not exhaustive but are intended to provide a snapshot of numerous inconsistencies within the
hazard map, both at a taxlot scale and at a regional level. These examples are spread across a wide
geographic area and appear to show:
• Moderate (or low) classification taxlots with identical vegetation and topography patterns to
surrounding areas composed mostly or entirely of high hazard classification taxlots.
2 https://\Nww.fs.usda.gov/research/treesearch/55928
Page 5 of 12
• Irrigated parcels which are classified as moderate hazard adjacent to irrigated parcels which
are classed as high hazard. Curiously, in several of these instances, aerial imagery appears to
show taxlots with recent and/or frequent irrigation receiving a high hazard classification
adjacent to parcels that appear to have similar or less irrigation activity with a moderate
hazard classification.
Page 6 of 12
Example 1
(;� Tumalo - Inconsistent Classification `
Page 7 of 12
Example 2
r) Sisters Area - Inconsistent Classification ;`
1' = 800'
Page 8 of 12
Example 3
} Fall River Area - Inconsistent Classification
Page 9 of 12
Example 4
Ci�i SE Bend Area - Inconsistent Classification
Page 10 of 12
Theme 6: Impacts to local fuel treatment programs
State -level hazard classifications may also drive prioritization for fuel treatments and funding
opportunities to create defensible space in rural communities throughout Deschutes County. It is
unclear if these hazard classifications will align with areas that have been prioritized by county staff
and local communities for future fuel treatment efforts.
Theme 7: LandFire3 was never intended to be used to determine Wildfire Hazard on a taxlot
level
LandFire data products consist of over 50 spatial data layers in the form of maps and other data that
support a range of land management analysis and modeling. For example, specific data layer
products include: Existing Vegetation Type, Canopy, and Height; Bio-physical Settings; Environmental
Site Potential; Fire Behavior Fuel Models; Fire Regime Classes; and Fire Effects layers.
The following links describe in greater detail the applicability and limitations of utilizing LandFire data
products for determining wildfire risk at a taxlot level:
• https://www.natureserve.org/sites/default/files/If fact sheet.pcif
• https://Iandfire.Rov/sites/default/files/documents/The LANDFIRE Proiect TNC Dub.pdf
As a general summary, the LandFire factsheet states the following:
LandFire products are designed to be used at a landscape -scale in support of strategic vegetation,
fire, and fuels management planning to evaluate management alternatives across boundaries.
LandFire National products are delivered at a 30-meter pixel resolution. The most effective use
of the products is at the landscape scale. Thus, applying LandFire data at an individual pixel level
or in small groups of pixels is not recommended.
It is county staffs understanding that certain data layers utilized within the draft hazard mapping
process are LandFire products or similar spatial datasets. Given the requirements from SBs 762 and
80 that individual taxlots be given hazard classifications, use of these datasets may produce
unintended or inaccurate results.
IV. WILDLAND URBAN INTERFACE (WUI) SPATIAL DATA
As noted above, Deschutes County does not compile or maintain spatial data associated with building
footprints and/or planned developments. However, county staff understands the general request to
provide additional data that may help fill in gaps regarding development activity which has occurred
since approximately 2019. As an intermediate step, staff has compiled spatial data for all properties
which have received development permits (i.e. - building permits) since 2019. This data does not
contain details such as the location of individual structures, but provides an overview of developed
3 https://Iandfire.gov/
Page 11 of 12
properties which may have not been captured in the original WUI analysis performed by OSU staff.
This data is included as an attachment to this memorandum.
Attachment:
1. Deschutes County - Spatial Data for Structures Developed Between 2019 and 2024
Page 12 of 12
CHAPTER 2
DEFINITIONS
User note:
About this chapter. Codes, by their very nature, are technical documents. Every word, term and punctuation
mark can add to or change the meaning of a technical requirement. It is necessary to maintain a consensus on
the specific meaning of each term contained in the code. Chapter 2 performs this function by stating clearly
what specific terms mean for the purpose of the code
SECTION 201
GENERAL
201.1 Scope. Unless otherwise expressly stated, the following words and terms shall, for the purposes of this code,
have the meanings shown in ORS 476.390 and in this chapter.
201.2 Interchangeability. Words stated in the present tense include the future; words stated in the masculine
gender include the feminine and neuter; and the singular number includes the plural and the plural the singular.
201.3 Terms defined in other codes. Where terms are not defined in this code and are defined in other
International Codes, such terms shall have the meanings ascribed to them as in those codes.
201.4 Terms not defined. Where terms are not defined through the methods authorized by this section, such terms
shall have their ordinarily accepted meanings such as the context implies.
SECTION 202
DEFINITIONS
ACCESSORY DWELLING UNIT (ADU). A residential structure that is used in connection with, or that is auxiliary
to, a single-family dwelling in accordance with ORS 215.501. ADU's must have adequate access for firefighting
equipment and be served by a fire protection service provider with professionals who have received training or
certification described in ORS 181A.410. [Section 301.1.1]
[A] APPROVED. Acceptable to the code official. [Section 302.4.1]
BEST MANAGEMENT PRACTICES. Means defensible space requirements specific to Oregon, and not contained
in the International Wildland-Urban Interface Code, in accordance with the best practices provisions of ORS
476.392. The Oregon Department of State Fire Marshal has included best management practices to establish the
minimum defensible space requirements of this code. Best management practices adopted locally must be
approved by the Oregon Department of State Fire Marshal in accordance with OAR 837-039-0006. Locally
adopted best management practices may be related to, species -specific concerns, special hazards, management
practices of recognized local, state, or national programs, or other relevant fuel modification concerns. [Section
105]
User note:
Local government may adopt requirements that address conditions that are of particular concern or interest in their area.
Amongst others, these could include the following areas:
• Species -specific. The requirements of the Oregon Defensible Space Code may not be practical for all vegetation,
including some trees or ground cover. For example, lodgepole pine trees are prone to blowing over in strong winds
without the protection of being grown in clusters. In other areas of the state the intensity and rate of fire spread created
by some highly volatile plant species such as rabbitbrush, juniper or sagebrush may be of local concern, while fire -
resistive species such as oak and maple may be of less concern.
• Special hazards. In some cases, locals may want to address hazards that are particularly prevalent in their jurisdiction.
An example would be areas where the heating of homes with firewood is especially common, and its storage is nearly
always within the defensible space. The adoption and enforcement of local requirements to mitigate this danger would
be appropriate.
• Recognized programs. Many established programs, at both the local, state, and national level, can provide greater
requirements than the minimum state-wide code provided by the Oregon Department of State Fire Marshal. Many
communities, particularly those in regions of the state prone to wildland-urban interface wildfires, have successfully
utilized programs such as Wildfire Ready (FEMA), Firewise USA (NFPA), Fire Adapted Oregon (OSFM), Project
Wildfire (Deschutes County), and many others.
Important: Draft copies of locally proposed amendments to the ODSC must be evaluated by the OSFM and comply with
the OAR 837-039-0006 process. The review will ensure that the proposed requirements are lawful, consistent with the
intent of the ODSC, and will be approved by local resolution.
[A] CODE OFFICIAL. The official designated by the jurisdiction to interpret and enforce this code, or the code official's
authorized representative in accordance with ORS 476.060. [Chapter 1, Section 302]
DEFENSIBLE SPACE. A natural or human -made area in which material capable of supporting the spread of fire has been
treated, cleared or modified to slow the rate and intensity of advancing wildfire and allow space for fire suppression operations
to occur. See also ORS 476.390.
FIRE -RESISTIVE VEGETATION. Plants with the characteristics compiled in Appendix F of this code that can be used to
reduce the likelihood of fire spread. [Section 302.5/App. F]
User note:
While no vegetation can be regarded as truly "fire -proof', and while all will burn under severe fire conditions, fire resistive
vegetation can lower that likelihood and severity.
There is a large variety of fire resistive vegetation that can be found commercially and assist an owner in an overall strategy to
modify the fuels on their property. This may include groundcovers such as kinnikinic and periwinkle, perennials such as iris
and lupine, shrubs such as azalea and rhododendron, and trees such as maple and crabapple.
Details are available at the Oregon Department of State Fire Marshal homepage. Additional resources are widely available
online, including:
• "Safer , from the start: A Guide to Firewise-Friendly Developments " published by the National Fire Protection
Association (NFPA).
• "Firewise Toolkit" published by the National Fire Protection Association (NFPA).
• "Fire -Resistant Plants.for Oregon Home Landscapes" published by the OSU extension service and the USDA.
• "Choosing the Right Plants for Northern Nevada's High Fire Hazard Areas " published by the University of Nevada
Reno Extension
• "Firewise Landscaping for Southern Idaho " brochure published by the Bureau of Land Management.
FIRE -RESISTIVE VEGETATION, NON. Flammable plants, including vegetative fuels, that ignite readily, can add to the
intensity of a wildfire and may increase its spread. Generally, these fuels have fine dry material such as twigs, leaves and
needles, or have high oil and resin content. [302.3, 402.2, 402.3]
FUEL MODIFICATION. A method of modifying fuel load by reducing the amount of nonTre-resistive vegetation or altering
the type of vegetation to reduce the fuel load. [Section 302]
HAZARD RATING. A numerical value describing the likelihood and intensity of a fire, based on specific factors or condi-
tions including weather, climate, topography, and vegetation. [Chapter 3 Scope]
LADDER FUEL. Branches, leaves, needles, and other combustible vegetation that may allow a wildfire to spread from lower
growing vegetation to higher growing vegetation. [Section 302.4]
MAP. The comprehensive statewide map that displays the five wildfire risk classes and populates Oregon Wildfire Risk Ex-
plorer, the official wildfire planning and risk classification mapping tool for the State of Oregon, coordinated by the Oregon
Department of Forestry. See ORS 477.027. [Chapter 1, Section 301 and 401.]
OTHER HUMAN DEVELOPMENT. Means essential facilities, special occupancy structures, or hazardous facilities as
defined in ORS 455.447 that support community functions, public communication, energy, or transportation. See OAR 629-
044-1005.[Throughout]
STRUCTURE. Means:
• A residential building that requires a Certificate of Occupancy.
• A commercial building that requires a Certificate of Occupancy.
• A manufactured dwelling that has received a Housing and Urban Development certification label (Insignia of Com-
pliance).
• A structure that has received a temporary Certificate of Occupancy under the state building code; or
• A structure constructed prior to adoption of the state building code, that would have required a Certificate of Occu-
pancy or Insignia of Compliance under the state building code, if one was not was obtained. [Throughout]
TREE CROWN. The primary and secondary branches growing out from the main stem, together with twigs and foliage.
[Sections 302.4]
VEGETATIVE FUELS. Means both live and dead plant material that constitute a wildfire hazard, including ladder fuels.
[Section 302.5. See also OAR 629-044-10051
WILDFIRE. An uncontrolled fire spreading through vegetative fuels, exposing and possibly consuming structures. [other
definitions]
WILDFIRE RISK. Means the wildfire impacts to values based on scientifically modeled wildfire frequency and wildfire
intensity. [Section 101, Section 302.2. See 629-044-1005]
WILDLAND. An area in which development is essentially nonexistent, except for roads, railroads, power lines and similar
facilities. [Sections 101, 301]
WILDLAND FUELS. Means natural vegetation that occurs in an area where development is essentially non-existent, includ-
ing grasslands, brushlands, rangelands, woodlands, timberlands, or wilderness. Wildland fuels are a type of vegetative fuels.
[Sections 101, 301]
WILDLAND-URBAN INTERFACE. Means a geographical area where structures and other human development meets or
intermingles with wildland or vegetative fuels. [Throughout]
CHAPTER 3
DEFENSIBLE SPACE
User note:
About this chapter: Chapter 3 establishes minimum fire protection requirements to mitigate the hazards to life and property from fire in the
wildland-urban interface. The chapter includes strategies to reduce the hazards of fire originating within a structure spreading to wildland
and fire originating in wildland spreading to structures and other human development. These requirements, and those in Chapter 4, are the
result of a law made effective by the Oregon Legislature July 19, 2021 and resulted in the creation of ORS 476.390 through 476.398.
SECTION 301
GENERAL
301.1 Scope. The provisions of this chapter establish general requirements statewide for all structures and other human devel-
opment on lands in the wildland-urban interface that are designated with a hazard rating of extreme or high risk, as identified
on the comprehensive statewide map facilitated by the Oregon Department of Forestry, and in accordance with ORS 476.392.
Exceptions:
1. Vineyards, crops, and other cultivated vegetation that are irrigated and maintained, or non -irrigated but maintained,
throughout the year.
2. Structures and other human development exempted under ORS 455.315.
ORS 455.315 is not a part of this code but is reprinted or paraphrased here for the reader's convenience:
ORS 455.315 provides for the exemption of the application of a state structural specialty code to agricultural
buildings such as structures used for storage of farm machinery, crops, forest products, or used as equine facilities.
301.1.1 Accessory dwelling units. Accessory dwelling units on lands in the wildland-urban interface that are desig-
nated with a hazard rating of extreme or high risk shall be in conformance with this section. Accessory dwelling units
not identified on the comprehensive statewide map must comply with any applicable local requirements for defensible
space established by a local government pursuant to ORS 476.392.
301.2 Intent. The intent of this chapter is to establish minimum requirements to mitigate the risk to life and property from
wildland fire exposures, exposures from adjacent structures and other human development, and to prevent structure fires from
spreading to wildland fuels.
SECTION 302
DEFENSIBLE SPACE REQUIREMENTS
302.1 Objective. Provisions of this section are intended to modify the fuel load in areas adjacent to structures and other human
development to create a defensible space.
302.2 Fuel modification. Structures and other human development located in areas designated as high risk or extreme risk in
accordance with OAR 629-044-1020 shall comply with the firel modification distances contained in Table 302.2. Distances
specified in Table 302.2 shall be measured on a horizontal plane from the perimeter or projection of the structure and other
human development as shown in Figure 302.2.
OAR 629-044-1020 is not a part of this code but is reprinted or paraphrased here for the reader's convenience:
OAR 629-044-1020 defines wildfire risk classifications by a range of wildfire hazard values that illustrate likely wildfire
behavior.
302.3 Responsible party. Persons owning, leasing, controlling, operating or maintaining structures and other human develop-
ment requiring defensible space are responsible for modifying or removing nonfire-resistive vegetation on the property owned,
leased or controlled by said person.
302.4 Trees. Trees are allowed within the defensible space provided they are in accordance with Sections 302.4.1 and 302.4.2
302.4.1 Tree spacing. Single trees, or approved groups of trees considered as a single crown, shall comply with at least
one of the following:
1. Trees with ladder fuels removed in accordance with Section 302.4.2 shall have the horizontal distance
between crowns of adjacent trees, structures and other human development, outlets of chimneys, and overhead
electrical facilities be not less than 10 feet (3048 mm). See Fig. 302.4.1(1)
2. Trees pruned to remove ladder fuels a minimum of 15 feet (4572 mm) above the ground shall be maintained
a minimum of 10 feet (3048 mm) above the surface of a roof and 10 feet from overhead electrical facilities and
outlets of chimneys. See Fig. 302.4.1(2).
302.4.2 Ladder fuel. Trees 18 feet or taller, the tree crowns within the defensible space shall be pruned to remove
limbs located less than 6 feet (1829 mm) above the ground surface adjacent to the trees. Trees less than 18 feet shall be
pruned to remove limbs equal to no more than 1/3 the trees height. To protect tree health, no more than 1/2 of the live
crown shall be required to be removed at one time.
302.4.2.1 Deadwood. Deadwood and litter shall be regularly removed from within trees and on the ground
around trees.
302.5 Ground cover. Where vegetative fuels, fire -resistive vegetation, or cultivated ground cover, such as green
grass, ivy, succulents or similar plants are used as ground cover, they are allowed to be within the designated
defensible space, provided that they do not form a means of transmitting fire from the native growth to any structure
or other human development.
For SI: I foot = 304.8 mm.
TABLE 302.2
REQUIRED DEFENSIBLE SPACE
WILDLAND-URBAN FUEL MODIFICATION DISTANCE
INTERFACE AREA (feet)
High risk 50
Extreme risk 100
FIGURE 302.2
MEASUREMENTS OF FUEL MODIFICATION DISTANCE
Unmodified
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CHAPTER 4
MAINTENANCE OF DEFENSIBLE SPACE
User note:
About this chapter. Chapter 4 provides the maintenance provisions of the Defensible Space requirements in Chapter 3 and may be cited for
enforcement purposes.
SECTION 401
GENERAL
401.1 Scope. The provisions of this chapter establish the general requirements statewide for maintenance of defensible space
on all lands in the wildland-urban interface that are designated as extreme or high risk, as identified on the comprehensive
statewide map facilitated by the Oregon Department of Forestry.
401.2 Intent. The intent of this chapter is to establish the minimum maintenance requirements required in Chapter 3.
SECTION 402
MAINTENANCE REQUIREMENTS
402.1 General. Defensible space required by Chapter 3 shall be maintained in accordance with this chapter. In addition to citing
a code specified herein, compliance notices shall also include a plain statement of the facts in consideration of Chapter 3 and in
accordance with Section 104.3.
402.2 Modified area. Nonfire-resistive vegetation or growth shall be kept clear of structures and other human development
in accordance with Chapter 3, in such a manner as to provide a clear area for fire suppression operations.
402.3 Responsibility. Persons owning, leasing, controlling, operating or maintaining structures and other human develop-
ment are responsible for maintenance of defensible spaces. Maintenance of the defensible space shall include modifying or
removing nonfire-resistive vegetation and keeping leaves, needles and other dead vegetative material regularly removed from
roofs of structures and other human development.
402.4 Trees. Trees shall be maintained in accordance with Section 302.4.
402.5 Ground cover. Ground cover shall be maintained in accordance with Section 302.5.
APPENDIX F
CHARACTERISTICS OF FIRE -RESISTIVE VEGETATION
This appendix is for information purposes and is not intended for adoption.
User note:
About this appendix: Appendix F is an informational appendix provided for the convenience of the code user. It is simply a compilation of
the eight characteristics of fire -resistive vegetation that can be used effectively within wildland-urban interface areas to reduce the likeli-
hood of fire spread through vegetation.
SECTION F101
GENERAL
F101.1 Characteristics of fire -resistive vegetation. All plants will burn under extreme fire weather conditions such as
drought. However, plants burn at different intensities and rates of consumption. Fire -resistive plants burn at a relatively low
intensity, slow rates of spread and with short flame lengths. The following are characteristics of fire -resistive vegetation:
1. Growth with little or no accumulation of dead vegetation (either on the ground or standing upright).
2. Nonresinous plants (willow, poplar or tulip trees).
3. Low volume of total vegetation (for example, a grass area as opposed to a forest or shrub -covered land).
4. Plants with high live fuel moisture (plants that contain a large amount of water in comparison to their dry weight).
5. Drought -tolerant plants (deeply rooted plants with thick, heavy leaves).
6. Stands without ladder fuels (plants without small, fine branches and limbs between the ground and the canopy of
overtopping shrubs and trees).
7. Plants requiring little maintenance (slow -growing plants that, when maintained, require little care).
8. Plants with woody stems and branches that require prolonged heating to ignite.
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Draft Statewide Wildfire Hazard Map - Deschutes County Estimates
The following tables estimate the properties within Deschutes County which are likely to be affected
by the Statewide Wildfire Hazard Map mandated under Senate Bill (SB) 762 and modified pursuant
to SB 80. They are based upon data obtained from Oregon State University (OSU) and the Oregon
Department of Forestry (ODF) in April 2024. Based on the draft nature of the data and missing details
such as local tax lot numbers, these estimates are subject to refinement and modification as new
information becomes available.
Table 1: Total High Hazard Destinations within WUI, Including UGBs
Properties 20,785
Acres 83,979
Table 2: Total High Hazard Destinations within WUI, Outside UGBs
Properties 17,385
Acres 77,094
Table 3: High Hazard Designation within WUI, Outside UGBs
Zoning
Properties
Black Butte Ranch (BBRR)
10
Exclusive Farm Use (EFU)
2,548
Forest Use (F1 /F2)
615
Multiple Use Agricultural (MUA10)
2,465
Open Space & Conservation (OS&C)
20
Rural Commercial (RC)
8
Rural Residential (RR10)
10,074
Rural Service Center (RSC)
11
Suburban Residential (SR 2.5)
64
Sunriver Single Family Residential District
(SURS)
8
Tumalo Residential 5 Acre Minimum
District (TUR5)
71
Tumalo Residential District (TUR)
18
Urban Area Reserve (UAR10)
970
Westside Transect (WTZ)
34
Table 4: Public Ownership, High Hazard Designation within WUI, Outside UGBs
Ownership
Properties
Acres
Local (Fire Districts, School District, etc.)
49
—276
County
201
—917
State
50
—647
Federal
637
-8,153
Page 2 of 2
�01 E S co
G2� BOARD OF
COMMISSIONERS
MEETING DATE: July 24, 2024
SUBJECT: Deliberation #2: Deschutes County 2040 Comprehensive Plan Update -
Chapter 5, Natural Resources
RECOMMENDED MOTION:
Provide direction to staff on revisions to Chapter 5 of the draft Deschutes County 2040
Comprehensive Plan.
BACKGROUND AND POLICY IMPLICATIONS:
The Board of Commissioners will conduct deliberations in consideration of the draft
Deschutes County 2040 Comprehensive Plan. The full record is located on the project
website: https://www.des_ch_utes.ors/cd/page/247-23-000644-pa-deschutes-county-2040-
comprehensive-plan-update-hearing=page.
BUDGET IMPACTS:
None
ATTENDANCE:
Nicole Mardell, AICP, Senior Long Range Planner
Will Groves, Planning Manager
Peter Gutowsky, Community Development Director
Stephanie Marshall, Senior Assistant Legal Counsel
MEMORANDUM
TO: Deschutes County Board of County Commissioners ("Board")
FROM: Nicole Mardell, AICP, Senior Planner
Will Groves, Planning Manager
DATE: July 17, 2024
SUBJECT: Deliberation #2: Deschutes County 2040 Comprehensive Plan Update -
Chapter 5, Natural Resources
On July 24, 2024, the Board will deliberate Chapter 5 of the Deschutes County 2040
Comprehensive Plan (2040 Plan), pertaining to Natural Resources (Attachment A). Staff
provides a brief background on the process, items recommended to remain in a "parking lot"
that will ultimately inform an action plan, and notable testimony. During this meeting, the
Board will be asked to provide recommended text, goal, and policy revisions for
incorporating in the final document.
I. PROPOSAL
This is a legislative text amendment to repeal and replace the 2030 Comprehensive Plan,
adopted in 2011, with the 2040 Plan. No zoning or comprehensive plan map amendments
are being considered, nor are any changes to the County's adopted Goal 5 inventories
pertaining to significant natural resources, scenic views, open spaces, mineral and aggregate
sites, and historic and cultural resources.
The full record is included on the project hearing page:
https://www deschutes org/cd/page/247-23-000644-pa-deschutes-county-2040-
comprehensive-plan-update-hearing=page.
II. BACKGROUND
The 2040 Plan provides background information, a summary of community considerations,
and overarching goal and policy guidance pertaining to key issues facing the county. The
Board held public hearings to gather testimony for the 2040 Plan on April 10, 2024, in Bend';
1 https•//www deschutes org/bcc/page/board-county-commissioners-meeting-162
April 23 in Sunriver2; and April 30 in Sisters3; and May 8 in Bend 4. At the conclusion of the
May 8 hearing, the Commission voted to close the oral record, leave the written record open
until May 30, and commence deliberations at a subsequent meeting.
Staff held a work session with the Board on June 101 to discuss the process for deliberating
the 2040 Plan, ultimately determining to perform an extensive review of the following four
chapters:
• July 22: Chapter 3, Farm and Forest Resources
• July 24: Chapter 5, Natural Resources
• July 29: Chapter 7, Natural Hazards
• August 5: Chapter 11, Unincorporated Communities and Destination Resorts.
The Board may choose to conduct additional deliberations if needed. At each one,
commissioners will discuss preferred edits to chapter narratives, goals, and policies.' Staff
will be seeking consensus from the Board. Some issues may warrant a vote.
Parking Lot
During the June work session, staff introduced the concept of a "parking lot" for items that
may be outside the scope of the 2040 Plan. This includes items that are one-time actions
more fitting for a subsequent action plan or those that are potentially precluded by state
law. They are listed in Attachment B. Staff recommends the Board table them during
deliberations, and instead include the list as an attachment to the adopted 2040 Plan. The
Board can then discuss them in greater detail through the development of an action plan.
111. KEY ISSUES FOR CONSIDERATION
Chapter 5, Natural Resources was selected due to numerous public and agency comments.
To aid in the Board's discussion, a high-level summary of topics raised in the record are listed
below':
2https•//www deschutes org/bcc/page/public-hearing-2020-2040-comprehensive-plan-update
3 https•//www deschutes org/bcc/page/public-hearing-2020-2040-comprehensive-plan-update-0
4 https•//www deschutes org/bcc/page/2020-2040-comprehensive-plan-update-public-hearing
5 http_s•//www deschutes org/bcc/page/board-county-commissioners-meeting-175
6 Scrivenor's errors and technical edits do not need to be discussed as part of the deliberations process. Staff
will compile a list to update in the final draft of the document.
This list does not include items that are considered to be one-time actions, outside the scope of the plan, or
potentially precluded by state law. Those items are listed separately in Attachment A "Parking Lot"
Page 2 of 4
General Comments
• Protect against environmental pollutants and add policies related to environmental
justice.
• Protect significant trees.
• Protect individual rights to develop property, pursue incentives over regulations.
• Strengthen protections for natural resources.
• Increase coordination with Confedered Tribes of Warm Springs on natural resource
issues and understanding of treaty rights.
• Remove references to coordination with Confederated Tribes of Warm Springs.
• Remove or add qualifier to climate change related statements.
• Include additional information on impacts of climate change on natural resources.
Water
• Work with Oregon Water Resources Department to identify groundwater protection
areas and additional restrictions on development, if needed.
• Retain deleted policy which considers potential impacts to water quality and
availability for large scale developments.
• Remove policy supporting Oregon Water Resource Department (OWRD)'s efforts to
modernize groundwater allocation rules.
• Add language to encourage conservation of water and financial incentives for
property owners.
• Incentivize and provide funding for upgrades to irrigation equipment for farming
operations.
• Ensure adequate water availability for farming.
• Limit use of irrigation water for uses outside of farming.
• Limit water waste associated with agriculture.
• Explore measures to ensure adequate water forjunior water right holders and wildlife
habitat.
• Establish process to analyze development impacts on aquifer.
• Develop a comprehensive water plan for the County.
Amend "reservoir", "water use", and "water resources" sections to include more up to
• date information.
• Create new surface water narrative section.
• Include reference to Oregon spotted frog.
• Provide information on role of Oregon Health Authority in water management.
• Address water quality issues in southern Deschutes County.
• Remove reference to support of the Upper Deschutes Basin Habitat Conservation
Plan.
Wildlife
• Prioritize protection and restoration of wildlife and habitat over other uses.
• Revisit mule deer inventory update process.
Page 3 of 4
• Update inventories and protections for wildlife at regular intervals to incorporate best
information.
• Protect migration corridors for wildlife.
• Incentivize or require clustering of development to reduce impacts to wildlife.
• Explore education and incentives for wildlife protection.
• Balance tourism with wildlife impacts.
• Encourage efforts to obtain specialty knowledge among staff related to wildlife and
other topics.
• Acknowledge the connection between retention of resource land and benefits to
wildlife habitat.
• Analyze impacts to wildlife as part of energy development processes.
• Increase references to predation in narrative.
• Pursue incentives over regulations to protect wildlife habitat.
Scenic Views and Open Spaces
• Support development of dark skies program.
• Protect open spaces from development.
• Remove policies related to view protection along Highway 97.
IV. NEXT STEPS
Staff seeks direction from the Board on preferred edits to this chapter. Following the
discussion, staff will integrate them into a final version of the 2040 Plan for adoption.
The Board's next deliberation is scheduled for Monday, July 29 to discuss Chapter 7, Natural
Hazards.
Attachments:
A. Chapter 5, Natural Resources
B. "Parking Lot" Issues
Page 4 of 4
Opportunities, Challenges, and Considerations
Natural resources in Deschutes County are abundant. Wildlife, scenic views of forests
and peaks, and open spaces to preserve habitat and native vegetation are among the
County's top assets.
Oregon Statewide Planning Goal 5 governs Natural Resources, Scenic and Historic Areas,
and Open Spaces. Through this goal, the County maintains inventories and regulatory
protections to preserve these many resources. These regulations are created by
weighing Economic, Social, Environmental, and Energy (ESEE) consequences associated
with protection of a resources.
Topics covered in this chapter include:
• Protected Wildlife Resources
• Open Space and Scenic Views
• Water Resources
PROTECTED WILDLIFE RESOURCES
Deschutes County has some of the broadest
and most robust wildlife protections in the
state, covering a variety of species. The County
has development protections within and
surrounding numerous wildlife habitats. Some
of these habitats have mapped geographic
boundaries such as Deer Winter Range, Deer
Migration Range, Antelope Habitat, Golden Eagle
- Sensitive Bird Habitat, and Elk Habitat.
Other species are commonly found in protected
riparian areas, such as wetlands and floodplains.
Deschutes County contains general habitats for
fish, fur -bearing animals, waterfowl, and upland
game birds.
A continued challenge to wildlife resources is
rural development and impacts on habitat. Mule
deer are seeing steady declines, approximately
10% each year per Oregon Department of
5-2 1 Deschutes County Comprehensive Plan
Fish and Wildlife biologists. These declines
in population are due to a variety of factors,
including but not limited to loss of habitat,
predation, and disease.
SCENIC VIEWS AND OPEN SPACE
The 2010 Greenprint for Deschutes County listed
protection of scenic viewsheds as one of the
top five community priorities for conservation
in the rural County, and the protection of
open space has been one of the key topics of
discussion during the most recent update of this
Comprehensive Plan. The County has several
designated scenic corridors, including several
scenic bikeways, highways, and wild and scenic
river sections.
With close to 80% of the County under public
ownership, many community members enjoy
access to natural resources on public lands. A
perennial issue among community members is
Natural Resources
preserving scenic views and open spaces closer
to home on undeveloped private properties.
WATER RESOURCES
The high desert climate of Central Oregon
poses many challenges with water supply and
allocation.
A 2021 report by the Oregon Department of
Water Resources found that groundwater levels
through Deschutes County are declining, by as
much as 50 feet of total decline in the central
part of the basin. This decline is considered
"excessively declined" per state statute and
is attributed toward a shift in overall drier
conditions since the late 1990s, a warming
trend in the basin, and decreased snowpack.
To address these issues, irrigation districts and
other entities are engaged in ongoing efforts to
pipe canals and modernize irrigation systems
to increase their efficiency. Due to water
transmission losses in irrigation canals from
seepage into groundwater and evaporation,
piped canals typically require only half the
amount of water to be diverted from the river
or stream to deliver the same volume of water
to the end user compared to open canals.
Community members have expressed concern
that piping canals contribute to aquifer declines.
Deschutes County plays a coordination role
along with the Oregon Department of Water
Resources, irrigation districts, water users, and
owners of private wells to address these water
resource issues.
Wildlife diversity is a major attraction of
Deschutes County. The key to protecting wildlife
is protecting the habitats each species needs
for food, water, shelter, and reproduction. Also
important is retaining or enhancing connectivity
between habitats to protect migration routes
and avoid isolated populations.
5-3 1 Deschutes County Comprehensive Plan
FJ,awral Resources
In considering wildlife habitat, counties rely
on the expertise of the Oregon Department
of Fish and Wildlife (ODFW) and U.S. Fish and
Wildlife Service (USFWS). Those agencies provide
information for the required wildlife inventory
and recommendations on how to protect wildlife
habitat on private lands.
A summary of Deschutes County's wildlife
protection programs follows:
MULE DEER
Migration corridors and winter range are
essential habitats needed to support mule
deer in Deschutes County. The Bend/La Pine
migration corridor is approximately 56 miles
long and 3 to 4 miles wide and parallels the
Deschutes and Little Deschutes Rivers. The
corridor is used by deer migrating from summer
range in the forest along the east slope of the
Cascades to the North Paulina deer winter
range. Deschutes County adopted a "Deer
Migration Priority Area" based on a 1999 ODFW
map submitted to the South County Regional
Problem Solving Group. This specific sub -area is
precluded from destination resorts.
From 2021-2023, Deschutes County explored
an update to the county's mule deer inventory,
which included extensive community
participation including through the public record.
Ultimately, the decision was made not to update.
A snapshot of Deschutes County's wildlife
protection program is included below. Extensive
information is included in Appendix E, the
County's Goal 5 inventory.
SENSITIVE BIRDS
Nest sites for the bald eagle, osprey, golden
eagle, prairie falcon, great grey owl, greater
sage -grouse, and great blue heron rookeries are
inventoried by the County. The area required
for each nest site varies between species. The
minimum area required for protection of nest
sites has been identified by the ODFW in their
management guidelines for protecting colony
5-4 1 Deschutes County Comprehensive Plan
nesting birds, osprey, eagles, and raptor nests.
The USFW works closely with ODFW on eagle -
related issues and enforces federal guidelines to
ensure protection of bald and golden eagles.
ELK
The Land and Resource Management Plan for
the Deschutes National Forest identifies 6 key
elk habitat areas in Deschutes County. The
ODFW also recognizes these areas as critical elk
habitat for calving, winter or summer range. The
following areas are mapped on the Big Game
Habitat Area map and in the Deschutes National
Forest Land and Resource Management Plan:
• Tumalo Mountain
• Kiwa
• Rya n
• Crane Prairie
• Fall River
• Clover Meadow
ANTELOPE
The Bend and Ochoco District offices of the
ODFW provided maps of the antelope range
and winter range. The available information
is adequate to indicate that the resource is
significant. The antelope habitat is mapped on
Deschutes County's Big Game Habitat -Wildlife
Area Combining Zone Map.
Klatural Resources
Deschutes County has a rich abundance of open
space. Open spaces are generaliv undeveloped
areas that are being maintained for some other
purpose, such as farms, parks, forests, or wildlife
habitat. Besides the value that stems from the
primary use of the land, open spaces provide
aesthetically pleasing undeveloped landscapes.
Because these areas are undeveloped, they
also provide additional benefits such as water
recharge, buffers from habitat, and safety zones
from natural hazards such as flooding.
Open spaces and scenic views are an important
draw for visitors and are often mentioned
as important to the area's quality of life. The
backdrop of the Cascade Mountains, with its vast
forest and sagebrush landscapes and riparian
and wetland habitats, all provide an inspirational
setting for visitors and residents alike. Statewide
Planning Goal 5 recommends, but does not
require, creating an inventory and protections
for open spaces, scenic views and sites. Oregon
Administrative Rule (OAR) 660-023 defines open
space designations as parks, forests, wildlife
preserves, nature sanctuaries, and golf courses.
Open spaces are protected through an Open
Space and Conservation map designation
and zoning district. Scenic view protection
is implemented through the Landscape
Management Combining Zone regulations.
Deschutes County's Role in Water Management
is described below.
REGULATORY AGENCIES
The primary state regulator of water
availability is the Oregon Water Resources
Department (OWRD). The Oregon Department
of Environmental Quality (DEQ) leads the
monitoring and enforcement of water quality
standards. The Oregon DEQ is required
to comply with the Federal Environmental
Protection Agency. Numerous sections of the
5-5 1 Deschutes County Comprehensive plan
Deschutes River in Deschutes County hold a
special status as a federal wild and scenic river,
as well as a state scenic waterway. These areas
carry additional regulations through the 1996
Upper Deschutes Wild and Scenic River and State
Scenic Waterway Comprehensive Plan, requiring
additional agency coordination with the Oregon
Parks and Recreation Department and the US
Forest Service on development impacting these
sections.
STATEWIDE PLANNING GOALS
There are two Statewide Planning Goals relating
to the protection of water resources. Goal 5
(Natural Resources, Scenic and Historic Areas,
and Open Spaces) requires an inventory and
protection of the following water resources.
In Deschutes County, these inventories have
been completed and acknowledged by the Land
Conservation and Development Commission
(See Appendix A for Goal 5 Inventories). Goal 6
(Air, Land, and Water Resources Quality) requires
comprehensive plans to be consistent with state
and federal pollution regulations. Accordingly,
it is imperative that local land use policies align
with Federal and State laws governing the
community's water resources.
Natup,M Resources
The policies in this section relating to water
provide the framework for evaluating land
use actions and define the responsibility of
the County to work in partnership with cities,
agencies, non -profits and others to achieve
efficient use of water resources and effective
management of water quality in the Upper
Deschutes Basin.
It is important to underscore that the primary
water resource management process occurs
outside of the state land use planning system.
Oregon land use and water management
are not integrated; there are no overarching
administrative rules that consider statewide
water management in conjunction with land use
planning.
WATER USE
The Deschutes aquifer has a recharge rate of
roughly 3 million acre feet per year. The current
water usage comes to roughly 720 thousand acre
feet per year. Roughly 40 to 50 thousand acre
feet of that water goes toward municipal and
non-agricultural use, while the remaining goes
toward crop and pasture irrigation. The majority
of that municipal water use goes towards
outdoor watering (gardens, sports fields, etc.).
As an example: the City of Bend uses 5 times as
much water in the summer as in the winter.
SNOWPACK
Although there is expected to be a slight
increase in winter precipitation by the middle
of the century, snowpack is expected to decline
throughout the Cascades. The decline in
snowpack (which has already been observed,
see figure below)' is due largely to increasing
temperatures causing some precipitation to fall
as rain rather than snow. This has the double
effect of decreasing snowfall and melting the
previously fallen snow. At the Mt Bachelor Ski
Resort, April snowpack is expected to decline
between 11 % and 18% by the middle of the
1 Adapted from Mote, P.W., Li, S., Lettenmaier, D.P. et al.
Dramatic declines in snowpack in the western US. npj Clim Atmos Sci
1, 2 (2018). https://doi.org/l0.1038/s41612-018-0012-1
5-6 1 Deschutes County Comprehensive Plan
century and between 18% and 43% by the end of
the century.
LAVA SPONGE
Deschutes county is fortunate to be underlain
on the Western side by relatively young volcanic
lava sponge. This sponge is highly porous and
is able to absorb large quantities of water
during the wet season and gradually release it
via abundant springs along the eastern slope.
The great advantage this provides is that the
resulting summer flows into the Deschutes
basin are not as dependent on overground flow
of snowmelt, and therefore are expected to
maintain a relatively stable water supply even as
snowpack decreases into the next century.
GROUNDWATER
The groundwater aquifer is roughly 1000 feet
thick and is replenished yearly by the Cascades'
precipitation. Recent years of "exceptional
drought" have lowered the aquifer level by
roughly 30 feet, resulting in a small percentage
of wells running dry, and raising concerns about
available groundwater for new developments.
Although it is likely that some wells will need
to be deepened to cope with increasing
temperatures and drought frequency, there is
likely to remain ample sustainable groundwater
supply.
M. • ' ML IF- •
Natural Resources
Because the groundwater in the Deschutes Basin
is directly connected to the flow of the Deschutes
River, all additional groundwater use must be
mitigated by decreased use of groundwater
elsewhere through the Oregon Water Resources
Department's Deschutes Groundwater Mitigation
program. This can include retiring of other water
rights, or the release of water into the waterway.
A mitigation permit must be obtained before a
new groundwater right can be accessed. 2
Generally, groundwater quality in Deschutes
County is generally classified as being'good,'
providing high quality drinking water to most
of its residents. However, several productive
aquifers lie in shallow alluvial sediments that
are vulnerable to contamination from human
activities and development.
The Department of Environmental Quality
(DEQ) Laboratory and Water Quality Divisions'
Groundwater Quality Report for the Deschutes
Basin (March 2006) identifies areas of concern
for groundwater contamination based on
various sources of data and groundwater quality
studies. Based on collected data, development
patterns and the geology of the underlying
aquifer, the report makes recommendations
for a couple of areas in the County. The report
notes the groundwater aquifer in the Redmond
area is vulnerable to contamination from human
activities and recommends further study by the
DEQ. The La Pine aquifer in the southern portion
of the county from the Sunriver area to the
Klamath County line between Newberry Caldera
and the Cascades is an area of particular concern
because of data collected through several
studies and the high level of development in the
area. The report also identifies underground
injection systems that could contaminate the
aquifer with pollutants from stormwater drywells
or sewage drillholes.
In South Deschutes County, the concern
for groundwater quality arises from nitrate
2 Information from the Oregon Water Resources Board
Mitigation Program.
5-7 1 Deschutes County Comprehensive Plan
h,Aatural Resources
ce
contamination associated with on -site
wastewater treatment (septic) systems
discharging to the shallow unconfined aquifer.
The issue is small lots with highly permeable
rapidly draining soils and a high groundwater
table with relatively cold water temperatures.
Combined with the fact that the majority of lots
are served by on -site wastewater treatment
systems and individual wells, concern arose
that nitrates from the septic systems could
contaminate local wells and the river system.
Considerable work has gone into studying the
groundwater in South County. In 1999 Deschutes
County and the Department of Environmental
Quality (DEQ) identified the need for a better
understanding of the processes that affect
the movement and chemistry of nitrogen in
the aquifer underlying the La Pine area. In
response, the U.S. Geological Service (USGS), in
cooperation with Deschutes County and DEQ,
began a study to examine the hydrologic and
chemical processes that affect the movement
and chemical transformation of nitrogen within
the aquifer. A primary objective was to provide
tools for evaluating the effects of existing
and future residential development on water
quality and to develop strategies for managing
groundwater quality.
Field research from the USGS study shows
that in a 250-square-mile study area near
La Pine the groundwater underlying the La
Pine sub -basin is highly vulnerable and being
polluted by continued reliance on traditional
onsite systems. Environmental impacts from
residential development include higher nitrate
concentrations in groundwater that is tapped
for domestic water supply and discharges to
rivers. Nitrates are regulated by the federal
Environmental Protection Agency and DEQ as
a human health concern. Vulnerability of the
shallow aquifer to contamination led to concern
that wastewater from septic systems poses a
threat to the primary drinking water supply and
local river systems. The Upper Deschutes and
5-8 1 Deschutes County Comprehensive Plan
Little Deschutes Sub -basins have abundant,
natural sources of phosphorus from volcanic
soils and rocks so the rivers are naturally
nitrogen limited. Nitrogen -limited rivers are
sensitive to low concentrations of available
nitrogen until some other component becomes
limiting, and that may lead to ecological impacts.
In 2008 the County used the research on nitrates
to adopt a'local rule'that required South County
residents to convert their septic systems over
a period of 14 years to alternative sewage
system technology designed to reduce nitrates.
New septic systems were also required to use
alternative technologies. The County created
a process to assist residents in funding the
conversions.
Many South County residents expressed concern
over the costs involved with converting their
septic systems and disputed the science behind
the rule. Placed on the ballet by petition, the
local rule was rescinded by voters in March 2009.
As of 2010 the DEQ is leading the effort to
address nitrates in South County, with the
full cooperation of the County. One solution
being considered is creating a sewer system or
extending Sunriver's to serve some of the nearby
areas. Sewer systems are tightly restricted
on rural lands by Statewide Planning Goal 11
and OAR 660-11, so the Department of Land
Conservation and Development is also involved
in these efforts.
RESERVOIRS
The majority of the irrigation in Deschutes
County comes from reservoirs. These reservoirs
are primarily spring fed from the Cascades.
Reservoirs serve the dual purpose of supplying
water for irrigation and ensuring sufficient
streamflow in the lower Deschutes River.
Regional droughts in recent years have resulted
in lower water levels in these reservoirs.
Natural Resources
ALGAL BLOOMS
Algal blooms have been a problem for
recreational lakes in the cascade mountains in
recent years. Since 2007, the Wickiup Reservoir,
Crane Prairie Reservoir, and Paulina Lake have
experienced algal or bacteria blooms that
required a health advisory.3
Although not all algal blooms are toxic,
they interfere with recreation and aesthetic
enjoyment. In general, algal blooms are caused
by elevated nutrients, elevated temperature,
and still water. Algal blooms in other parts of
the state have led to drinking water concerns,
but Deschutes County cities are supplied by
groundwater and so the risk in algal blooms is
mainly to recreation.
3 https://www.Oregon.gov/oha/PH/HEALTHYENVIRONMENTS/
RECREATION/HARMFU LALGAEBLOOM S/Pages/archive.aspx
5-9 1 Deschutes County Comprehensive Plan
Key Community Considerations
Natural resources for recreation, passive
enjoyment, habitat protection, and economic
production are a fundamental part of life in
Deschutes County, and as such were a key
part of the community conversation in this
Comprehensive Plan update. Highlights of this
conversation include:
Concern about the ability of the County's
water supply to accommodate more
residents, visitors, and water -intensive jobs
in the future
Interest in a re-evaluation of water rights
for urban, agricultural, and "hobby farm"
uses.
A robust discussion around wildlife
inventories, habitat conservation, open
space regulations, and impacts on private
property owners.
The topic of habitat conservation and water
availability came up frequently, with most
participants saying that further protections are
needed. However, there was also recognition
of the burden these protections may put on
property owners. Deschutes County does not
have the authority or expertise to reevaluate
water rights as part of its land use planning
efforts, leading the County to instead work with
the Oregon Department of Water Resources,
irrigation districts, and holders of water rights
to increase the efficiency of water distribution
throughout the community.
Natural Resources
Goals and Policies
Goal 5.1: Support regional, comprehensive water
management solutions that balance the diverse
needs of water users and recognize Oregon
water law.
Policy 5.1.1. Participate in Statewide and
regional water planning including, but not
limited to:
a. Work cooperatively with appropriate
federal, state, tribal and local agency
resource managers, such as The
Confederated Tribes of the Warm Springs
Reservation of Oregon, the Oregon Water
Resources Department (OWRD), irrigation
districts, and other stakeholders and
nonprofit water organizations, such as
the Deschutes Basin Water Collaborative,
the County Soil and Water Conservation
District;
b. Support the development and
implementation of Upper Deschutes Basin
Study, Habitat Conservation Plan, and
Biological Opinion from National Marine
Fisheries Service for the middle and lower
Deschutes Rivers.
Policy 5.1.2. Support grants for water system
infrastructure improvements, upgrades, or
expansions.
Policy 5.1.3. Develop better understanding
of The Confederated Tribes of the Warm
Springs Reservation of Oregon's treaty -
protected rights to co -manage the water
resources of the Deschutes Basin.
Policy 5.1.4. Encourage state agencies to
identify local areas of concern for water
availability and explore additional regulations
or requirements to ensure water capacity is
not negatively impacted by development.
5-10 1 Deschutes County Comprehensive Plan
Goal 5.2: Increase water conservation efforts.
Policy 5.2.1. Support efficient water use
through targeted conservation, educational
and, as needed, regulatory or incentive
programs.
a. Encourage new development incorporates
efficient water use practices for all water
uses.
b. Encourage the reuse of grey water for
landscaping.
c. Encourage and educate the community
about the relative impacts of thinning or
reduction of plant species that adversely
impact forest health, water availability, and
soil quality.
d. Encourage and educate the community
about on -farm efficiency measures,
including upgrades to equipment.
e. Encourage and educate the community
about use of voluntary metering of water
use to monitor seasonal impacts on water
use.
Provide access to educational materials
and tools related to water conservation
including publications, information about
grant opportunities, and/or partner with
organizations on educational events.
g. Encourage and educate community
members on stewardship of wetlands and
waterways.
h. Provide access to educational materials
about water -wise gardening and
xeriscaping.
Policy 5.2.2. Promote coordinated
regional water conservation efforts and
implementation by regional, tribal, and
local organizations and agencies, including
increasing public awareness of and
implementing water conservation tools,
incentives, and best practices.
Policy 5.2.3. Support conservation efforts
by irrigation districts, property owners and
other water users, including programs to
provide incentives for water conservation,
such as piping of canals and laterals, water
banking, exchanges of water rights, voluntary
transfers of in -stream flows, onsite efficiency
measures, and other means.
Goal 5.3: Maintain and enhance a healthy
ecosystem in the Deschutes River Basin.
Policy 5.3.1. Notify the Oregon Department
of State Lands, The Confederated Tribes of
the Warm Springs Reservation of Oregon,
and other state and federal agencies as
appropriate -of any development applications
for land within a wetland identified on the
statewide wetland inventory maps.
Policy 5.3.2. Work with The Confederated
Tribes of Warm Springs Reservation of
Oregon and other federal, state, and local
agency resource managers to restore,
maintain and/or enhance healthy river and
riparian ecosystems and wetlands, including
the following:
a. Cooperate to improve surface waters,
especially those designated water quality
impaired under the federal Clean Water
Act;
b. Support research on methods to restore,
maintain and enhance river and riparian
ecosystems and wetlands;
C. Support restoration efforts for river and
riparian ecosystems and wetlands;
d. Inventory and consider protections for
cold water springs;
e. Evaluate waterways in coordination with
OPRD for possible designation under the
Scenic Waterways program;
5-11 1 Deschutes County Comprehensive Plan
f. In collaboration with appropriate federal,
state, tribal and local agency resource
managers stakeholders, map channel
migration zones and identify effective
protections;
g. Develop comprehensive riparian
management or mitigation practices that
enhance ecosystems, such as criteria
for removal of vegetation that adversely
impacts water availability and soil health.
Policy 5.3.3. Support studies of the
Deschutes River ecosystem and incorporate
strategies from current watershed studies
that provide new scientific information and
indigenous knowledge about the Deschutes
River ecosystem.
Policy 5.3.4. Support educational efforts
and identify areas where the County could
provide information on the Deschutes River
ecosystem, including rivers, riparian areas,
floodplains and wetlands.
a. Support efforts to educate property
owners to understand regulations
pertaining to rivers, riparian areas,
floodplains and wetlands.
Policy 5.3.5. Revisit recommendations
Of 1996 Upper Deschutes Wild and
Scenic River and State Scenic Waterway
Comprehensive Plan, or its successor, and
consider implementation of voluntary
recommendations into the county code
Goal 5.4: Maintain and enhance fish and
riparian -dependent wildlife habitat.
Policy 5.4.1. Coordinate with The
Confederated Tribes of Warm Springs
Reservation of Oregon and other federal,
state, and local agency resource managers
and stakeholders to protect and enhance
fish and wildlife habitat in river and riparian
habitats and wetlands.
Policy 5.4.2. Promote healthy fish
Populations through incentives and
education.
PDlicy 5.4.3. Support healthy native salmonid
fish populations through coordination with
stakeholders, including, but not limited to,
The Confederated Tribes of the Warm Springs
Reservation of Oregon and other federal,
state, and local agency resource managers
who provide fish habitat management and
restoration.
a. Review, and apply where appropriate,
strategies for protecting fish and fish
habitat for native salmonid species.
b. Promote native salmonid species
recovery through voluntary incentives
and encouraging appropriate species
management and associated habitat
conservation and restoration.
Policy 5.4.4. Update and implement policies
to support federally approved Habitat
Conservation Plans for species listed under
the Endangered Species Act
a. Spawning and rearing areas for salmonid
species should be considered significant
habitat and should be protected in rivers
and streams.
b. Cooperate with covered parties in
restoring or enhancing spawning and
rearing areas for salmonid species, where
feasible.
C. Support efforts to address riparian
restoration associated with streamflow
management under approved plans.
PDlicy 5.4.5. Use a combination of incentives
and/or regulations to avoid, minimize, and
mitigate development impacts on river and
riparian ecosystems and wetlands.
5-12 1 Deschutes County comprehensive Plan
41-Vaturao Resources
Policy 5.4.6. Support plans, cooperative
agreements, education, water quality
monitoring and other tools that protect
watersheds, reduce erosion and runoff,
enhance riparian vegetation, and protect
other natural or engineered water systems/
processes that filter and/or clean water and
improve and/or and preserve water quality.
Policy 5.4.7. Coordinate with the Oregon
Department of Environmental Quality and
other stakeholders on regional water quality
maintenance and improvement efforts such
as identifying and abating point (single -
source) and non -point (unidentified or
multiple -source) pollution or developing and
implementing Total Maximum Daily Load and
Water Quality Management Plans.
Policy 5.4.8. Coordinate with The
Confederated Tribes of Warm Springs
Reservation of Oregon and other federal,
state, and local agency resource managers to
address water -related public health issues.
a. Support amendments to State regulations
to permit centralized sewer systems
in areas with high levels of existing or
potential development or identified water
quality concerns.
b. If a public health hazard is declared in
rural Deschutes County, expedite actions
such as legislative amendments allowing
sewers or similar infrastructure.
Policy 5.4.9. Continue to evaluate and/or
implement regulations, such as a wellhead
protection ordinance for public water
systems, in accordance with applicable
Federal and/or State requirements.
PDlicy 5.4.10. Coordinate and work with
the Oregon Department of Agriculture,
agricultural uses, and available voluntary
programs to support and implement
proven new technologies and best practices
to maintain and enhance water quality,
such as minimizing nitrate contamination,
maintaining streamside vegetation, reducing
streambank soil erosion and runoff, reducing
fish passage barriers, managing return flows,
limiting livestock access to riparian areas,
and minimizing weeds and bare patches in
grazing areas.
Policy 5.4.11. Support regulations, education
programs, and cleaning procedures at public
and private boat landings.
Goal 5.5: Coordinate land use and water policies
to address management and allocation of water
in Deschutes County.
Policy 5.5.1. Coordinate with other affected
agencies when a land use or development
application may impact rivers or riparian
ecosystems or wetlands.
Policy 5.5.2. Regulate land use patterns
and promote best practices to preserve the
integrity of the natural hydrologic system,
recognize the relationship between ground
and surface water, recognize basin -wide
impacts, and address water impacts of new
land uses and developments, including
water -intensive uses.
P®licy 5.5.3. Support OWRD's efforts
to update and modernize Oregon's
groundwater allocation rules and policies
to protect existing surface water and
groundwater users and to maintain
sustainable groundwater resources.
Policy 5.5.4. Support efforts by the OWRD
in collaboration with Central Oregon Cities
Organization, The Confederated Tribes of the
Warm Springs Reservation of Oregon, and
non -governmental organizations to revisit
the Deschutes Basin Groundwater Mitigation
Program.
5-13 1 Deschutes County Comprehensive Plan
Natural Resource,,
Policy 5.5.5. Coordinate with the irrigation
districts to ensure -irrigated land partitions
and lot line adjustments are not approved
without notice to the affected district.
Policy 5.5.6. Utilize Central Oregon
Stormwater Manual to apply appropriate
stormwater management practices land use..
decisions.
Policy 5.5.7. Allow for development of
wastewater facilities and improvements
where needed or required to address water
quality issues and maintain water quality,
consistent with state and local wastewater
system requirements.
Open Space • Scenic Views Policies
Goal Goal 5.6: Coordinate with property owners to
protect open spaces, scenic views, and scenic
areas and corridors through a combination of
incentives and/or educational programs.
Policy 5.6.1. Work with stakeholders to
create and maintain a system of connected
open spaces while balancing private property
rights with community benefits.
Policy 5.6.2. Work to maintain the visual
character and rural appearance of open
spaces such as the area along Highway 97
that separates the communities of Bend
and Redmond or lands that are visually
prominent. -
Policy 5.6.3. Work to maintain and protect
the visual character and rural appearance of
visually prominent open spaces within the
County, particularly those that are identified
in the Goal 5 inventory.
Policy 5.6.4. Seek to protect the cultural
identity of rural communities, such as the
Highway 97 area/corridor between Bend and
Redmond, and others.
Policy 5.6.5. Protect significant open spaces,
scenic views, and scenic sites by encouraging
new development to be sensitive to these
resources.
Policy 5.6.6. Incentivize the placement of
structures in a way that is sensitive of view
corridors to maintain the visual character of
the area.
Wildlife Goals and Policies
Goal 5.7:Maintain and enhance a diversity of
Wildlife and habitats.
Policy 5.7.1. Promote stewardship of wildlife
habitats through incentives, public education,
and development regulations.
Policy 5.7.2. Ensure Goal 5 wildlife
inventories and habitat protection programs
are up-to-date through public processes,
expert sources, and current or recently
adopted plans and studies.
Policy 5.7.3. Provide incentives for new
development to be compatible with and to
enhance wildlife habitat.
Policy 5.7.4. Require, incentivize, or
encourage clustering of development in
inventoried wildlife areas to reduce impacts
to wildlife populations.
Policy 5.7.5.Develop better understanding
of The Confederated Tribes of the Warm
Springs Reservation of Oregon's treaty -
protected rights to co -manage the wildlife
resources of the Deschutes Basin.
Goal 5.8: Balance protection of wildlife and
habitat with the economic and recreational
benefits of wildlife and habitat.
Policy 5.8.1. Encourage responsible and
sustainable wildlife related tourism and
recreation.
5-14 1 Deschutes County Comprehensive plan
Natural ReSources
Policy 5.8.2. Coordinate with stakeholders
to ensure access to appropriate recreational
opportunities within significant wildlife and
riparian habitat through public or non-profit
ownership.
P0licy 5.8.3.Coordinate with Confederated
Tribes of the Warm Springs Reservation
of Oregon and State agencies to develop
strategies to support sound wildlife
management science and principals for the
benefit of the wildlife resource.
Goal 5.9: Comply with federal and state
regulations related to sensitive, threatened, and
endangered species, including the Endangered
Species Act, the Bald and Golden Eagle
Protection Act, the Migratory Bird Treaty Act, and
others as applicable.
Policy 5.9.1. Coordinate with Federal and
State agencies to develop strategies to
protect Federal or State Threatened or
Endangered Species, or Species of Concern.
Policy 5.9.2. Mitigate conflicts between large-
scale development and sage grouse habitat.
Policy 5.9.3. Consider adopting
recommendations from Oregon Department
of Fish and Wildlife, the Confederated Tribes
of the Warm Springs Reservation of Oregon,
and the Deschutes River Mitigation and
Enhancement Program in dock construction.
Environmental ()U,, lit,
Goal 5.10: Maintain and improve upon the
quality of air and land in Deschutes County.
Policy 5.10.1. Use building techniques,
materials, and technologies in existing
and future County operations and capital
facilities that help maintain and improve
environmental quality.
Policy 5.10.2. Implement a dark skies
educational and or incentive program and
periodically update the Dark Skies ordinance
to reduce the impacts of light pollution
and reduce lighting impacts on adjacent
properties.
Policy 5.10.3. Coordinate with agency
partners to educate residents about
controlled burning projects and air quality
concerns.
Policy 5.10.4. Use public education,
education for County departments, and
regulations to control noxious weeds and
invasive species.
Goal 5.11: Promote sustainable building
practices that minimize the impacts of
development on the natural environment.
Policy 5.11.1. Use the County Code and
educational materials to promote the use of
resource -efficient building and landscaping
techniques, materials, and technologies that
minimize impacts to environmental quality.
Policy 5.11.2. Encourage and support
reuse and recycling of consumer goods,
green waste, construction waste, hazardous
waste, and e-waste through education and
enhanced recycling opportunities through
the Recycling Program.
Policy 5.11.3. Support the process for
siting new County solid waste management
facilities in rural Deschutes County,
consistent with facility needs and County
standards for the location and approval of
such facilities.
Policy 5.11.4. imp►ement best practices in
solid waste management throughout the
County.
5-15 1 Deschutes County Comprehensive Plan
Policy 5.11.5. Develop and implement a
Climate Action Plan to address the potential
future impacts of climate change on
Deschutes County through incentives and/or
regulations.
Policy 5.11.6. Promote and incentivize
green infrastructure in new development to
improve stormwater management.
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**DRAFT**
July 23, 2024
Governor Tina Kotek
Office of the Governor
900 Court Street, Suite 254
Salem, OR 97301-4047
Dear Governor Kotek -
We wanted to update you on Deschutes County's progress related to providing additional shelter
space for people living unsheltered and re-engage discussions with you about using the Gales'
property, 62150 Hamby Road, Bend, OR for a managed camp (the property is 7.8 acres and
is tax lot 1712360000800). Even though the Gales are taking steps toward a re -zone application
to allow for safe parking, we are seeking a more comprehensive and immediate solution that
provides the opportunity for safe parking, managed camping, and/or tiny homes/shelter pods.
In terms of progress over the past year, Deschutes County has accomplished or is planning the
following:
• Deschutes County adopted a Safe Parking program within the urban growth boundaries
and 1-mile from the (UGB) of the cities of Bend and Redmond.
• Deschutes County deployed basic hygiene stations (portable toilets, drinking water, hand
washing stations, and dumpsters) at County -owned land in Juniper Ridge to serve people
who are houseless and living on the edge of Bend.
• Deschutes County staff has drafted conceptual options for a supported/managed camp on
45-acres of County -owned land in Southeast Redmond. The area will be used as an
alternative location for people who are living on the 137-acres of County -owned land
that is part of the land swap with the Department of State Lands.
• Oasis Village, a 15-tiny home village providing low -barrier shelter, opened on County -
owned property in Redmond in January 2024. Oasis Village is working to add an
additional 10 tiny homes.
• Deschutes County provided $320,000 for a new pilot program called Workforce Home
Ownership for Median -income Earners (Workforce HOME) to support the building of
new homes for median -income earners.
• Deschutes County approved an additional $200,000 to further expand Mountain View
Community Development's Safe Parking Program in Redmond.
• Deschutes County provided funds to add seven new tiny homes at Veterans' Village in
Bend — a project located on County -owned property.
Also, thank you for your commitment of $1.1 million in state funds for housing pods. We are
encouraged by the opportunities currently being discussed for the use of housing pods in
Deschutes County.
As detailed above, Deschutes County has actively supported the creation of additional capacity
to address homelessness within our cities and urban growth boundaries. We now are respectfully
asking for your assistance on paths forward to build and operate a managed camp at the Gales
property, located within a mile of the Bend Urban Growth Boundary. A legislative fix is
appealing but does not address the immediate need. Another option we support is to
request the Department of band Conversation and Development (DLCD) propose
--------____-- ---_r-- a_-_ _l _ng _R 01 I Da_. ...i. .Hu
ci➢i�fl'�'ci6a.ay' i�uic:s ivi� aaii:iii:a-iia"�'tiiaia iiiit:dii➢i iaiiii3iia�' ii:i a-lsaflii Viii3aili iia eas d9[1H6 �aii'eViHa
boundaries (UGBs) for people displaced by the housing crisis and experiencing
homelessness. We are also open to other options that we have not contemplated.
Thank you for your continued partnership in assisting local governments find solutions to
address homelessness.
Board of County Commissioners,
Chair Vice Chair Commissioner