2024-312-Order No. 2024-042 Recorded 11/4/2024REVIEWED
LEGAL COUNSEL
Recorded in Deschutes County
Steve Dennison, County Clerk
Commissioners' Journal
CJ2024-312
11/04/2024 9:40:31 AM
1111 IIIIIIIIIIIIII IIIIIII 11 lII
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Denying Review of Hearings
Officer's Decision in File No. 247-24-000209-
CU.
*
* ORDER NO. 2024-042
WHEREAS, on October 2, 2024, the Hearings Officer denied File No. 247-24-000209-CU; and
WHEREAS, on October 10, 2024, Jeff and Cindi Schutte, the Appellant, appealed (Appeal No.
247-24-000629-A) the Deschutes County Hearings Officer's Decision on File No. 247-24-000209-
CU; and
WHEREAS, Sections 22.32.027 and 22.32.035 of the Deschutes County Code ("DCC") allow
the Deschutes County Board of County Commissioners ("Board") discretion on whether to hear
appeals of Hearings Officers' decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application
on appeal; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. That it will not hear Appeal No. 247-24-000629-A pursuant to Title 22 of the
DCC and/or other applicable provisions of the County land use ordinances.
Section 2. Pursuant to DCC 22.32.015, the County shall refund any portion of the appeal
fee not yet spent processing the subject application. If the matter is further appealed to the Land
Use Board of Appeals and the County is required to prepare a transcript of the hearing before the
Hearings Officer, the refund shall be further reduced by an amount equal to the cost incurred by
the County to prepare such a transcript.
Section 3. Pursuant to DCC 22.32.035(D), the only documents placed before and
considered by the Board are the notice of appeal, recommendations of staff, and the record
developed before the lower hearing body for File Nos. 247-24-000209-CU as presented at the
following website:
https://www.deschutes.org/cd/page/247-24-000209-cu-schutte-nonfarm-dwelling
ORDER NO. 2024-042
DATED this
ATTEST:
day of LA-' , 2024.
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
P.»TTI ADAIR, Chair
ANTHONY DEBONE, Vice Chair
PHIL CHANG, Commissior1er
ORDER NO. 2024-042
�vTES
BOARD OF
o " �Iflww► -�
COMMISSIONERS
AGENDA REQUEST & STAFF REPORT
MEETING DATE: October 30, 2024
SUBJECT: Consideration to hear an appeal of a Hearings Officer's decision denying an
application for a nonfarm dwelling
RECOMMENDED MOTION:
After considering the record developed before the Hearings Officer, the appeal application
(land use file no. 247-24-000629-A), and staffs recommendation, the Board must decide
whether to:
• Accept review of the appeal and schedule a public hearing to a date and time
certain; or
• Decline review of the appeal and have the Hearings Officer's decision be the final
decision of the county.
Staff recommends the Board decline review of the appeal via Board Order No. 2024-042.
BACKGROUND AND POLICY IMPLICATIONS:
A public hearing on a proposed nonfarm dwelling (land use file no. 247-24-000209-CU) was
held before a Hearings Officer on August 29, 2024. After the close of the record, the
Hearings Officer issued a decision ("Decision") on October 2, 2024, denying the request for
a nonfarm dwelling. On October 10, 2024, the property owner filed a timely appeal of the
Decision.
The attached memo describes the reasons for denial and the issues identified by the
appellant for justifying an appeal.
BUDGET IMPACTS:
None
ATTENDANCE:
Anthony Raguine, Principal Planner
MEMORANDUM
TO: Board of County Commissioners ("Board")
FROM: Anthony Raguine, Principal Planner
DATE: October 22, 2024
RE:
COMMUNITY DEVELOPMENT
Appeal of Hearings Officer's denial of an application to establish a nonfarm (single-
family) dwelling in the Exclusive Farm Use Zone; Land use file no. 247-24-000209-CU,
247-24-000629-A
On October 30, 2024, the Board will consider hearing an appeal of the Hearings Officer's denial of a
conditional use permit (CUP) to establish a nonfarm dwelling.
I. PROCEDURAL HISTORY
A public hearing for the proposed nonfarm dwelling was held before a Hearings Officer on August
29, 2024. After the close of the record, the Hearings Officer issued the denial on October 2, 2024.
On October 10, 2024, the property owners, Jeff and Cindi Schutte, filed a timely appeal of the
Hearings Officer's decision.
II. HEARINGS OFFICER'S DECISION
The Hearings Officer denied the CUP for the following reasons:
• The "Farm Impacts Test"' requires the applicant to focus on the dwelling's impact to nearby
farm practices. The applicant did not address what specific farm practices are associated
with nearby farm uses. Instead, the applicant focused on the dwelling's compatibility with
farm uses. The Hearings Officer stated that, "An impact that is compatible with a farm use
may nevertheless force a significant change to the farm practices associated with that use,
or significantly increase the costs of those practices."
• The "Generally Unsuitable Test"' requires the applicant to demonstrate that the location of
the proposed nonfarm dwelling is generally unsuitable for the production of, among other
1 Deschutes County Code (DCC) 18.16.040(A)(1) & (2) and Oregon Revised Statute (ORS) 215.296(1).
2 DCC 18.16.040(A)(3), DCC 18.16.050(G)(1)(a)(iii), DCC 18.16.050(G)(2)(a) & (b), and Oregon Administrative Rule (OAR) 660-
033-0130(4)(c)(B)(ii).
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 P.O. Box 6005, Bend, OR 97708-6005
'$. (541) 388-6575 @ cdd@deschutes .org v www.deschutes.org/cd
things, livestock. The Generally Unsuitable Test applies both to the subject property by itself
and whether the property could be used in conjunction with ("Used in Conjunction Test")
other properties for the production of livestock. While the applicant argued that the property
itself cannot support enough forage to economically raise cattle, the applicant did not
address whether the property could be used in conjunction with other properties,
particularly considering the surrounding area includes grazing leases.
• The "Stability Test"' requires the applicant to demonstrate that approval of the nonfarm
dwelling would not, cumulatively, alter the existing pattern of land use in the area by making,
"...it more difficult for the existing types of farms in the area to continue operation due to
diminished opportunities to expand, purchase or lease farmland, acquire water rights or
diminish the number of tracts or acreage in farm use in a manner that will destabilize the
overall character of the study area." Approval of the CUP would result in 10 of the 19 privately
owned lots in the study area being developed with a nonfarm dwelling. Consequently, a
majority of the privately owned lots would be developed for nonfarm purposes. The
Hearings Officer found this tipped the scales in favor of nonfarm dwellings over farm uses,
thereby creating a new pattern of development.
III. SCHUTTE APPEAL
The appellants request the Board review the Hearings Officer's decision on appeal to address the
following summarized issues.
• The Hearings Officer erroneously applied the Used in Conjunction Test to the Generally
Unsuitable Test. The Used in Conjunction Test only applies when an applicant asserts that
the property is not suitable for farm use base on the property's size or location.4 The
applicant argues the property is unsuitable based on the soils on -site, as detailed in the soils
study submitted to the record, not unsuitable due to size or location.
• The Hearings Officer did not apply the correct analysis to the Stability Test. The Hearings
Officer erroneously applied a 50% rule that does not exist in County Code or state law.
• The Hearings Officer ignored evidence in the record addressing surrounding farm uses and
impacts to those farm uses.
IV. BOARD OPTIONS
There are two versions of Order No. 2024-042 attached to this memo; one to hear the appeal and
one to decline to hear the appeal. In determining whether to hear an appeal, the Board may
consider only:
1. The record developed before the Hearings Officer;
3 DCC 18.16.050(G)(1)(a)(ii) and OAR 660-033-0130(4)(a)(D).
4 Central Oregon LandWatch v Crook County, 294 Or App 762 (2018).
247-24-000209-CU, 629-A Page 2 of 4
2. The notice of appeal; and
3. Recommendation of staff.'
Reasons not to hear
The Hearings Officer's decision is reasoned, well written, and could be supported, as the record
exists today on appeal to LUBA. Additionally, the Board is unlikely to receive deference on matters
involving state law, administrative rule, and its associated caselaw.
If the Board declines to hear the appeal, the Hearings Officer's decision shall be the final decision of
the county and the appellants may continue the appeal as provided by law. The decision on the land
use application and associated appeal becomes final upon the mailing of the Board's decision to
decline review.
Reasons to hear
The Board may want to take testimony and make interpretations relating to the Hearings Officer's
decision. The Board may also want to reinforce or refute some or all of the decision
findings/interpretations prior to Land Use Board of Appeals ("LUBA") review.
If the Board chooses to hear this matter, the appellants request the Board conduct a de novo
hearing. Under Deschutes County Code 22.32.027(B)(3), the Board may choose to hear a matter de
novo at their sole discretion. In addition, if the Board decides to hear the appeal, it may consider
providing time limits for public testimony.
V. STAFF RECOMMENDATION
Staff recommends the Board not hear this appeal because staff believes the appellants were able
to present all relevant evidence for the Hearings Officer's consideration. Further, staff believes the
Board would not receive deference at LUBA. Finally, while there may be enough time for the Board
to conduct a hearing, deliberate, and issue a final decision by December 21, 2024 (see below), or
the effective deadline date after any open record period, it is unclear to staff what the Board's
availability would be in and around upcoming holidays.
VI. 150-DAY LAND USE CLOCK
The deadline for a final County decision under ORS 215.427 - "the 150-day clock" - is December 21,
2024.
5 Deschutes County Code 22.32.035(D)
247-24-000209-CU, 629-A Page 3 of 4
VII. RECORD
The record for land use file nos. 247 24-000209-CU and 247-24-000629-A is as presented at the
following Deschutes County Community Development Department website:
https://www.deschutes.org/cd/page/247-24-000209-cu-schutte-nonfarm-dwelling
Attachments:
1. Hearings Officer's decision on land use file no. 247-24-000209-CU
2. Appeal application, file no. 247-24-000629-A
3. DRAFT Board Order 2024-042 Accepting Review of the Hearings Officer's Decision
4. DRAFT Board Order 2024-042 Declining Review of the Hearings Officer's Decision
247-24-000209-CU, 629-A Page 4 of 4
DECISION AND FINDINGS OF
THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER: 247-24-000209-CU
HEARING DATE: August 29, 2024
HEARING LOCATION: Videoconference and
Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
APPLICANT/OWNER: Jeff Schutte and Cindi Schutte
SUBJECT PROPERTY: Map and Taxlot: 141102B000300
Account: 124740
Situs Address: 71510 Forest Service Rd 6360
Sisters, OR 97759
REQUEST:
The Applicant requests conditional use approval for a nonfarm
dwelling in the Exclusive Farm Use (EFU) Zone and Wildlife Area
(WA) Combining Zone.
HEARINGS OFFICER: Tommy A. Brooks
SUMMARY OF DECISION: This Decision DENIES the Application.
I. STANDARDS AND CRITERIA
Deschutes County Code (DCC)
Title 18, Deschutes County Zoning Ordinance:
Chapter 18.16, Exclusive Farm Use Zones (EFU)
Chapter 18.88, Wildlife Area Combining Zone (WA)
Title 22, Deschutes County Development Procedures Ordinance
Page l 1
II. BACKGROUND AND PROCEDURAL FINDINGS
A. Request and Nature of Proceeding
This matter comes before the Hearings Officer as a request by Jeff Schutte and Cindi Schutte (together,
the "Applicant") for conditional use approval of a nonfarm dwelling. The Subject Property is in the
County's Exclusive Farm Use ("EFU") Zone and Wildlife Area ("WA") Combining Zone.
The Applicant provided a site plan ("Site Plan") with a (not -to -scale) depiction showing the approximate
location of the proposed dwelling, a driveway, a well, a septic tank, and a septic field on the Subject
Property.' As described by the Applicant and shown on the Site Plan, the nonfarm dwelling would be
located on the southwest side of the Subject Property. Although the Site Plan purports to show a "building
envelope," the depiction on the Site Plan shows the footprint of a "house" and the other facilities. Later
submittals by the Applicant show the "building envelope" as a 400' by 450' rectangle on the southwest
edge of the Subject Property.
The County reviews nonfarm dwellings in accordance with the standards and procedures set forth in
Deschutes County Code ("DCC" or "Code") Chapter 18.16 and Title 22. The proposed use must also
satisfy the standards of the WA Combining Zone — set forth in DCC Chapter 18.88.
B. Application, Notices, Hearing
The Applicant submitted the Application on April 5, 2024. On May 3, 2024, Staff of the County's
Community Development Department ("Staff') provided notice to the Applicant that it did not deem the
Application to be complete. The Applicant provided additional information on May 28, 2024, June 17,
2024, and July 24, 2024. As part of the July 24th submittal, the Applicant stated the application was
complete at that time.
On August 5, 2024, Staff mailed a Notice of Public Hearing ("Hearing Notice"). The Hearing Notice
stated the Hearing would be held on August 29, 2024.
Pursuant to the Hearing Notice, I presided over the Hearing as the Hearings Officer on August 29, 2024,
opening the Hearing at 1:00 p.rn. The Hearing was held in person and via videoconference, with the
Hearings Officer appearing remotely. At the beginning of the Hearing, I provided an overview of the
quasi-judicial process and instructed participants to direct comments to the approval criteria and standards,
and to raise any issues a participant wanted to preserve for appeal if necessary. I stated I had no ex parte
contacts to disclose or bias to declare. I invited but received no objections to the County's jurisdiction
over the matter or to my participation as the Hearings Officer.
1 The record contains various depictions of the proposed dwelling and associated facilities. For purposes
of this Decision, unless otherwise indicated, the "Site Plan" refers to Exhibit B of the Applicant's Second
Supplemental BOP [Burden of Proof], dated June 17, 2024.
Page12
The Hearing concluded at 1:47 p.m. I received no requests to keep the record open, so I closed the record
at that time.
C. Review Period
As noted above, the Applicant submitted additional materials in response to the Incomplete Letter through
July 24, 2024, stating that the Application was complete at that time. Using July 24, 2024, as the date of
completeness, the deadline for a final County decision under ORS 215.427 — "the 150-day clock" — is
December 21, 2024.
III. SUBSTANTIVE FINDINGS AND CONCLUSIONS
A. Staff Report
On August 20, 2024, Staff issued a report setting forth the applicable criteria and presenting evidence in
the record at that time ("Staff Report").
The Staff Report did not make a final recommendation. However, the Staff Report noted that Staff
believed the Applicant had not met its burden of proof or demonstrated compliance with all applicable
criteria. Nevertheless, the Staff Report recommended the imposition of several conditions of approval if
the Application is approved.
This Decision refers to portions of the Staff Report in reference to various evidentiary findings. Because
this Decision denies the Application, however, the proposed conditions of approval in the Staff Report are
not incorporated into this Decision.
B. DCC Chapter 18.16, Exclusive Farm Use Zones (EFU)
The Subject Property is within the County's EFU Zone, which is governed by DCC Chapter 18.16. This
section addresses the applicable provisions of that chapter. The relevant Code language is set forth in
italics, followed by findings addressing that language.
1. Section 18.16.030. Conditional uses permitted - High value and non -
high value farmland
This Code provision lists several conditional uses permitted on all types of farmland in the EFU Zone.
Among those conditional uses allowed is a nonfarm dwelling. Under this provision, such uses are
expressly subject to the applicable provisions of the Comprehensive Plan, DCC 18.16.040, DCC
18.16.050, and Title 18 in general.
The Applicant proposes to establish a nonfarm dwelling on the Subject Property. The proposed dwelling
is therefore allowed as a conditional use if the Applicant satisfies the applicable criteria in DCC Title 18,
which are addressed throughout this Decision. As the Staff Report notes, the Applicant does not propose
to establish a use other than a nonfarm dwelling, and the Applicant identifies only DCC 18.16.030(A) as
the basis for that use.
Page 13
2. Section 18.16.040. Limitations on Conditional Uses
A. Conditional uses permitted by DCC 18.16.030 may be established subject to ORS 215.296
and applicable provisions in DCC 18.128 and upon a finding by the Planning Director or
Hearings Body that the proposed use:
1. Will not force a significant change in accepted farm or, forest practices as defined
in ORS 215.203(2)(c) on surrounding lands devoted to farm or forest uses; and
2. Will not significantly increase the cost of accepted farm or forest practices on
surrounding lands devoted to farm or forest uses; and
The specific limitations in DCC 18.16.040(A)(1) and (2) are required by state law and derive from ORS
215.296(1). The Land Use Board of Appeals ("LUBA") sometimes refers to these restrictions as the "farm
impacts test."
An applicant carries the burden of proving that its proposal meets the farm impacts test.2 LUBA has a
well -established methodology for demonstrating compliance with the farm impacts test.3 Under that
methodology, a proposal can be approved only if it: (1) describes farm practices on surrounding lands
devoted to farm use; (2) explains why the proposed development will not force a significant change in
those practices; and (3) explains why the proposed development will not significantly increase the cost of
those practices. To begin that process, LUBA has held that "[i]n applying ORS 215.296(1), it is entirely
appropriate for the applicant and county to begin by visually surveying surrounding lands to identify the
farm and forest uses to which those lands are devoted."' Other parties are then free to dispute the initial
findings, or to add to the record additional evidence of nearby farm uses that the applicant and county
must respond to.5
In addressing the farm impacts test, the Applicant's initial Burden of Proof statement notes that "[n]one
of the parcels directly abutting the subject property are currently engaged in farm use," but that the
surrounding area does include pasture and livestock farm uses. The Application goes on to provide a list
of all properties within one mile of the Subject Property, also noting which properties are in farm deferral.
This assessment generally amounts to a visual survey of the surrounding land, as contemplated by LUBA,
and is an appropriate first step for addressing the farm impacts test.
The focus of the Applicant's discussion of the farm impacts test in its initial Burden of Proof was whether
nearby farm uses and practice would impact the nonfarm dwelling, and the Applicant concludes that the
"proposed nonfarm dwelling will not be subject to adverse impacts from nearby farm uses." That
conclusion, however, is the reverse of what the farm impacts test requires, which is an assessment of any
impacts the dwelling will have on farm practices. During the Hearing, the Applicant acknowledged this
2 Schrepel v. Yamhill County, -- Or LUBA — (LUBA No. 2020-066), 2020 WL 8167220, at *6.
3 See, e.g., Brown v. Union County, 32 Or LUBA 168 (1996).
4 Dierking v. Clackamas County, 38 Or LUBA 106, 120-21 (2000).
5 Id.
Page(4
discrepancy, but pointed to a letter from Long Hollow Ranch that the dwelling would not impact its
operations, "including our practices", as evidence that the nonfarm dwelling would not impact farm
practices. When asked if the record refers to any specific farm practices, the Applicant reiterated the
existence of nearby farm uses, but did not elaborate on the presence of any farm practices associated with
those uses.
As I understand LUBA's and the courts' application of the farm impacts test, satisfaction of that test must
focus on impacts to farm practices rather than on compatibility with farm uses. An impact that is
compatible with a farm use may nevertheless force a significant change to the farm practices associated
with that use, or significantly increase the costs of those practices. Despite the Applicant's
acknowledgement that there are farm uses on surrounding parcels, the record does not include a specific
description of the farm practices associated with those uses. The Applicant's materials imply that such
practices exist. For example, the initial Burden of Proof, where it discusses potential impacts on the
dwelling, identifies potential practices in the area such as re -seeding, spraying of herbicides, use of trucks,
and the application of manure. But the Applicant does not attempt to indicate which, if any, of those
practices actually occur in the surrounding area.
It is possible that the proposed nonfarm dwelling can satisfy the farm impacts test. The evidentiary
standard I must apply, however, is a preponderance of the evidence standard.' In doing so, I must
determine if the evidence in the record is more likely than not to establish any fact used to satisfy a
criterion. The burden to demonstrate compliance with the farm impacts test unequivocally lies with the
Applicant. Without a more specific identification of the accepted farm practices that are associated with
the identified farm uses on surrounding lands, I cannot make a factual finding regarding the existence of
those faiiii practices, and therefore cannot make a finding that it is more likely than not that the proposed
dwelling will not force a significant change to those farm practices. I therefore find that the Applicant has
not met its burden with respect to compliance with DCC 18.16.040(A)(1) and (2).
3. That the actual site on which the use is to be located is the least suitable for the
production of farni crops or livestock.
DCC 18.16.040(A)(3) is a County criterion that further limits conditional uses in the EFU Zone by
requiring the use to occupy a site that is "the least suitable for the production of farm crops or livestock."
As noted in the Staff Report, the Board of County Commissioners has determined that if the general
unsuitability criterion of 18.16.050(G)(1)(a)(iii) is met, the least suitable criterion of Section
18.16.040(A)(3) is satisfied as well. The Applicant relies on its assertion that the area where the dwelling
is proposed on the Subject Property is generally unsuitable for the production of farm crops and livestock.
I address that assertion in the findings under DCC 18.16.050(G)(1)(a)(iii) below, which are incorporated
herein by reference. Because those findings conclude that the Applicant has not demonstrated that the area
for the nonfarm dwelling is generally unsuitable for the production of crops or grazing, I find that this
Code provision is also not satisfied.
6 The Applicant appeared at the Hearing through legal counsel. This Decision refers to statements by the
Applicant and its legal counsel as statements by the Applicant.
7 See Morgan v. Jackson County, -- Or LUBA — (LUBA No. 2017-053).
Page
3. Section 18.16.050. Standards for Dwellings in the EFU Zones
G. Nonfarm Dwelling.
1. One single-family dwelling, including a manufactured home in accordance with
DCC 18.116.070, not provided in conjunction with farm use may be permitted on
an existing lot or parcel subject to the following criteria:
a. The Planning Director or Hearings Body shall make findings that:
i. The dwelling or activities associated with the dwelling will not force
a significant change in or significantly increase the cost of accepted
farming practices, as defined in ORS 215.203(2)(c), or accepted
forest practices on nearby lands devoted to farm or forest use.
DCC 18.16.050(G) sets forth the provisions of DCC 18.16.050 that are specific to nonfarm dwellings.8
Subsection (1)(a)(i) restates the applicability of the farm impacts test set forth in DCC 18.16.040(A).
Findings addressing that Code provision are set forth above, concluding that the Applicant has not met its
burden of demonstrating compliance with the farm impacts test, and those findings are incorporated herein
by this reference. Because the Applicant has not met its burden of demonstrating compliance with the
farm impacts test, I find that this Code provision is not satisfied.
ii. The proposed nonfarm dwelling does not materially alter the
stability of the overall land use pattern of the area. In determining
whether a proposed nonfarm dwelling will alter the stability of the
land use pattern in the area, the county shall consider the
cumulative impact of nonfarm dwellings on other lots or parcels in
the area similarly situated, by applying the standards under OAR
6�n I J23 n 130(4) / � ir) d 7 ther creation the 1 will lead
vv v vl v��/�aj�u�, and VV/Le6/Le/ W eaLLV/L Oj L Le parcel VVLLL LGU6L
to creation of other nonfarm parcels, to the detriment of agriculture
in the area.
DCC 18.16.050(G)(1)(a)(ii) requires an analysis of the overall land use pattern of the area before and after
the placement of the nonfarm dwelling. The Applicant must show that the nonfarm dwelling will not
materially alter the existing pattern, and the Code requires the County to consider the cumulative impact
of nonfarm dwellings.
Like the farm impacts test, this provision implements state law, and the Land Conservation and
Development Commission ("LCDC") has adopted specific administrative rules for implementing this
criterion.9 In brief summary, those rules require the County to: (1) consider a study area of at least 2,000
acres; identify the types of farm uses in that area and dwelling development trends since 1993; (3)
determine the potential number of nonfann dwellings or lot of record dwellings that could be approved in
8 The lead-in language of this Code provision requires the owner of the subject property to record a
covenant agreeing not to pursue claims for relief for injuries from certain farm and forest practices.
Because this Decision denies the Application, I find it is not necessary to address that requirement.
9 OAR 660-033-0130(4)(a)(D).
Page 16
the study area; and (4) determine whether additional dwellings will materially alter the land use pattern
by making "it more difficult for the existing types of farms in the area to continue operation due to
diminished opportunities to expand, purchase or lease farmland, acquire water rights or diminish the
number of tracts or acreage in farm use in a manner that will destabilize the overall character of the study
area."
The Applicant addressed these requirements first by identifying a study area with a one -mile radius, which
is consistent with prior County practice and with the LCDC's rule requiring a minimum area of 2,000
acres. As noted above, the Applicant also identified the broad types of farm uses in the study area — noting
that they consist of general farming with irrigated pasture and livestock.
According to the Applicant, 19 of the 22 tax lots in the study area are privately owned, and 9 of those have
dwellings on them. Those dwellings have all been constructed since 1993 and are also nonfarm dwellings.
The Applicant estimates that an additional nine nonfarm dwellings are possible in the study area. The
Applicant asserts that it is not possible to determine the number of lot of record dwellings that are possible,
because such an analysis is site -specific and complex, but notes that it is difficult to site such dwellings
and no such dwellings currently exist in the area.
Based on those facts, the Applicant asserts that the stability of the land use pattern will not be materially
altered. According to the Applicant, all of the parcels currently in farm use in the study area "will remain
relatively stable and that there will be little or no expansion of farm use in the area, given the topography
and availability of water rights." The Applicant also asserts that farm use in the area has remained stable
for a number of years."
Participant Central Oregon LandWatch ("COLW") disagrees with the Applicant and asserts that the
stability of the land use pattern has already been altered due to nonfarm dwellings in this area, and that
the proposed dwelling will do the same. In support of its assertion, COLW provided aerial images showing
surrounding grazing areas and compared those to the images showing increased nonfarm development
over time. COLW concludes "[a]pproval of this nonfarm dwelling will irreversibly tip the scales of this
area land use pattern's stability, and will soon no longer be suitable for commercial grazing."
The Applicant appears to be correct that existing farming will be able to continue (e.g. because the Subject
Property is not currently fanned, current farms can continue their operation). This Code provision,
however, requires an analysis of the cumulative impact of nonfarm dwellings, not just the impact of the
proposed dwelling. While a close call, I agree with COLW that, under these circumstances, the proposed
nonfarm dwelling, when viewed cumulatively with other nonfarm dwellings, will materially alter the
stability of the land use pattern. In arriving at that conclusion, I specifically note the difference in the
conditions that currently exist when compared to the conditions that existed in 2014. In 2014, through
Casefile 247-CU145, the County approved a nonfarm dwelling on the Subject Property. If constructed at
that time, the dwelling would have been the seventh nonfarm dwelling constructed in the study area. In
that scenario, it is understandable that the County would have determined that 7 out of 19 privately -owned
lots could be converted to nonfarm uses without altering the overall land use pattern. As the Applicant
notes, however, this Application would now result in 10 of the 19 privately -owned lots being developed
with nonfarm dwellings. In other words, if approved, the majority of the privately owned lots in the study
area would be developed for nonfarm purposes. Thus, contrary to the Applicant's assertion, this does "tip
Page 17
the scales" in favor of nonfarm dwellings over farm uses, thereby creating a new pattern of development
and, therefore, materially altering the existing pattern going forward.
Based on the foregoing, I find that the Application does not satisfy the requirements of DCC
18.16.050(G)(1)(a)(ii).
iii. The proposed nonfarm dwelling is situated on an existing lot or
parcel, or a portion of a lot or parcel, that is generally unsuitable
for the production of farm crops and livestock, or merchantable tree
species, considering the terrain, adverse soil or land conditions,
drainage and flooding, vegetation, location and size of the tract.
DCC 18.16.050(G)(1)(a)(iii) requires the Applicant to site a nonfarm dwelling on a parcel, or portion of a
parcel, that is generally unsuitable for the production of farm crops, livestock, or merchantable tree
species. DCC 18.16.050(G)(2)(b) specifies that a lot or parcel or portion of a lot or parcel is presumed
suitable for the production of farm crops and livestock if it is predominately composed of Class I -VI soils.
There is no dispute in this proceeding that the Subject Property cannot support merchantable tree species.
The Application initially states that the Subject Property consists of Class IV soils. The Applicant's initial
Burden of Proof expands on the description, noting that the Natural Resources Conservation Service
("NRCS") identifies two soil types on the Subject Property — 3B Agency Madras complex, and 86A
Madras sandy loam — which are both Class IV soils when not irrigated. The submittal states that the
dwelling will be on a portion of the Subject Property with the 3B classification. Based on this initial
information, the entirety of the Subject Property is presumed to be suitable for farming.
In a subsequent submittal, the Applicant submits and relies on an Order 1 Soil Study ("Soil Study") to
more particularly determine the soil classification of the Subject Property. According to the Soil Study, a
portion of the Subject Property has Class VII soils. The Applicant prepared a "Soil Map" based on the
Soil Study, and the Applicant states this figure "shows the location of the proposed building envelope in
relation to the Class IV soils," noting that it will be "located entirely outside of the Class IV soils and
entirely within Class VII soils."
Participant COLW objects to the Applicant's reliance on the Soil Study and asks that it be stricken from
the record. According to COLW, OAR 660-033-0030(5)(d) prohibits the use of an Order 1 soil study to
reclassify agricultural land if the study is filed after October 1, 2011. The Applicant's Soil Study is from
2009. While COLW is correct the LCDC's rules do place limits on the use of older soil studies, I find that
the specific limit COLW identifies is not applicable. OAR 660-033-0030(5)(c) states that this rule applies
in two circumstances: (1) a change in designation of a parcel from an EFU zone to a non -resources plan
designation and zone; and (2) "any other proposed land use decision in which more detailed data is used
to demonstrate that a lot or parcel planned and zoned for exclusive farm use does not meet the definition
of agricultural land."
Here, the Applicant is not seeking to redesignate the Subject Property to a non -resource plan designation
or zone, and the land use decision the Applicant seeks, a conditional use permit for a nonfarm dwelling,
Page 18
is not based on an argument that the Subject Property is not "agricultural land." Instead, the Application
materials appear to accept the fact that the Subject Property is still "agricultural land," but the Applicant
asserts that the portion of the Subject Property on which the dwelling will sit is generally unsuitable for
the production of farm crops and livestock, or merchantable tree species. The Applicant is welcome to use
the Soil Study to support that conclusion, and I decline to strike that portion of the Applicant's submittal
from the record.
LCDC's rules nevertheless establish the factors that must be considered when determining if a parcel of
land, or a portion therefore, is generally unsuitable for the production of farm crops and livestock.
Specifically, OAR 660-033-0130(4)(c)(B)(ii) states that a parcel is not generally unsuitable "simply
because it is too small to be farmed profitably by itself. If a lot or parcel or portion of a lot or parcel can
be sold, leased, rented or otherwise managed as a part of a commercial farm or ranch, then the lot or parcel
or portion of the lot or parcel is not `generally unsuitable'." On this point, I find that the Applicant has not
met its burden.
The Applicant relies on several facts, primarily: (1) that the Subject Property is not currently farmed; (2)
the soil conditions in the location where the dwelling is proposed are poor; and (3) the property cannot
support enough forage to economically raise cattle. Although each of these facts may be true, they are
property -specific and do not address whether the Subject Property could be sold, leased, rented or
otherwise managed as a part of a commercial farm or ranch encompassing other properties. Indeed, the
record indicates that other properties in the surrounding area are subject to grazing leases, and also
indicates that the Subject Property is similar in character to those properties that are not already developed
with dwellings. In other words, the soil classification of the Subject Property alone is not determinative.
In the absence of a more detailed comparison of the Subject Property with those other properties in the
surrounding area that are currently used for grazing, I find that I cannot conclude, based on a
tG onderance of the evidence that the property the Applicant seeks to use is generally unsuitable for that
p��� � N �� �p b Y
purpose. It may very well be that the Applicant can make such a showing, but that burden falls to the
Applicant, and the current record does not satisfy that burden.'°
Based on the foregoing, I find that the Applicant has not met its burden of demonstrating compliance with
DCC 18.16.050(G)(1)(a)(iii).
/ / /
/ / /
/ / /
1° The Applicant notes that an earlier County decision concluded that the Subject Property is generally
unsuitable for the production of farm crops and livestock, and that the earlier decision was "not in error."
The Applicant, however, does not assert or otherwise argue that the Hearings Officer is bound by that
decision, which addressed a different property configuration, which the Applicant did not act upon, and
which has since expired by its terms.
Page 19
iv. The proposed nonfarm dwelling is not within one -quarter mile of a
dairy farm, feed lot or sales yard, unless adequate provisions are
made and approved by the Planning Director or Hearings Body for
a buffer between such uses. The establishment of a buffer shall be
designed based upon consideration of such factors as prevailing
winds, drainage, expansion potential of affected agricultural uses,
open space and any other factor that may affect the livability of the
nonfarm dwelling or the agriculture of the area.
The Applicant asserts, and the Staff Report agrees, that the Subject Property is not within one -quarter mile
of a dairy farm, feed lot, or sales yard. No participant in this proceeding counters that assertion. Based on
the foregoing, I find that the Application complies with DCC 18.16.050(G)(1)(a)(iv).
v. Road access, fire and police services and utility systems (i.e.
electrical and telephone) are adequate for the use.
I find that the Applicant has established the adequacy of police services and utility systems. As
acknowledged by the Staff Report, the Deschutes County Sheriff provides police services. The Applicant
has documented the availability of utility services from third party providers, such as electric and
telephone service, and the Applicant proposes to obtain water from an onsite well. No participant has
disputed the adequacy of these service.
Road access to the Subject Property is provided via Forest Service Road No. 6360, which the Staff Report
notes connects to Holmes Road, a County road. The Applicant provided evidence of a grant of right-of-
way access from the Bureau of Land Management ("BLM"), which has been assigned to the Applicant,
of , ���n rr, ,: a: a.. .� �t a_.,.ii:..,..
allowing use or Road No. 6360. The Applicant asserts that this road is adequate for accessing the dwelling.
Although COLW takes issue with the reliance on the use of that road, COLW's argument is presented in
the context of a different Code criterion (location of the proposed building envelope as it relates to this
road), and COLW does not appear to dispute the adequacy of the road access itself. I note that the BLM
grant of access it not perpetual, and the Applicant will need to renew that access when it terminates.
However, the Code does not appear to impose any temporal component to the adequacy of road access.
Thus, while the Applicant bears the risk that the road access is not perpetual, I find that, as proposed, the
Applicant has demonstrated that road access is adequate for purposes of this Code provision.
With respect to fire services, the Applicant notes that the Subject Property it not within a rural fire
protection district, but it is a part of the Lower Bridge Rural Fire Protection Association. The Applicant
indicates that it has requested to be annexed into the Cloverdale Rural Fire Protection District, but the
record indicates that annexation has not occurred, that the District has no plans to annex the Subject
Property, and that the Applicant does not otherwise have a contract for services with the District. In
response, the Applicant proposes a condition of approval requiring certain firebreaks to be deployed and
the use of a residential fire sprinkler system, along with onsite water storage capacity of at least 4,000
gallons. COLW objects to the use of these conditions, asserting that actual service by the rural fire district
is required, and disputing the adequacy of the fire breaks the Applicant has proposed.
Page 110
The Applicant has proposed the conditions of approval relating to fire service based on the use of similar
conditions of approval used for other nearby nonfarm dwellings. While I agree with the Applicant that
these conditions are likely adequate, and I disagree with COLW that the Subject Property must take service
from a rural fire protection district to satisfy this criterion, this Decision ultimately denies the Application.
There is therefore no basis to impose any conditions of approval in this regard.
vi. The nonfarm dwelling shall be located on a lot or parcel created
prior to January 1, 1993, or was created or is being created as a
nonfarm parcel under the land division standards in DCC
18.16.055(B) or (C).
The Staff Report states that the Subject Property was created in 2009 as a nonfarm parcel under the
County's land division standards and, specifically, pursuant to DCC 18.16.055(B). COLW, however,
asserts that there is no evidence that the 2009 land division was completed, and notes that the partition
approved in that matter was never recorded. The Applicant does not respond to COLW's argument.
Instead, the materials provided by the Applicant indicate that the Subject Property was created by deed in
1941. I find that it is not necessary to resolve this issue, as, under either scenario, this criterion is satisfied.
Either the parcel was created in 1941 by deed, or it was created through the County's land division
procedures.
4. Dimensional Standard in the EFU Zone
DCC 18.16.060 through DCC 18.16.080 contain various dimensional standards applicable to the
development of structures in the EFU Zone, such as height limits and yard or stream setbacks. Because
this Decision denies the application, I find that it is not necessary to address these dimensional standards,
>,;ch generally' b r a through the ' imposition conditions s f approval to the extent they are
wut�tf can eiaera 1 be satisfied the ilia osi�avaa of eoiauaeavu of
applicable.
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
/ / /
Pagel 11
C. DCC Chapter 18.88, Wildlife Area Combining Zone
The Subject Property is in the WA Zone. The following findings address the applicable provisions of that
zone.
1. DCC 18.88.040, Uses Permitted Conditionally
A. Except as provided in DCC 18.88.040(B), in a zone with which the WA
Zone is combined, the conditional uses permitted shall be those
permitted conditionally by the underlying zone subject to the provisions
of the Comprehensive Plan, DCC 18.128 and other applicable sections
of this title. To minimize impacts to wildlife habitat, the County may
include conditions of approval limiting the duration, frequency,
seasonality, and total number of all outdoor assemblies occurring in the
WA Zone, whether or not such outdoor assemblies are public or private,
secular or religious..
DCC 18.88.040(A) allows as conditional uses any use that is conditionally permitted in the underlying
zone, unless limited by DCC 18.88.040(B). The uses limited by that latter Code provision do not include
nonfarm dwellings. Thus, as long as the proposed nonfarm dwelling satisfies the criteria of the underlying
EFU zone, it can be permitted conditionally in the WA zone, if all other WA zone criteria are satisfied.
As set forth above in the portion of these Findings addressing the EFU Zone, the Applicant has not
demonstrated compliance with all EFU Zone provisions. Thus, although a nonfarm dwelling is allowed in
the WA Zone, I find that the Application does not satisfy DCC 18.88.040(A).
B. Siting and Dimensional Standards in the WA Zone
DCC 18.88.060 and DCC 18.88.070 contain various siting and dimensional standards applicable to the
development of structures in the WA Zone. Because the Decision denies the application, I find that it is
not necessary to address these siting and dimensional standards, which can generally be satisfied through
the imposition of conditions of approval to the extent they are applicable.
Notwithstanding the foregoing, because the participants in this proceeding have different positions with
respect to DCC 18.88.060(B) and (C), I address those Code provisions. The approval standards
encompassed in those Code provisions require the Applicant to demonstrate that the footprint of the
dwelling will be located entirely within 300 feet of public roads, private roads, or recorded easements for
vehicular access existing as of August 5, 1992. To meet this standard, the Applicant initially asserted that
the proposed dwelling is within 300 feet of FS Road 6360. According to the Site Plan, however, FS Road
6360 is at least 500 feet from the building envelope as depicted on that figure, and therefore well over 300
feet from the proposed dwelling footprint.
The Applicant later asserted that it is relying on an existing spur road that runs east to west from FS Road
6360 along the southern edge of the Subject Property ("Spur Road") to meet this standard. The Applicant's
Site Plan indicates that the proposed dwelling footprint is 229 feet from the Spur Road. Because the Site
Plan does not include a scale, it is not possible to confirm that distance by measuring the building footprint
Page 112
or road, but the Site Plan includes narrative text that describes the distance. Even so, that text appears to
describe the closest point of the dwelling footprint, whereas this Code provision requires that the entire
footprint be within 300 feet of the road. The Site Plan does not clearly identify that 300-foot distance. I
therefore find that this criterion can only be met with a condition of approval to ensure the correct distance
is adhered to if the Spur Road can be used as the basis for the measurement.
COLW disagrees with the Applicant's reliance on the Spur Road, noting that DCC 18.88.060(C) contains
an evidentiary requirement for purposes of DCC 18.88.060(B). Specifically, subsection (C) states that a
private road, easement, or driveway will conclusively be regarded as having existed prior to August 5,
1992, if the applicant submits a recorded easement, an aerial photograph "with proof that it was taken
prior to August 5, 1992", or a published map showing the road. Because the aerial photographs the
Applicant submitted are not dated, COLW argues they cannot be relied upon to meet this criterion.
The evidentiary requirement COLW cites applies only to a "private road", easement, or driveway; it does
not purport to apply to public roads. As described by the Applicant, the Spur Road is part of FS Road
6360, and the Applicant does not rely on that road being a private road, easement, or driveway. Further,
even if certain evidentiary proof is "conclusive" that the road existed as of the required date, DCC
18.88.060(C)(2) states that the Applicant can provide other evidence to establish the existence of the road.
In addition to aerial photographs, the Applicant also submitted evidence in the form of the County's prior
decisions, which refer to the existence of the Spur Road going back to at least 1980. Although the
Applicant's evidence is not the kind of evidence the Code treats as "conclusive", it is evidence nonetheless.
In the absence of any persuasive evidence undermining the Applicant's evidence, I find that that Applicant
has satisfied its burden of showing the proposed dwelling can be located with 300 feet of that road as
required by this Code provision. Again, a condition of approval would be necessary to ensure compliance
with that dimensional standard, but this Decision does not approve the Application and, therefore, such a
condition is not warranted or imposed.
IV. CONCLUSION
Based on the foregoing, I find that the Applicant has not met its burden of demonstrating compliance with
all approval criteria necessary to establish a nonfarm dwelling in the EFU Zone. The Application is
therefore DENIED.
Dated this 1st day of October 2024.
Tommy A. Brooks
Deschutes County Hearings Officer
Page 113
Land Use Application
Appeal - BOCC
247-24-000629-A
www.deschutes.org/cd
APPLICATION DESCRIPTION
Type of Application: Appeal - BOCC
Description of Work: Conditional Use Permit - Nonfarm Dwelling
Property Address:
71510 Forest Service Rd No 6360, Sisters, OR
97759
Applicant:
SCHUTTE, JEFFREY A & CINDI R
Fee Description
Business Name:
LOCATION INFORMATION
Parcel:
1411026000300 - Primary
APPLICANT INFORMATION
SCHUTTE, JEFFREY A & CINDI R
Appeals to Board of County Commissioners Deposit
Appeals to Board of County Commissioners Additional Fee
(20% of original fee)
Address:
DESCHUTES COUNTY
117 NW Lafayette Avenue
PO Box 6005
Bend,OR 97703
541-388-6575
cdd@deschutes.org
Owner: SCHUTTE, JEFFREY A &
CINDI R
Address: 71415 FOREST SERVICE
RD #6360
SISTERS OR 97759
City:
State:
71415 FOREST SERVICE RD #6360 SISTERS OR
APPLICATIONFEES
Quantity
1.00 Qty
810.36 Amount
Total Fees:
Zip
97759
Amount
$4,069.00
$810.36
$4,879.36
Printed on: 10/10/2024
vTES
COMMUNITY DEVELOPMENT
APPEAL APPLICATION
FEE:
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review
by the Board stating the reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is
desired, a request for de novo review by the Board, stating the reasons the Board
should provide the de novo review as provided in Section 22.32.027 of Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading
delineating the color areas shall also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter
22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the
items listed above. Failure to complete all of the above may render an appeal invalid. Any
additional comments should be included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal
(DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal
advice concerning those issues.
Appellant's Name (print): Cindi and Jeff Schutte Phone: (541) 815-8244
Mailing Address: 71415 Forest Service Rd., No 6360 City/State/Zip: Sisters, OR 97759
Land Use Application Being Appealed: 247-24-000209-CU
Property Description: Township 14S Range 11E Section 2 Tax Lot 141102B000300
Appellant's Signature: Clndf Schutt° (Oct 9,20241216 MDT)
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A
COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES
PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH
MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING
DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE
SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR
RECEIPT OF WRITTEN RECORDS.
(over)
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 P.O. Box 6005, Bend, OR 97708-6005
e (541)388-6575 @ cdd@deschutes.org vvww.deschutes.org/cd
Rev 5/18
Final Audit Report 2024-10-09
Created: 2024-10-09
By: Wendy Smith (wendy@fitchandneary.com)
Status: Signed
Transaction ID: CBJCHBCAABAAu2HDcn6e09rzhttMb4EL1Ejs59kKTIB1
appeal" History
6 Document created by Wendy Smith(wendy@fitchandneary.com_.,,.,.-
2024-10-09 - 6:13:08 PM GMT
P. Document emailed to Cindi Schutte (classy44505@gmail.com) for signature
2024-10-09 - 6:13:31 PM GMT
t) Email viewed by Cindi Schutte (classy44505@gmail.com)
2024-10-09 - 6:14:54 PM GMT
lbe Document e-signed by Cindi Schutte (classy44505@gmaii.com)
Signature Date: 2024-10-09 - 6:16:28 PM GMT - Time Source: server
Agreement completed.
2024_10-09 - 6.16:28 PM GMT
Adobe Acrobat Sign
GI, FITCH & NEARY
LAND USE AUTHORIZATION FORM
For: Deschutes County Community Development
Re: Jeff Schutte and Cindi Schutte
Land Use Decision: Planning File # 247-24-000209-CU
Tax Map: 141102B000300. Account 124740
Situs: 71510 Forest Service Rd. 6360, Sisters, OR 97759
Lisa Andrach
Partner
lisa(afitchandneary.com
Wendy L. Smith
Paralegal
wendyPfitchandneary.com
Let it be known that the film of Fitch & Neary PC has been retained to act as my authorized agent to
perform all acts to submit for land use approval / permits for the above referenced property.
Appellant Jeff and Cindi Schutte
Cindi Schutte202412:13 MDT) 09/10/24
JEFF and CINDI SCHUTTE date
210 SW 5'1' St., Ste. #2 I Redmond OR 97756
Phone: 541.316.15881 Fax: 541.316.1943
LU S uthorization 2024.10.0
Final Audit Report
2024-10-09
Created: 2024-10-09
By: Wendy Smith (wendy@fitchandneary.com)
Status: Signed
Transaction ID: CBJCHBCAABAASnSuQZh6HOILS2L0EGJtt86-D9IDNgpn
"LU Authorization 2024.10.09" History
Document created by Wendy Smith (wendy@fitchandneary.com)
2024-10-09 - 6:11:09 PM GMT
14 Document emaiied to Cindi Schutte (ciassy44505@gmail.com) for signature
2024-10-09 - 6:11:13 PM GMT
Email viewed by Cindi Schutte (classy445O5@gmail.com)
2024-10-09 - 6:12:17 PM GMT
654 Document e-signed by Cindi Schutte (classy44505@gmail.com)
Signature Date: 2024-10-09 - 6:13:22 PM GMT - Time Source: server
Agreement completed.
2024-10-09 - 6:13:22 PM GMT
Adobe Acrobat Sign
Appeal Statement
APPLICANT/APPELLANT: Jeff and Cindi Schutte
APPELLANTS' ATTORNEY:
Fitch & Neary, PC
c/o Lisa Andrach, OSB #040012
210 SW 5th Street, #2
Redmond, OR 97756
Appeal of Decision and Findings of The Deschutes County Hearings Officer:
File No.: 247-24-000209-CU
Mailing Date: October 2, 2024
Proposal: Establishing a non -farm dwelling previously approved as part of a
non -farm partition in 2009.
A. Summary of application and appeal:
The Schuttes appeal the denial of the nonfarm dwelling application because it
misconstrued the applicable criteria and failed to consider the evidence in the record.
The nonfarm dwelling at issue has been previously approved twice (2) by the county.
First it was approved when the county approved the application to create the subject nonfarm
parcel in 2009. The parcel was created by the non -farm partition, but the prior owner let the
dwelling CUP expire.
In 2014, the county again approved the non -farm dwelling on the non -farm parcel. When
COLW appealed the decision, the applicant was not in a position to engage in the appeal
process so the approval was surrendered.
The Schuttes have now again applied for the non -farm dwelling on the existing non -farm
parcel. Since the prior approvals, other than the establishment of a few dwellings in the area,
the facts have not changed. Therefore, the facts and Findings from the prior decisions are still
relevant. Accordingly, the applicant submitted the facts and Findings and Decision from the
prior approvals (2009 and 2014) in support of this application.
Page 1 — APPEAL STATEMENT
FITCH & NEARY, P.C.
210 SW 5th St., Suite 2
Redmond, OR 97756
Phone: 541-316-1588
Fax: 541-316-1943
B. Assignments of Error on Appeal:
1. The Decision erroneously applied the "used in conjunction" test of CCC
18.16.050(G) to the "generally unsuitable" analysis. The test does not apply
here because the basis for the "unsuitability" is the poor Class VII soils of the
building envelope.
The hearings officer misconstrued the applicable law when he applied the "used in
conjunction" test to analyze the "generally unsuitable" standard for the proposed building
envelope. That test only applies when an applicant relies on the "size or location" of the
parcel to argue that the parcel is generally unsuitable for farm use. In such a case, the
applicant must show that the parcel cannot be used in conjunction with a commercial farm
operation as part of the analysis.
Here, the applicant was relying on the poor soils, not the "size or location" of the parcel
to allege "unsuitability." Notably, the entire parcel was found to be "generally unsuitable" in
2009 when the non -farm partition was approved with the proposed dwelling. However, here,
the applicant narrowed the focus to only the poor Class VII soils within the building
envelope to satisfy the unsuitability test. When relying upon the soils to establish
unsuitability of that portion of the parcel, the "used in conjunction" test does not apply. See
Central Oregon LandWatch v. Crook County, 294 Or.App. 762 (2018). Accordingly, an
appeal of the decision would likely be remanded to the county. This appeal avoids the time
and expense of an appeal and likely remand to the county.
2. The Hearings Officer ignored the applicable criteria and did not engage in
the required analysis of the state and local law, in favor of a new "50% rule"
shortcut he created.
The applicable criteria at issue requires an analysis of whether the approval of the non-
farm dwelling would "materially alter the stability of the overall land use pattern of the
area....by making it more difficult for the existing types of farms in the area to continue
operation due to diminished opportunities to expand, purchase or lease farmland, acquire
water rights or diminish the number of tracts or acreage in farm use in a manner that will
destabilize the overall character of the study area."
The hearings officer avoided that analysis in favor of creating his own simple math
equation "50% rule" to determine whether stability is materially altered. His shortcut rule
says that because this would constitute dwelling number 10 of the 19 privately -owned lots
that could be developed with a non -farm dwelling, this automatically "tips the scale" and
changes the stability of the land use pattern for the area from resource to non -resource use.
Page 2 — APPEAL STATEMENT
FITCH & NEARY, P.C.
210 SW 5' St., Suite 2
Redmond, OR 97756
Phone: 541-3 1 6-1588
Fax: 541-3 1 6-1943
Not only is this new 50% rule not in state or county law, the Decision does not engage in
the substantive analysis required to determine whether the dwelling "will materially alter the
stability of the overall land use pattern" such that it will "destabilize" farm use in the area.
The Decision completely ignores the required analysis in favor of making a new 50%
rule. What's even more erroneous is that this would only be the 10t1i dwelling within the 2000
acre study area, which equates to a density of 1 dwelling per 200 acres. This density is well
below what the county has recently approved for other non -farm dwellings when "there
appear to be more undeveloped EFU private parcels than those developed with residences" as
is the case here. (See Grossmann, 247-23-0000293-CU, 294-CU, 295-CU approving 3 non-
farm dwellings). In Grossmann, there were 43 dwellings in the study area, and the county did
not find that the dwellings materially altered stability or destabilized the intense farm use in
the area. (See Grossmann at page 22) Here, there is no irrigation district for the area, and the
surrounding area is primarily large tracts of USA public lands and/or large tracts held by
conservation Trusts or ranches used for dry open range grazing. Not only is there no loss to
farm use by this dwelling, but the surrounding lands are also not likely to ever be developed
because of their ownership, and 1 dwelling per 200 acres certainly does not tip the scale to
cause them to be developed.
As was established when the parcel was created in 2009, the parcel is not engaged in
farm use and is not considered valuable farmland. Allowing the dwelling on it does not
remove valuable farmland from productivity and does not "tip the scale" of the entire 1-mile
area to a "non -resource use." The decision shortcuts the analysis by creating a math equation
and ignores the balance of the criteria. There is no evidence to support that approval of this
dwelling will materially change the surrounding land use pattern or destabilize the farm uses
in the area.
3. Substantial evidence addressing farm impacts was in the record but
overlooked by the Hearings Officer.
The Decision ignores the evidence in the record regarding the surrounding farm uses and
impacts on the surrounding area. Perhaps the hearings officer overlooked the evidence? As
a result, the decision is not based upon the substantial evidence in the record.
C. Conclusion
An appeal of the erroneous decision to LUBA and/or the Court of Appeals will require
time and expense to the county to defend. The likely result is that the decision is ultimately
remanded to the county to fix the decision. Appellant is seeking de novo review to afford the
Board an opportunity to review the issues and correct the errors with minimal time and
expense to the county.
Page 3 — APPEAL STATEMENT
FITCH & NEARY, P.C.
210 SW 5' St., Suite 2
Redmond, OR 97756
Phone: 541-316-1588
Fax: 541-316-1943
It is also important for the Board to hear this appeal because this Decision is in conflict
with other decisions issued by county Hearings Officers. It is imperative that the Board
establish uniformity in the county decisions on these issues.
The application was very straight forward with only COLW appearing in opposition.
Therefore, there should be minimal time required of the Board and county staff to review the
matter de novo.
Finally, the appellant requests waiver of the transcript preparation as such transcript
would not be helpful in a de novo review.
DATED this 16 day of October 2024.
Page 4 — APPEAL STATEMENT
FITCH & NEARY PC
LISA A , OSB #040012
Of Attorneys for Applicant/Appellant
210 SW 5th St, Suite 2
Redmond, OR 97756
P: 541.3 1 6.15 88 F: 541.316.1943
Email: Lisa car fitchandneary.com
FITCH & NEARY, P.C.
210 SW 5"' St., Suite 2
Redmond, OR 97756
Phone: 541-316-1588
Fax: 541-316-1943