2025-219-Ordinance No. 2025-010 Recorded 7/15/2025REVIEWED G
LEGAL COUNSEL
Recorded in Deschutes Countv CJ2025-'219
Sieve Dennison, County Clerk
Commissioners' Journal 07/15/2025 1 1:48:30 AM
41�115
1`° iflifllfilllfillifflilfifi fi Ifi
r 2025-219
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County
Code Title 23, the Deschutes County
Comprehensive Plan, to Change the
Comprehensive Plan Map Designation for
Certain Property From Agriculture and Surface
Mining to Rural Residential Exception Area,
and Amending Deschutes County Code Title
18, the Deschutes County Zoning Map, to
Change the Zone Designation for Certain
Property From Exclusive Farm Use and Surface
Mining to Rural Residential.
*
* ORDINANCE NO. 2025-010
*
w
w
WHEREAS, Bend Park & Recreation District (BPRD), applied for changes to both the
Deschutes County Comprehensive Plan Map (247-24-000404-PA) and the Deschutes County
Zoning Map (247-24-000405-ZC), to change the comprehensive plan designation of the subject
property from Agricultural (AG) and Surface Mining (SM) to Rural Residential Exception Area
(RREA), and a corresponding zone change from Exclusive Farm Use (EFU) and Surface Mining (SM) .
to Rural Residential (RR-10); and
WHEREAS, after notice was given in accordance with applicable law, a public hearing was
held on November 12, 2024, before the Deschutes County Hearings Officer and, on January 8,
2025, the Hearings Officer recommended approval of the Comprehensive Plan Map Amendment
and Zone Change;
WHEREAS, pursuant to DCC 22.28.030(C), on April 2, 2025, the Board heard de novo the
applications to change the comprehensive plan designation of the subject property from
Agricultural (AG) and Surface Mining (SM) to Rural Residential Exception Area (RREA) and a
corresponding zone change from Exclusive Farm Use (EFU) and Surface Mining (SM) to Rural
Residential (RR-10); and now, therefore,
PAGE 1 OF 3 - ORDINANCE NO.2025-010
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as
follows:
Section 1. AMENDMENT, DCC Title 23, Deschutes County Comprehensive Plan Map, is
amended to change the plan designation for certain property described in Exhibit "A" and depicted
on the map set forth as Exhibit "B" from AG and SM to RREA, with both exhibits attached and
incorporated by reference herein.
Section 2. AMENDMENT. DCCTitle 18, Zoning Map, is amended to change the zone designation
from EFU and SM to RR-10 for certain property described in Exhibit "A" and depicted on the map set
forth as Exhibit "C", with both exhibits attached and incorporated by reference herein.
Section 3. AMENDMENT. DCC Section 23.01.010, Introduction, is amended to read as
described in Exhibit "D" attached and incorporated by reference herein, with new language
underlined.
Section 4. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative
History, is amended to read as described in Exhibit "E" attached and incorporated by reference
herein, with new language underlined.
Section 5. FINDINGS. The Board adopts as its findings in support of this Ordinance the
Recommendation of the Hearings Officer as set forth in Exhibit "F" and incorporated by reference
herein.
Section 6. EFFECTIVE DATE. This Ordinance takes effect on the 90t" day after the date of
adoption or, if appealed, the date the ordinance is no longer subject to appeal.
Dated this of U 2025 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
Recording Secretary
f
PHIL CHANG, Commissioner
Date of 1" Reading; ! - day of U , 2025.
PAGE 2 OF 3 - ORDINANCE NO.2025-010
^I
Date of 2" Reading: day of Vt-t , 2025.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Anthony DeBone
Patti Adair
Phil Chang
Effective date: do day of 2025. Or, if appealed, the date the ordinance is no
longer subject to appeal.
ATTEST
Recording
PAGE 3 OF 3 - ORDINANCE NO.2025-010
Exhibit "A" to Ordinance 2025-010
Legal Descriptions of Affected Properties
For Informational Purposes Only: Map and Tax Lot no.1812230000200
(Legal Description Begins Below)
;M
?s tract of :and located = the Northeast one -quarter. Southeast cce-malter, Southwest one-quUW and Northwe ,t
c e-4pwter of Section 23, Township 18 Soudx Range 12 Fast of the'%% ChWm �axutty,
Egon more particularly described a,:; follows:
C-marerdrg at dw SoWicarit confer afraid Section 23, marled by a M-inch iron rod; thence N89'46361-W
au a the South lure of Sechm 23 a distanve Of 30 00 feet to a POW on the WvA- right-of-way line of Arnold
",Sar$r•t Read; thence contnuing h-99°4636 ' along the Souaia lire of Section 23 a distance of 1753.05 feet to the
TRUE FOI T OF 13EGLWIN{r; thence N'29=2--,13'•W 14936 feet; thence .N3W'02'4l'-'0V 397,82 feet; d ce
N; 2`4716".' 344.09 feet; thence N-39-5? 15 W 419.70 feet: tl.errce Z347`77'3 't4' 87b.50 feet; tic ace
Yl ``t 73 V E.1402.04 feet:. thence S88142'1 SM 2611.04 feet 10 a P-Ant on the Meat tight -of -way line tfaltstold
t Imker Road, tberce along said'%est right -of way line Nl ®17 52 E 2269.64 feet to a point of cu n e; thence
continr ri t along :aid Xesi it* of wa}- ine. along the am of a tangent v&00 foot radar curve to the left, though
a centt-al ale of 16-'33°55" (&e chord of which tags N6159' 11" Ui 14.41 feet) an arc leng& of 14.46 feet to a
paint tic tie South cif t-of-tuay hae ofRiclmrd Roo as conveyed in Dedwation Deed in Voh=L- 200-), hge
44094, Des fumes Cotuaty Offwia Records; thence along said South rigid -of -way lime the following
centre; ti39=0032' �V 152,93 fimt thence N82"O4'4Q'W 155.57 feet-, dirmt. N76`07'29"W 7 ?.29 feet: thence
:ti $VOY3?°ti' 55.49 feet; thence along the arc ofa maAaAgeat 537.37 foot radius rtu v to tier left: thmigh a
central angle of U*04'15" (tie chord ofwhich bearu N83--28'24'ttd. 103.E+7 feet) an arc length of 103.83 feet to the
p dint of taagenc y - said point being 30.00 feet Sou oars When nwa.sizLd at right angles to the zentedine of
a d Riclard Road thence NYS9'00'3,2',do' 1456.15 feet. contimung along the South right -of s�aNr life of said
1 xkarsi Road. to at poi of cur4•atetre;. thence along the are of a tangent I MOM foot radius• curse to the right,
theurpli a central angle of 815 }'S 1" (±F.e+c&x4 of %vttich beano N SV3*06"W, 159.49 feet) an arc leugh of 159.65
fieer to the point of twgenzy; truce conficulag atoug the 5044 a ci "f-wary line of Rickard Read, NW07`41 "%'k1
1 r4.:`4 feet to a point on the North line of said. Sectiou 2.3; thence leaving said Sit right -of way lire and
u atone theNorth hw of-�wd Section 23. N99000'32"W 344A3 feet to the North quarter corner of said
Se ioa 23: thence along the Ea,t line of the Notlwe one-tluvler of said Section 23_ S I °13'52MT 659.17 feet to
tl e Southeasr comer of t'�e Not*1 half of the NoAbeait quarter of the Northwest gttarti&- of said Section ' 3; thence
,%Iouz the South titre of said No0h half of the. Nwtlwwt quarter of the Northuvst quarter. N89 ' 2650" W 556.19
feet tts tht N arthearat comer of that certain tract of land conveyed to Douglas Muck et ux, in Vothinie 119, page
040. lCchutev OUtity 0ffreiA Records; thence along the Southerly lire of said Muck-- tract. S7112,4 00'W
511.66 feet to the Southwest cons thereof, the # along the West lute ofsaid -Muck tract; NO333'Ol'"U' 27 2.91
feet to tl:e N<x1hmeat conger therwL being a point an the: girth Uw of *adNcigth half of t%Itioatheast quarter of
the Nortbu gist Tiartaer of said Section 23; thence akmg said South lime, N89,20501"' 10.go feet to the Southwest
c:wior of thp Noah half of the Northeast rfaarter of the Northwest quarter of said Section 23. dwatce alb the
�Ve�t I= cf the Nottheniit r1miev of the :` orth%veit quarer of :aid Section 23, SC1'4V12"IV 659.12 feet to the
Southwest corner thereof; thence aloag the Nest line ofthe Southeast quattrr ofthe Northxvst quarte a of said
Sectik-L 23, SO:4 7'39"W 1317.94 feet to rlte Soutbwe:t corner- thereof; them along fife V6, t lilac oftiue :Vorthea_t
gw-tr ofthe Soutihn # atuaater of said Section 23, and along the East line of Far6tiou plat No 1991-40.
S07341047V 2656 U6 feet to the Sotttlteas3 cornea` thereof being the Southwest comer of the Southeaq gumter of
the Seuthwest quarter of. said Section 23; thertie along the South line of said Section 23, S 84',W36 1; 1317,19
feet to the South quarter comer of said Seines 23; thence coutimling along the South line of said Sechou 23,
S39146361. 852.70 feet to the TRUE POINT OF BEGINNT40
1EXCEPTING —1 FW=OF.M those portions I-t ram yr thin the bOWUb crfft-.e certain tracts of laud de4cr bed in
Dedication Reed recorded October 31, 2001 as Jwttuuww :1 e. ' OI-53597 and Dedication Deed recorded August
15, 2002 as Im5truauent Nan_ 200244094 and DericVtou Deed recorded April 26, 2007 a. lestrt numt No,. 200%a
® .0 Q aA Dedication Deedrecerded April 26. 2007 as Ia.tin aaeatt No. 200;-24053. Deschutes County Records,
TOGETHER WITH t.tat "cared pottion vtLch itmed to said property by OnW ce No, MI0.054, recorded
NoMilmr 3. 2010 a, Instr-.nxmi No. 201.0-43870, Deseiustes C'oimty ite5cords.
Bend UGB
RREA
Plan Amendment Boundary
Bend Urban Growth Boundary (UGB)
Comprehensive Plan
RREA - Rural Residential
Exception Area
AG -Agriculture
SM - Surface Mining
RREA
Taxlot
18-12-23-00-00200
Proposed Plan Amendment
from Agriculture (AG) and Surface Mining (SM)
to
Rural Residential Exception Area (RREA)
PROPOSED
COMPREHENSIVE PLAN
Exhibit "B"
to Ordinance 2025-010
� V
0 375 750 1,500
Feet
June 02, 2025
BOARD OF COUNTY COMMISSIONERS
M—ZX=
GON
VyDeBe, hair Chair
PhiIWChang, Commissioner
ATTEST: Recording Secretary
Dated this _?Z5 day of ff_u_�025
q
Effective Date: 1 - ?0 2025
Bend UGB
1�
TRB
ImZone Change Boundary
Bend Urban Growth Boundary (UGB)
Zoning
EFUTRB - Exclusive Farm Use
SM - Surface Mining
u RR10 -Rural Residential
Proposed2one'phange
U
Exclusive W Farm'Use�(EF,I
and Surface. Mimnq (SM'.
PROPOSED
ZONING
Exhibit "C"
to Ordinance 2025-010
V V
0 375 750 1.500
Feet
June 02, 2025
EFUTRB
BOARD OF COUNTY COMMISSIONERS
OF D CHUT C NTY, OREGON
n ony DeBone, hair
pl �
Patti Adair, Vice Chair
Phil Cha ,Commissioner
/J���/
A R T. Recording Secretary
51
Dated this I 9 day of ae�2025
Effective Date: e -b3 , 2025
TITLE 23 COMPREHENSIVE PLAN
CHAPTER 23.01 COMPREHENSIVE PLAN
A. The Deschutes County Comprehensive Plan, adopted by the Board in Ordinance 2011-003 and
found on the Deschutes County Community Development Department website, is incorporated
by reference herein.
B. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2011-027, are incorporated by reference herein.
C. [Repealed by Ordinance 2013-001, §1]
D. [Repealed by Ordinance 2023-0171
E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-012, are incorporated by reference herein.
F. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-016, are incorporated by reference herein.
G. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-002, are incorporated by reference herein.
H. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-009, are incorporated by reference herein.
I. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-012, are incorporated by reference herein.
J. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-007, are incorporated by reference herein.
K. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-005, are incorporated by reference herein.
L. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-006, are incorporated by reference herein.
M. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-012, are incorporated by reference herein.
N. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-021, are incorporated by reference herein.
0. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-027, are incorporated by reference herein.
P. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-021, are incorporated by reference herein.
Q. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-029, are incorporated by reference herein.
R. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-018, are incorporated by reference herein.
S. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-010, are incorporated by reference herein.
T. [Repealed by Ordinance 2016-027 §1]
U. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-022, are incorporated by reference herein.
V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-005, are incorporated by reference herein.
W. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-027, are incorporated by reference herein.
X. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-029, are incorporated by reference herein.
Y. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2017-007, are incorporated by reference herein.
Z. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-002, are incorporated by reference herein.
AA. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-006, are incorporated by reference herein.
AB. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-011, are incorporated by reference herein.
AC. [repealed by Ord. 2019-010 §1, 2019]
AD. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-008, are incorporated by reference herein.
AE. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-002, are incorporated by reference herein.
AF. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-001, are incorporated by reference herein.
AG. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-003, are incorporated by reference herein.
AH. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-004, are incorporated by reference herein.
Al. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-011, are incorporated by reference herein.
Ah The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-006, are incorporated by reference herein.
AK. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-019, are incorporated by reference herein.
AL. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-016, are incorporated by reference herein.
AM. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-001, are incorporated by reference herein.
AN. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-002, are incorporated by reference herein.
AO. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-003, are incorporated by reference herein.
AP. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-008, are incorporated by reference herein.
AQ. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-007, are incorporated by reference herein.
AR. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-006, are incorporated by reference herein.
AS. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-009, are incorporated by reference herein.
AT. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-013, are incorporated by reference herein.
AU. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2021-002, are incorporated by reference herein.
AV. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2021-005, are incorporated by reference herein.
AW. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2021-008, are incorporated by reference herein.
AX. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2022-001, are incorporated by reference herein.
AY. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2022-003, are incorporated by reference herein.
AZ. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2022-006, are incorporated by reference herein.
BA. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2022-010, are incorporated by reference herein.
BB. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2022-011, are incorporated by reference herein. (superseded by Ord. 2023-015)
BC. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2022-013, are incorporated by reference herein. (supplemented and controlled
by Ord. 2024-010)
BD. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2023-001, are incorporated by reference herein.
BE. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-007, are incorporated by reference herein.
BF. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-010 are incorporated by reference herein.
BG. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-018, are incorporated by reference herein.
BH. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-015, are incorporated by reference herein.
BI. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-025, are incorporated by reference herein.
BJ. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2024-001, are incorporated by reference herein.
BK. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2024-003, are incorporated by reference herein.
BL. The Deschutes County Comprehensive Plan, adopted by the Board in Ordinance 2024-007
and found on the Deschutes County Community Development Department website, is
incorporated by reference herein.
BM. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2024-010, are incorporated by reference herein.
BN. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-017, are incorporated by reference herein.
BO. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-016, are incorporated by reference herein.
BP. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2024-011, are incorporated by reference herein.
BQ. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2024-012, are incorporated by reference herein.
BR. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2025-001, are incorporated by reference herein.
BS. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2025-003, are incorporated by reference herein.
BT The Deschutes County Comprehensive Plan amendments adopted by the Board in Ordinance
2025-010 are incorporated by reference herein.
Click here to be directed to the Comprehensive Plan(httD://www.deschutes.org/compplan)
Exhibit "E" to Ordinance 2025-010
,Sect%ov�, 57.12 Leq*sLat%ve �fLstor! 1
Background
This section contains the legislative history of this Comprehensive Plan.
Table 5.12.1 Comprehensive Plan Ordinance History
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
Exhibit "E" to Ordinance 2025-010
Ordinance
Date Adopted/
Effective
Chapter/Section
Amendment
All, except
Transportation, Tumalo
and Terrebonne
201 1-003
8-10-1 1/ 1 1-9-1 1
Community Plans,
Deschutes )unction,
Comprehensive Plan update
Destination Resorts and
ordinances adopted in
2011
2.5, 2.6, 3.4, 3.10, 3.5,
Housekeeping amendments
201 1-027
10-31-1 1 / 1 1-9-1 1
4.6, 5.3, 5.8, 5.1 1,
to ensure a smooth
23.40A, 23.40B,
transition to the updated
23.40.065, 23.01.010
Plan
23.60, 23.64 (repealed),
Updated Transportation
2012-005
8-20-12/ 1 1-19-12
3.7 (revised), Appendix
System Plan
C (added)
2012-012
8-20-12/8-20-12
4. I, 4.2
La Pine Urban Growth
Boundary
Housekeeping amendments
2012-016
12-3-12/3-4-13
3.9
to Destination Resort
Chapter
Central Oregon Regional
2013-002
1-7-13/ 1-7-13
4.2
Large -lot Employment Land
Need Analysis
Comprehensive Plan Map
Amendment, changing
2013-009
2-6- 13/5-8-13
1.3
designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan Map
Amendment, including
2013-012
5-8-13/8-6-13
23.01.010
certain property within City
of Bend Urban Growth
Boundary
Newberry Country: A Plan
2013-007
5-29-13/8-27-13
3.10, 3.1 1
for Southern Deschutes
Count
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
Exhibit "E" to Ordinance 2025-010
Comprehensive Plan Map
10-21-13/ 10-21-
Amendment, including
2013-016
13
23.01.010
certain property within City
of Sisters Urban Growth
Boundar
Comprehensive Plan Map
Amendment, including
2014-005
2-26-14/2-26-14
23.01.010
certain property within City
of Bend Urban Growth
Boundary
2014-012
4-2- 14/7- I -14
3. 10, 3. I I
Housekeeping amendmentsto
Title 23.
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver
2014-021
8-27-14/ 1 1-25-14
23.01.010, 5.10
Urban Unincorporated
Community Forest to
Sunriver Urban
Unincorporated Community
Utility
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver
2014-021
8-27-14/ 1 1-25-14
23.01.010, 5.10
Urban Unincorporated
Community Forest to
Sunriver Urban
Unincorporated Community
Utilit
Comprehensive Plan Map
Amendment, changing
2014-027
12-15-14/3-31-15
23.01.010, 5.10
designation of certain
property from Agriculture to
Rural Industrial
Comprehensive Plan Map
Amendment, changing
2015-021
1 1-9-15/2-22-16
23.01.010
designation of certain
property from Agriculture to
Surface Mining.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
Exhibit " E" to Ordinance 2025-010
Comprehensive Plan Map
Amendment, changing
2015-029
1 1-23-15/ 1 1-30-
23.01.010
designation of certain
15
property from Tumalo
Residential 5-Acre Minimum
to Tumalo Industrial
2015-018
12-9-15/3-27-16
23.01.010, 2.2, 4.3
Housekeeping Amendments
to Title 23.
Comprehensive Plan Text
2015-010
12-2-15/ 12-2-15
2.6
and Map Amendment
recognizing Greater Sage -
Grouse Habitat Inventories
Comprehensive Plan Map
Amendment, changing
2016-001
12-21-15/04-5-16
23.01.010; 5.10
designation of certain
property from, Agriculture
to Rural Industrial (exception
area
Comprehensive Plan
Amendment to add an
exception to Statewide
2016-007
2-10-16/5-10-16
23.01.010; 5.10
Planning Goal I I to allow
sewers in unincorporated
lands in Southern Deschutes
Count
Comprehensive Plan
Amendment recognizing non-
2016-005
1 1-28-16/2-16-17
23.01.010, 2.2, 3.3
resource lands process
allowed under State law to
change EFU zoning
Comprehensive plan
Amendment, including
2016-022
9-28-16/ 1 1-14-16
23.01.010, 1.3, 4.2
certain property within City
of Bend Urban Growth
Boundary
Comprehensive Plan Map
Amendment, changing
2016-029
12-14-16/ 12/28/ 16
23.01.010
designation of certain
property from, Agriculture
to Rural Industrial
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION S.12 LEGISLATIVE HISTORY
Exhibit "E" to Ordinance 2025-010
Comprehensive Plan Map
Amendment, changing
2017-007
10-30-17/ 10-30-
23.01.010
designation of certain
17
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan
2018-002
1-3-18/ 1-25-18
23.01, 2.6
Amendment permitting
churches in the Wildlife Area
Combining Zone
Housekeeping Amendments
correcting tax lot numbers in
Non -Significant Mining
2018-006
8-22-18/ 1 1-20-18
23.01.010, 5.8, 5.9
Mineral and Aggregate
Inventory; modifying Goal 5
Inventory of Cultural and
Historic Resources
Comprehensive Plan Map
Amendment, changing
2018-0 I I
9- 12- 18/ 12- I I -18
23.0 I.010
designation of certainproperty
from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan Map
Amendment, removing Flood
23.01.010, 2.5, Tumalo
Plain Comprehensive Plan
2018-005
9-19-18/ 10-10-18
Community Plan,
Designation; Comprehensive
Newberry Country Plan
Plan Amendment adding
Flood Plain Combining Zone
purpose statement.
Comprehensive Plan
Amendment allowing for the
2018-008
9-26- 18/ 10-26-18
23.01.010, 3.4
potential of new propertiesto
be designated as Rural
Commercial or Rural
Industrial
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
Exhibit " E" to Ordinance 2025-010
Comprehensive Plan Map
Amendment changing
designation of certain
property from Surface Mining
to Rural Residential
2019-002
1-2-19/4-2-19
23.01.010, 5.8
Exception Area; Modifying
Goal S Mineral and
Aggregate Inventory;
Modifying Non -Significant
Mining Mineral and Aggregate
Inventor
Comprehensive Plan and
2019-001
1-16-19/4-16-19
1.3, 3.3, 4.2, 5.10, 23.01
Text Amendment to add a
new zone to Title 19:
Westside Transect Zone.
Comprehensive Plan Map
Amendment changing
designation of certain
2019-003
02-12-19/03-12-
23.01.010, 4.2
property from Agriculture to
19
Redmond Urban Growth
Area for the Large Lot
Industrial Program
Comprehensive Plan Map
Amendment changing
designation of certain
property from Agriculture to
2019-004
02-12-19/03-12-
23.01.010, 4.2
Redmond Urban Growth
19
Area for the expansion of
the Deschutes County
Fairgrounds and relocation of
Oregon Military Department
National Guard Armory.
Comprehensive Plan Map
Amendment to adjust the
Bend Urban Growth
Boundary to accommodate
the refinement of the Skyline
Ranch Road alignment and
2019-01 1
05-01-19/05-16/ 19
23.01.010, 4.2
the refinement of the West
Area Master Plan Area I
boundary. The ordinance
also amends the
Comprehensive Plan
designation of Urban Area
Reserve for those lands
leaving the UGB.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
Exhibit "E" to Ordinance 2025-010
Comprehensive Plan Map
Amendment, changing
2019-006
03-13-19/06-1 1-
23.01.010,
designation of certain
19
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan and
Text amendments
1 1-25-19/02-24-
incorporating language from
2019-016
20
23.01.01, 2.5
DLCD's 2014 Model Flood
Ordinance and Establishing a
purpose statement for the
Flood Plain Zone.
Comprehensive Plan and
Text amendments to provide
procedures related to the
2019-019
12-1 1-19/ 12-1 1-
23.01.01, 2.5
division of certain split zoned
19
properties containing Flood
Plain zoning and involving a
former or piped irrigation
canal.
Comprehensive Plan and
Text amendments to provide
procedures related to the
2020-001
12-1 1-19/ 12-1 1-
23.01.01, 2.5
division of certain split zoned
19
properties containing Flood
Plain zoning and involving a
former or piped irrigation
canal.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
Exhibit "E" to Ordinance 2025-010
Comprehensive Plan Map
Amendment to adjust the
Redmond Urban Growth
Boundary through an equal
exchange of land to/from the
Redmond UGB. The
exchange property is being
offered to better achieve
2020-002
2-26-20/5-26-20
23.01.01, 4.2, 5.2
land needs that were detailed
in the 2012 SB 1544 by
providing more development
ready land within the
Redmond UGB. The
ordinance also amends the
Comprehensive Plan
designation of Urban Area
Reserve for those lands
leaving the UGB.
Comprehensive Plan
Amendment with exception
to Statewide Planning Goal
2020-003
02-26-20/05-26-
23.01.01, 5.10
11 (Public Facilities and
20
Services) to allow sewer on
rural lands to serve the City
of Bend Outback Water
Facility.
Comprehensive Plan
Transportation System Plan
Amendment to add
06-24-20/09-22-
roundabouts at US 20/Cook-
2020-008
20
23.01.010, Appendix C
O.B. Riley and US 20/01d
Bend -Redmond Hwy
intersections; amend Tables
5.33 1 and 5.372 and amend
TSP text.
07-29-20/ 10-27-
Housekeeping Amendments
2020-007
20
23.01.010, 2.6
correcting references to two
Sage Grouse ordinances.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
Exhibit "E" to Ordinance 2025-010
Comprehensive Plan and
Text amendments to update
the County's Resource List
2020-006
08-12-20/ 1 1-10-
23.01.01, 2.1 I, 5.9
and Historic Preservation
20
Ordinance to comply with
the State Historic
Preservation Rule.
Comprehensive Plan
Transportation System Plan
Amendment to add
2020-009
08-19-20/ 1 1-17-
23.01.010, Appendix C
reference to J turns on US
20
97 raised median between
Bend and Redmond; delete
language about disconnecting
Vandevert Road from US 97.
Comprehensive Plan Text ,
And Map Designation for
Certain Properties from
Surface Mine (SM) and
Agriculture (AG) To Rural
2020-013
08-26-20/ 1 1 /24/20
23.01.01, 5.8
Residential Exception Area
(RREA) and Remove Surface
Mining Site 461 from the
County's Goal 5 Inventory of
Significant Mineral and
Aggregate Resource Sites.
Comprehensive Plan Map
2021-002
01-27-21 /04-27-
23.01.01
Designation for Certain
21
Property from Agriculture
AG To Rural Industrial RI
Comprehensive Plan Map
Amendment Designation for
Certain Property from
2021-005
06-16-21 /06-16-
23.01.01, 4.2
Agriculture (AG) To
21
Redmond Urban Growth
Area (RUGA) and text
amendment
Comprehensive Plan Map
Amendment Designation for
Certain Property Adding
2021-008
06-30-21/09-28-
23.01.01
Redmond Urban Growth
21
Area (RUGA) and Fixing
Scrivener's Error in Ord.
2020-022
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
Exhibit "E" to Ordinance 2025-010
Comprehensive Plan Map
Amendment, changing
2022-001
04-13-22/07-12-
23.01.010
designation of certain
22
property from Agriculture
(AG) to Rural Residential
Except on Area RREA
Comprehensive Plan Map
Amendment, changing
2022-003
04-20-22/07-19-
23.01.010
designation of certain
22
property from Agriculture
(AG) to Rural Residential
Except on Area RREA
Comprehensive Plan Map
Amendment, changing
06-22-22/08-19-
designation of certain
2022-006
22
23.01.010
property from Rural
Residential Exception Area
(RREA) to Bend Urban
Growth Area
07-27-22/ 10-25-
Comprehensive Plan Map
2022-01 1
22
23.01.010
Designation for Certain
(superseded by
Property from Agriculture
Ord. 2023-015)
(AG To Rural Industrial RI
12-14-22/03-14-
Comprehensive Plan Map
23
Designation for Certain
2022-013
(supplemented
23.01.010
Property from Agriculture
and controlled by
(AG) to Rural Residential
Ord. 2024-010)
Exception Area RREA
Housekeeping Amendments
correcting the location for
2023-001
03-01-23/05-30-
23.01.010, 5.9
the Lynch and Roberts Store
23
Advertisement, a designated
Cultural and Historic
Resource
Comprehensive Plan Map
Designation for Certain
2023-007
04-26-23/6-25-23
23.01.010
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
10 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
Exhibit "E" to Ordinance 2025-010
Comprehensive Plan Map
Designation for Certain
2023-010
06-21-23/9-17-23
23.01.010
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
Comprehensive Plan Map
2023-018
08-30-23/ 1 1-28-
23
23.01.010
Designation for Certain
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
Comprehensive Plan Map
2023-015
9-13-23/ 12-12-23
23.01.010
Designation for Certain
Property from Agriculture
(AG) to Rural Industrial (RI)
Comprehensive Plan Map
Amendment, changing
designation of certain
2023-025
1 1-29-23/2-27-24
23.01.010
property from Rural
Residential Exception Area
(RREA) to Bend Urban
Growth Area
Comprehensive Plan Map
Amendment, changing
designation of certain
2024-001
1-31-24/4-30-24
23.01.010
property from Rural
Residential Exception Area
(RREA) to Bend Urban
Growth Area
2023-016
5-8-24/8-6-24
23.01(BM) (added), 4.7
(amended), Appendix B
Updated Tumalo Community
(replaced)
Plan
23.01(D) (repealed),
2023-017
3-20-24/6-20-24
23.01(BJ) (added), 3.7
Updated Transportation
(amended), Appendix C
System Plan
(replaced)
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
Exhibit "E" to Ordinance 2025-010
Comprehensive Plan Map
Amendment, changing
designation of certain
2024-003
2-21-24/5-21-24
23.01.010, 5.8
property from Surface Mining
(SM) to Rural Residential
Exception Area (RREA);
Modifying Goal 5 Mineral and
Aggre ate Inventor
Repeal and Replacement of
2024-007
10-02-24/ 12-31-
23.01(A)(repealed)
2030 Comprehensive Plan
24
23.01(BK) (added)
with 2040 Comprehensive
Plan
Comprehensive Plan Map
10-16-24/01-14-
Designation for Certain
2024-010
25
23.01.010
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
Comprehensive Plan Map
1 1-18-24/02-17-
Designation for Certain
2024-01 1
25
23.01.010
Property from Agriculture
(AG) to Redmond Urban
Growth Area (RUGA)
Comprehensive Plan Map
Designation for Certain
2024-012
1-8-25/4-8-25
23.01.010
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
Comprehensive Plan and
Zoning Map Amendment
2025-001
2-5-25/2-5-25
23.01.010
updating the Greater Sage -
Grouse Area Combining
Zone boundary.
Comprehensive Plan
2025-003
4-2-25/7-1-25
23.0 I.010
Designation for CertainProperty
from Agriculture
(AG) to Rural Industrial (RI)
12 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION S.12 LEGISLATIVE HISTORY
Exhibit "E" to Ordinance 2025-010
Comprehensive Plan Map
Designation for Certain
2025-010 TBD 23.01.010 Property from Agriculture
(AG) and Surface Mining(SM)
to Rural Residential Exception
Area RREA
13 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
Mailing Date:
Wednesday, January 8, 2025
HEARINGS OFFICER RECOMMENDATION
FILE NUMBERS: 247-24-000404-PA, 247-24-000405-ZC
SUBJECT PROPERTY/
OWNER: Mailing Name: BEND PARK & RECREATION DISTRICT
Map and Taxlot: 1812230000200
Account: 112113
Situs Address: 60725 ARNOLD MARKET RD, BEND, OR 97701
APPLICANT: Bend Park & Recreation District (BPRD)
ATTORNEY: Tia M. Lewis
Schwabe, Williamson & Wyatt, P.C.
360 SW Bond Street, Suite 500
Bend, OR 97702
REQUEST: The Applicant requests approval of a Comprehensive Plan Amendment
to change the designation of the subject property (+/- 279 Acres) from
Agricultural (AG) and Surface Mining (SM) to Rural Residential Exception
Area (RREA). The Applicant also requests a corresponding Zone Change
to rezone the subject property from Exclusive Farm Use - Tumalo/
Redmond/ Bend subzone (EFU-TRB) & Surface Mining (SM) to Rural
Residential (RR10).
STAFF CONTACT: Nathaniel Miller, AICP, Associate Planner
Phone: 541-317-3164
Email:.Nathaniel.Miller@deschutes.org
RECORD: Record items can be viewed and downloaded from:
www.buildingpermits.oregon.gov
WEBPAGE: https://www deschutes org/cd/page/247-24-000404-pa-405-zc-bend-
park-and-recreation-district-bprd-comprehensive-plan-amendment
HEARINGS OFFICER: Gregory) Frank
1
1. APPLICABLE CRITERIA
Title 18 of the Deschutes County Code, the County Zoning Ordinance:
Chapter 18.04, Title, Purpose, and Definitions
Chapter 18.16, Exclusive Farm Use Zones (EFU)
Chapter 18.52, Surface Mining Zone (SM)
Chapter 18.56, Surface Mining Impact Area Combining Zone (SMIA)
Chapter 18.60, Rural Residential Zone (RR10)
Chapter 18.136, Amendments
Title 22, Deschutes County Development Procedures Ordinance
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Chapter 3, Rural Growth Management
Appendix C, Transportation System Plan
Oregon Administrative Rules (OAR), Chapter 660
Division 12, Transportation Planning
Division 15, Statewide Planning Goals and Guidelines
Division 23, Procedures and Requirements for Complying with Goal 5
Division 33, Agricultural Land
Oregon Revised Statutes (ORS)
Chapter 215.010, Definitions
Chapter 215.211, Agricultural Land, Detailed Soils Assessment
11. FINDINGS AND CONCLUSIONS
A. Preliminary Findings:
1. Purpose of the Preliminary Findings
The Hearings Officer, in these Preliminary Findings, responds to issues raised by Central Oregon
LanclWatch ("COLW"). These Preliminary Findings are intended to provide an overview of the COLW
issues, discussion of relevant laws/rules related to those issues and the Hearings Officer's legal
interpretation of various sections of the Deschutes County Code ("DCC") and State
statutes/regulations as relevant to the identified COLW issues. The Hearings Officer incorporates
these Preliminary Findings as additional findings for relevant approval criteria.
2. Reclamation of SM Zoned Land
COLW stated that the Applicant's proposal in this case must be denied because it failed to meet the
following:
2
"the SM zone may only be terminated and rezoned once the mining site has been reclaimed in
accordance with the reclamation plan approved by DOGMI or the reclamation provision of DCC 18."
(COLW, 11/12/2024, page 3)
It appears that COLW SM termination argument is twofold: First, COLW argued that the SM zoned
property in this case did not meet Oregon Department of Geology and Mineral Industries
("DOGAMI") requirements. Second, COLW argued that the SM zoned property did not meet DCC
Title 18 requirements. The Hearings Officer shall address both COLW arguments.
The Hearings Officer takes note of Deschutes County decision 247-23-000709-MC (hereafter the
"Modified Reclamation Plan Decision"). The stated purpose of the Modified Reclamation Plan
Decision was to
document existing site conditions, clarify the obligations in the reclamation plan, to identify the
remaining items to be completed and to modify and remaining reclamation requirements through an
Amended Reclamation Plan.
The Modified Reclamation Plan Decision also stated that
the applicant's proposed modification plan would replace an outdated, unrealistic reclamation plan
under SP-92-98 with a specific plan that complies with current county and DOGAMI standards and
that will have minimal impact on surrounding properties.
The Hearings Officer also takes note of DCC 18.52.200 A. This section of the DCC states:
When a surface mining site has been fully or partially mined, and the operator demonstrates that a
significant resource no longer exists on the site, and the site has been reclaimed in accordance with
the reclamation plan approved by DOGAMI or the reclamation provisions of DCC 18, the property
shall be rezoned...
The Hearings Officer finds that DCC 18.52.200 A contains the word "or
inserted between the DOGAMI reclamation requirement and the DCC 18 reclamation requirement.
The Hearings Officer finds that if either the DOGAMI "or" DCC 18 reclamation requirement is met
then the DCC reclamation requirements of DCC 18.52.200 A are satisfied.
The Hearings Officer first addresses the COLW argument that alleges that the Subject Property has
not been reclaimed in accordance with DOGAMI requirements. Initially, the Hearings Officer finds
COLW offered no authoritative evidence or legal support that the SM zoned portion of the Subject
Property failed to meet DOGAMI reclamation requirements. COLW focused its comments on the
bare fact that only partial reclamation had been accomplished not how partial reclamation failed to
meet DOGAMI requirements.
The Hearings Officer next takes note of findings included in the Modified Reclamation Plan Decision.
The following are specific references to the satisfaction of DOGAMI reclamation requirements found
in the Modified Reclamation Plan Decision:
c
Attached hereto as Exhibit 4 is a Memo dated October 14, 2011 from Robert Huston, Natural Resource
Specialist with DOGAMI to the owner of the subject property indicating 'Reclamation has been
completed' and "(a]ll obligations to the State of Oregon have been fulfilled, and the file has been
closed." [finding for DCC 18.52.080 B., page 11 of 211
Correspondence from DOGAMI in the record as Exhibit 4 demonstrates DOGAMI is satisfied with the
site reclamation and has closed the file. [findings for DCC 18.52.130 A., page 18 of 21]
The Hearings Officer finds, based upon the evidence in the record, that the DOGAMI reclamation
requirement in DCC 18.52.200 A has been met. While the Hearings Officer finds that the satisfaction
of the DCC 18.52.200 A. DOGAMI requirement is dispositive, the Hearings Officer also addresses the
Title 18 requirement.
COLW provided the following comments related to the DCC 18.52.200 Title 18 requirement:
At issue is whether the site reclamation has been completed in accordance with the 2023 Amended
Reclamation Plan. The answer is no. The Amended Reclamation Plan approved by the County created
a series of reclamation conditions contingent upon future BPRD development plans. Because BPRD
has not yet redeveloped the property, these reclamation goals have not been achieved. For example,
in reference to revegetation, the Amended Reclamation Plan provides- 'Based upon existing soil
conditions some additional re -vegetation is proposed primarily within a 14.5-acre area that was not
previously reclaimed in the southernmost portion of the site.' Application Materials, p. 272. This
revegetation has not occurred. Another plan condition is similarly incomplete, noting that the '(t]he
original DOGAMI reclamation plan (circa 1992) also called for reseeding with Crested Wheat, which
may also be incorporated into future BPRD re -vegetation plans. Final reclamation grading work will
minimize disturbance in those areas that have been revegetated. Natural re -vegetative processes are
expected to continue and will be supplemented with additional re -vegetation work included with
future BPRD development plans.'Application Materials, p. 272. The Amended Reclamation Plan also
requires grading of the property and the distribution of stockpiled topsoil. Application Materials, p.
271-272. Other plan conditions will be completed in the future, providing simply that reclamation
activities are 'To be determined based upon future BPRD development plans.'Application Materials,
p. 272-273.
What is more, there appears to be no argument that the reclamation has been completed. In their
burden of proof, the applicant admits that 'mining at the site ceased in 2005 and it has remained in
a partial state of reclamation since that time.' (emphasis added) Application Materials, p. 25. An
admission that reclamation work is incomplete is problematic for the applicant. A property in a state
of partial reclamation cannot be considered 'reclaimed' as required under county code to rezone the
subject property. DCC18.52.200.
Moreover, the 2023 Amended Reclamation Plan explicitly requires complete reclamation prior to an
application for a re -zone. "C. Previous Site Plan Review Conditions" provides that 'unless explicitly
modified by this decision, the previous conditions of approval in SP-92-98 shall remain in effect.'
Application Materials, p. 85. Condition 11 of SP-92-98 (as modified) provides that the 'Developer shall
apply to Deschutes County to rezone the subject property after the site has been reclaimed in
M
accordance with the amended reclamation plan approved by the County.' Application Materials, p.
73. Condition 11 clearly and explicitly states that the developer shall apply for the rezone after the site
has been reclaimed. Here, in the Applicant's own words, the property is in a 'partial state of
reclamation' Application Materials, p. 25. As a result, the property is ineligible for rezoning because it
has not been reclaimed in accordance with the Amended Reclamation Plan approved by the County.
The Hearings Officer believes the most important issue raised by COLW in the above -quoted
comments is:
Because BPRD has not yet redeveloped the property, these reclamation goals have not been
achieved."
Applicant responded to COLW's above -quoted comments (Final Argument, 12/9/2024, page 2) as
follows:
The Amended Reclamation Plan was approved by the County via the Modification of Conditions
Decision, Exhibit 4 [footnote omitted] The Modification of Conditions Decision specifically recognized
the existing site conditions, the incorrect information relied on to create the SP-92-98 conditions, and
modified the reclamation requirements to reflect actual site conditions and allow for remaining
topsoil to be applied and revegetation contemporaneously/concurrently with park development, as
described in the Amended Reclamation Plan.
The Hearings Officer interprets the COLW reclamation plan argument to require all (100%)
reclamation duties to be completed prior to the approval of a Comprehensive Plan Amendment
and/or zone change for the Subject Property and/or the development of the Subject Property.
Applicant argues that reclamation duties may be completed at a later time such as after approval
of the application in this case and during Applicant's development process. The Hearings Officer
reviewed the Amended Reclamation Plan and the Findings and Decision for case 247-23-000709-
MC. The County, in the Findings and Decision for 247-23-000709-MC, added a condition stating that
"Developer shall complete site reclamation in accordance with the 2023 Amended Reclamation Plan
approved by the County. The Hearings Officer finds the Amended Reclamation Plan establishes
reclamation obligations related to the Subject Property. The Amended Reclamation Plan includes
the following statement:
'Approximately 26,000 yd3 of silty -sand topsoil from 5 on -site stockpiles will be distributed throughout
the site, as needed, to support the-revegetation contemporaneously with future site development."
(Section 9, page 4 of 10)
The Hearings Officer finds the Amended Reclamation Plan clearly anticipates reclamation activities
to occur during Applicant's development process; a time following approval of the application in this
case. The Hearings Officer finds no clear language in the Amended Reclamation Plan that would
support COLW's argument that all (100%) reclamation activities be completed prior to approval of
an application for a Comprehensive Plan and/or zone change approval. The Hearings Officer finds
COLW's argument that one or more sections of SP-92-98 remains relevant to this case and provides
a basis for denial is not persuasive.
5
3. Park Use Allowed in EFU Zone
COLW argued that Applicant's current proposal
to amend the comprehensive plan from Agricultural designation to Rural Residential Exception Area
(RREA) is unnecessary because the sought use of a public park is conditionally allowed in agricultural
zones.
The Hearings Officer finds this COLW argument is legally unsupportable. The Hearings Officer does
not disagree with COLW that park use is permitted as a conditional use in the EFU zone. However,
the Hearings Officer finds COLW failed to cite any relevant section of the DCC or any state
law/regulation that precludes the Applicant from filing this application. The Hearings Officer finds
Applicant, in this case, exercised its legal discretion to select an application avenue that it believes
best meets its development goals. The Hearings Officer finds it common that a specific land use
may be allowed in multiple zoning designations; here parks are allowed, for example, in EFU, MUA,
RREA, F-1 and other zones.
An Applicant has the right to determine what land use application to file and the Hearings Officer is
allowed only to consider the relevant approval criteria for that application. Thereafter, the Hearings
Officer must, based upon the evidence and argument in the record, determine if the application
meets relevant approval criteria. In this case COLW did not provide the Hearings Officer substantial
evidence or persuasive argument that its "unnecessary' argument (as quoted above) is based upon
a relevant approval criterion.
4. Public Interest (DCC 18.136.020)
COLW argued, that
Pursuant to DCC 18.136.020, the application for a quasi-judicial rezoning must establish that the
public interest is best served by rezoning the property.
DCC 18.136.020 C. states:
That changing the zoning will presently serve the public health, safety and welfare considering the
following factors:
1. The availability and efficiency of providing necessary public services and facilities.
2. The impacts on surrounding land use will be consistent with the specific goals and policies
contained within the Comprehensive Plan.
The Hearings Officer takes exception to COLW's inclusion of the word "best" in its above -quoted
statement. DCC 18,136.020 does not include the word "best." The Hearings Officer finds that an
applicant's burden is to demonstrate that a proposed zone change will serve the public health,
safety and welfare considering the factors in subsections 1. and 2.
M
The Hearings Officer takes notice of the following facts: First, the Applicant is the parks district for
Bend and has publicly announced that the Subject Property will be used for park purposes and
second, the Amended Reclamation Plan and Modification and Decision for 247-23-000709-MC are
founded upon and approved for the eventual use of the Subject Property's use as a park. The
Hearings Officer finds the use proposed through this application is the development of a public
park.
The Hearings Officer finds Applicant's proposed park use serves the public health, safety and
welfare of the nearby and surrounding land uses. The Hearings Officer finds no evidence in the
record that public services will not be available when the Subject Property is developed even if for
residential purposes. The Hearings Officer finds, based upon evidence in the record, that impacts
on surrounding land uses will be consistent with the specific goals and policies contained in the
Comprehensive Plan.
B. General Findings
Title 18 of the Deschutes County Code, County Zoning
Chapter 18 52 Surface Mining Zone Section 18.52.200 Termination Of The Surface Mining
Zoning And Surrounding Surface Mining Impact Area Combining Zone
A. When a surface mining site has been fully or partially mined, and the operator
demonstrates that a significant resource no longer exists on the site, and that the site
has been reclaimed in accordance with the reclamation plan approved by DOGAMI or
the reclamation provisions of DCC 18, the property shall be rezoned to the subsequent
use zone identified in the surface mining element of the Comprehensive Plan.
FINDING: The Hearings Officer incorporates Preliminary Findings for Reclamation (Section II, A. 1.
Reclamation of the SM Zoned Land) as additional findings for this section.
Applicant's Burden of Proof states:
This standard requires that Site No. 392 be 1) fully or partially mined, 2) no longer contain a significant
resource, and 3) reclaimed in accordance with the reclamation plan approved by DOGAMI. The first
two prongs are addressed in the responses to OAR 660-023-0180, which sets out the standards for
determining whether an aggregate resource is significant. In the 2010 Decision, the County found the
applicant met the first two prongs of this test based on Page 9 of 50 247-24-000404-PA, 405-ZC the
evidence in the public record from the pit operator that the mine was closed in 2005 because all the
usable material had been removed and that there is not a significant resource of fill material remaining
on site. See Decision of the Deschutes County Hearings Officer, PA10-5, ZC-10-3, pg. 11. Furthermore,
the Wallace Group Surface Mine Reclamation Evaluation, dated September 15, 2023 (Exhibit 8), which
was submitted in support of the recent County Decision approving a modified Reclamation Plan for the
subject property, 247-23-00079-MC, attached hereto as Exhibit 4 substantiates the evidence that the
majority of the fill material has been removed and the site no longer contains a significant resource.
The ESEE for site 392 is attached as Exhibit 9. The site was listed as significant for the presence of fill
VA
material (sand and gravel) and not for aggregate. Mining at the site ceased in 2005 and it has remained
in a partial state of reclamation since that time. All DOGAMI files for Site 392 have been closed since
2011. (Exhibit 10).
a
The mining element of the Comprehensive Plan does not identify a subsequent use for Site No. 392 and
subsequent uses are not identified in the ESEE analysis for Site No. 392 adopted by the County. The
Hearings Officer in the 2010 Decision questioned the requirement that the original topsoil be retained
and replaced as being an indication the subsequent use may be for agriculture. However the Wallace
Group Report demonstrates the amount of fill and topsoil originally thought to be present was not
accurate and was relied upon as the evidentiary basis to modify the reclamation requirement based
on existing and accurate site conditions. The evidence submitted herein and in the Modification
Decision establishes the soils for the entire site are predominantly Class 7 and 8 and were improperly
classified under NCRS mapping in 1992 at the time the Site Plan decision and reclamation requirements
were originally imposed. Because the property does not meet the definition of Agricultural land, the
Applicant proposes rezoning the property to RR-10 to allow its use in conjunction with the adjoining
property to be master planned as a public park.
Staff (Staff Report, page 10 of 50) concurred with the Applicant's analysis and concluded that the
proposal complied with the above criterion.
The Hearings Officer, consistent with the incorporated Preliminary Findings (II.A.2 Reclamation of
SM Zoned Land) finds that there is substantial evidence in the record to demonstrate that mining
no longer occurs at the Subject Property. The Hearings Officer finds the Amended Reclamation Plan
and the Findings and Decision for 247-23-000709-MC are the controlling documents related to
reclamation at the Subject Property. The Hearings Officer finds DOGAMI reclamation requirements
are met/satisfied. The Hearings Officer finds that the reclamation requirements of DCC 18 will be
met consistent with the Amended Reclamation Plan and Findings and Decision for 247-23-000709-
MC.
The Hearings Officer finds the application in this case meets the requirements of this criterion.
B. Concurrent with such rezoning, any surface mining impact area combining zone which
surrounds the rezoned surface mining site shall be removed. Rezoning shall be subject to
DCC 18.136 and all other applicable sections of DCC 18, the Comprehensive Plan and DCC Title
22, the Uniform Development Procedures Ordinance.
FINDING: The Burden of Proof states:
The applicant proposes to remove the SMIA overlay zone associated with Site No. 392 concurrent with
the rezone because protection for Goal 5 resources will no longer be necessary.
Staff (Staff Report, page 10 of 50) concurred with the Applicant's analysis. The Hearings Officer
concurs with Applicant and Staff comments. The Hearings Officer finds that the applicable
standards for rezoning are addressed herein.
E'?
Chapter 18.136, Amendments
Section 18.136.010 Amendments
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or legislative
map changes shall be as set forth in DCC 22.12. A request by a property owner for a quasi-
judicial map amendment shall be accomplished by filing an application on forms provided by
the Planning Department and shall be subject to applicable procedures of DCC Title 22.
FINDING: The Applicant, also the property owner, has requested a quasi-judicial plan amendment
and filed the applications for a plan amendment and zone change. The application will be reviewed
utilizing the applicable procedures contained in Title 22 of the Deschutes County Code.
Section 18 136 020 Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the public interest is best
served by rezoning the property. Factors to be demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and the change is consistent with
the plan's introductory statement and goals.
FINDING: The Burden of Proof states:
Per prior Hearings Officers decisions for plan amendments and zone changes on resource zoned
property, this paragraph establishes two requirements: (1) that the zone change conforms to the
Comprehensive Plan; and (2) that the change is consistent with the plan's introductory statement and
goals. Both requirements are addressed below:
1. Conformance with the Comprehensive Plan: The applicant proposes a plan amendment to
change the Comprehensive Plan designation of the subject property from Surface Mine and
Agriculture to Rural Residential Exception Area. The proposed rezoning from SM and EFU-TRB to RR-
10 will need to be consistent with its proposed new plan designation.
2. Consistency with the Plan's Introductory Statement and Goals. In previous decisions, the
Hearings Officer found the introductory statement and goals are not approval criteria for the
proposed plan amendment and zone change. (footnote states: Powell/Ramsey decision (PA-14-2 /ZC-
14-2) and Landholdings decision (247-16-000317-ZC / 318-PA).] However, the Hearings Officer in the
Landholdings decision found that depending on the language, some plan provisions may apply and
found the following amended comprehensive plan goals and policies require consideration and that
other provisions of the plan do not apply as stated below in the Landholdings decision:
,,Comprehensive plan statements, goals and policies typically are not intended to, and do not,
constitute mandatory approval criteria for quasi-judicial/and use permit applications. Save Our
Skyline v. City of Bend, 48 Or LUBA 192 (2004). There, LUBA held:
1r7
'As intervenor correctly points out, local and statutory requirements that land use
decisions be consistent with the comprehensive plan do not mean that all parts of the
comprehensive plan necessarily are approval standards. [Citations omitted.] Local
governments and this Board have frequently considered the text and context of cited parts
of the comprehensive plan and concluded that the alleged comprehensive plan standard
was not an applicable approval standard. [Citations omitted.] Even if the comprehensive
plan includes provisions that can operate as approval standards, those standards are not
necessarily relevant to all quasi-judicial land use permit applications. [Citation omitted.]
Moreover, even if a plan provision is a relevant standard that must be considered, the plan
provision might not constitute a separate mandatory approval criterion, in the sense that
it must be separately satisfied, along with any other mandatory approval criteria, before
the application can be approved. Instead, that plan provision, even if it constitutes a
relevant standard, may represent a required consideration that must be balanced with
other relevant considerations. [Citations omitted.]'
LUBA went on to hold in Save Our Skyline that it is appropriate to 'consider first whether the
comprehensive plan itself expressly assigns particular role to some or all of the plan's goals and
policies.' Section 23.08,020 of the county's comprehensive plan provides as follows:
The purpose of the Comprehensive Plan for Deschutes county is not to provide a site -specific
identification of the appropriate land uses which may take place on a particular piece of land but
rather it is to consider the significant factors which affect or are affects by development in the
county and provide a general guide to the various decision which must be made to promote the
greatest efficiency and equity possible, which managing the continuing growth and change of the
area. Part of that process is identification of an appropriate land use plan, which is then
interpreted to make decision about specific sites (most often in zoning and subdivision
administration) but the plan must also consider the sociological, economic and environmental
consequences of various actions and provide guidelines and policies for activities which may have
effects beyond physical changes of the land (Emphases added.)
The Hearings Officer previously found that the above -underscored language strongly suggests the
county's plan statements, goals and policies are not intended to establish approval standards for
quasi-judicial/and use permit applications. In Bothman v. City of Eugene, 51 Or LUBA 426 (2006),
LUBA found it appropriate also to review the language of specific plan policies to determine
whether and to what extent they may in fact establish decisional standards. The policies at issue
in that case included those ranging from aspirational statements to planning directives to the city
to policies with language providing' guidance for decision making' with respect to specific rezoning
proposals. In Bothman LUBA concluded the planning commission erred in not considering in a
zone change proceeding a plan policy requiring the city to '(r]ecognize the existing general office
and commercial uses located * * * din the geographic area including the subject property] and
discourage future rezonings of these properties.' LUBA held that:
'* * * even where a plan provision might not constitute an independently applicable mandatory
approval criterion, it may nonetheless represent a relevant and necessary consideration that must
be reviewed and balanced with other relevant considerations, pursuant to ordinance provisions
10
that require * * * consistency with applicable plan provision.' (Emphasis added.)
The county's comprehensive plan includes a large number of goals and policies. The applicant's
burden of proof addresses goals for rural development, economy, transportation, public facilities,
recreation, energy, natural hazards, destination resorts, open spaces, fish and wildlife, and forest
lands. The Hearings Officer finds these goals are aspirational in nature and therefore are not
intended to create decision standards for the proposed zone change."
Hearings Officer Karen Green adhered to these findings in the Powell/Ramsey decision (file nos.
PA- 14-2/ZC-14-2), and found the above -referenced introductory statements and goals are not
approval criteria for the proposed plan amendment and zone change. This Hearings Officer also
adheres to the above findings herein. Nevertheless, depending upon their language, some plan
provisions may require "consideration" even if they are not applicable approval criteria. Save Our
Skyline v. City of Bend, 48 Or LUBA 19Z 209 (2004). I find that the following amended
comprehensive plan goals and policies require such consideration, and that other provisions of
the plan do not apply:"
The comprehensive plan goals and polices that the Landholdings Hearings Officer found to apply
include the following ...
The present application is nevertheless consistent with the introductory statement because the
requested change, as demonstrated herein, is consistent with State law and County plan provisions
and zoning code provisions implementing the Statewide Planning Goals.
The Hearings Officer finds that the Applicant utilized the above -quoted analysis, as well as analyses
provided in prior Hearings Officers' decisions, to determine and respond to only the Comprehensive
Plan Goals and policies that apply. Staff (Staff Report, page 13 of 50) concurred with the Applicant's
analysis and the Hearings Officer concurs with Applicant and Staff that the above provision shall be
met based on Comprehensive Plan conformance as demonstrated in subsequent findings.
B. That the change in classification for the subject property is consistent with the
purpose and intent of the proposed zone classification.
FINDING: The Burden of Proof states:
The applicant is proposing to change the zone classification from SM and EFU to RR-10. Approval
of the application is consistent with the purpose of the RR-10 zoning district, which is stated in DCC
18.60.010 as follows:
18.60.010 Purposes
The purposes of the Rural Residential Zone are to provide rural residential living
environments, to provide standards for rural land use and development consistent with
desired rural character and the capability of the land and natural resources, to manage
the extension of public services, to provide for public review of nonresidential uses, and to
III
balance the public's interest in the management of community growth with the protection
of individual property rights through review procedures and standards.
The subject property is not suited to full-time commercial farming as discussed in the findings
above. The RR-10 zone will allow property owners to engage in recreational uses, hobby
farming, and redevelop the property in conjunction with the adjacent lands under a park
Master Plan. The low -density of development allowed by the RR-10 zone will conserve open
spaces and protect natural and scenic resources. In the Landholdings case, the Hearings
Officer found:
I find that the proposed change in zoning classification from EFU is consistent with the
purpose and intent of the MUA-10 zone. Specifically, the MUA-10 zone is intended to
preserve the rural character of various areas of the County while permitting development
consistent with that character and with the capacity of the natural resources of the area.
Approval of the proposed rezone to MUA-10 would permit applications for low -density
development, which will comprise a transition zone between EFU rural zoning, primarily to
the east and City zoning to the west.
Staff (Staff Report, page 14 of 50) requested the Hearings Officer make specific findings for this
criterion. The Hearings Officer incorporates the findings for Goal 14 as additional findings for this
policy. The Hearings Officer finds Applicant's above -quoted statement is consistent with the intent
of this policy. Based upon the incorporated findings and the Applicant's statements contained in the
Burden of Proof the Hearings Officer finds this policy is met.
C. That changing the zoning will presently serve the public health, safety and welfare
considering the following factors:
1. The availability and efficiency of providing necessary public services and
facilities.
FINDING: The Burden of Proof states:
Necessary public facilities and services are available to serve the subject property. Transportation
access to the property is available from Rickard Road to the north, Arnold Market Road to the east,
Back Alley to the south and Bobcat Road to the west.
The Transportation Study prepared by Joe Bessman of Transight Consulting (Exhibit 12) submitted
herewith establishes that considering the most intense residential scenario (clustered or planned units
on 5-acre equivalent lots) the site would generate about 175 additional weekday daily trips, including
about 29 more trips during the weekday p.m. peak hour. Comparatively, if the site were developed as
a public park, the daily trips would be reduced, but a small increase in weekday p.m. peak hour trips
could be generated. Again, with the current approval for a Surface Mining operation the type of trips
would change, and passenger cars would have much less impact on the system than aggregate trucks.
The study includes operational analysis of the SE27th Street/SE Rickard Road intersection. Table 5 of
the report, as set forth below, shows that within each of the scenarios the SE 27th Street / SE Rickard
12
Road intersection performs acceptably per the adopted City of Bend Standards.
Tnhip s_ Intersection Onerational Results Summarv, Weekdav PM Peak Hour
95th % "
jurisdiction/
V/c
Delay
Queue
Scenario
Standard
LOS
Ratio
(s)
(ft)
Acceptable?
Existing
WB:
Zoning
WB.
WB.
WB.
LOS
(Figure 5
0.67
35.5 s
125 ft
E
Volumes)
WB:
#1: Outright
WB:
WB.
WB.
WB.
Uses
City of Bend
0.66
35.8 s
125 ft
Peak Hour v/c
Ratio <1.0
E
#2:
WB;
WB:
WB:
WB:
Conditional
LOS
0.71
40.3 s
125 ft
Uses
E
WB:
WB:
WB:
WB:
/
#3: Park Use
LOS
0.67
36.5 s
125 ft
E
The property receives police services from the Deschutes County Sheriff. It is in Rural Fire Protection
District #2. Neighboring properties contain residential uses, which have water service from a
municipal source or wells, on -site sewage disposal systems, electrical service, telephone services, etc.
There are no known deficiencies in public services or facilities that would negatively impact public
health, safety, or welfare.
Applicant provided evidence related to traffic impacts. County transportation staff reviewed
Applicant's traffic analysis and concurred with the Applicant's assumptions, methodology and
conclusions. The Hearings Officer finds no evidence in the record to dispute the Applicant's traffic
analysis and concludes that the proposed zoning will serve the public health, safety and welfare
considering traffic impacts. Applicant noted that the Subject Property is served by the Deschutes
County Sheriff, and is in Rural Fire Protection District #2. Applicant also noted that the Subject and
immediately surrounding area are served by either a municipal water source or by wells and that
electrical and telephone services are available. Applicant stated that the Subject Property, including
many nearby properties are served by on -site sewage disposal services.
The Hearings Officer finds evidence in the record that public services to serve the Subject Property,
in the event this application is approved, are available. The Hearings Officer finds no evidence is in
the record suggesting public services will not be available to the Subject Property if rezoned as
requested by Applicant.
13
2. The impacts on surrounding land use will be consistent with the specific goals
and policies contained within the Comprehensive Plan.
FINDING: The Burden of Proof states (pages 22 & 23):
The RR-10 zoning is consistent with the specific goals and policies in the comprehensive plan discussed
above. The RR-10 zoning allows rural uses consistent with the uses of many other properties in the
area of the subject property. In addition, the RR-10 zoning provides a proper transition zone from the
City, to rural zoning, to EFU zoning.
The zone change will not impose new impacts on the EFU-zoned land adjacent to or nearby the subject
property because many of those properties are residential properties, hobby farms, already developed
with dwellings, not engaged in commercial farm use, are idle, or are otherwise not suited for farm use
due to soil conditions, topography, or ability to make a profit farming. The historic use of the property
for surface mining created greater impacts to surrounding properties than the proposed RR-10 zoning
would allow.
As discussed below, the subject property is not agricultural land, is comprised of predominantly Class
7 and 8 soils, and as described by the soil scientist, Mr. Gallagher, the nonproductive soils on the
subject property make it not suitable for commercial farming or livestock grazing. The subject
property is not land that historically has been or could be used in conjunction with the adjacent
irrigated property for any viable agricultural use and any future development of the subject property
would be subject to building setbacks.
Staff requested that the Hearings Officer make specific findings for this criterion. The Hearings
Officer reviewed the Applicant's submittals (Burden of Proof, Supplemental Burden of Proof, Open -
record evidence submission and Final Argument). The Hearings Officer finds that Applicant did
identify and provide extensive evidence related to comprehensive plan policies related to
Applicant's assertion that the Subject Property was not agricultural land. The Hearings Officer finds
Applicant's evidence related to other "relevant" Comprehensive Plan goals/policies was less
comprehensive. However, the Hearings Officer finds that Applicant met the minimum standard in
providing evidence that its proposal will create minimal impacts. The Hearings Officer finds
Applicant's proposal, in this case, sufficiently addresses this policy.
D. That there has been a change in circumstances since the property was last zoned,
or a mistake was made in the zoning of the property in question.
FINDING: COLW (11/12/2024, page 5) argued that this criterion was not satisfied. COLW stated the
following:
DCC18.136.020(D) requires the applicant to show that there has been a mistake in the initial zoning
or a change in circumstances since the property was last zoned to justify such a rezone. Here, there is
no initial mistake or change in circumstances that would justify a rezoning to RR-10.
1. Mistake: As the 2010 Hearings Officer Decision has already determined, zoning the relevant 91 acres
for surface mining was not a mistake, nor was a mistake made in zoning the remainder of the property
EFU under PL-15 in 1979. 'As an initial matter, Staff concluded that there was not a mistake made in
either the decision to zone the 91 acres for surface mining, nor a mistake in zoning the remainder of
the property exclusive farm use under PL-15 in 1979. Staff also speculated that the land holding was
large, and the 450 or so acres would likely not have qualified for a rural residential exception area in
1979 because there was little development in the area and there was no evidence that the property
was committed to any development proposal. The Hearings Officer agrees." Exhibit 1, 2010 Hearings
Officer Decision p. 20.
Applicant, in its Burden of Proof states (pages 23 & 24):
In 1979, Deschutes County adopted its first comprehensive plan and zoning ordinance that
implemented the Statewide Land Use Planning Goals. The County's comprehensive plan map was
prepared prior to the USDA/NRCS's publication of the "Soil Survey of Upper Deschutes River Area,
Oregon." This study replaced a prior study that provided very general information about soils. This
Soil Survey of the Upper Deschutes River Area is more comprehensive than the prior soils mapping
publication but it continues to provide only general soils information rather than not an assessment
of soils on each parcel in the study area.
When the County first implemented the Statewide Goals, it applied resource zoning using a broad
brush. All undeveloped rural lands were assumed to be resource land. Then -existing developed rural
lands not suited for resource use were granted exceptions to the Goals that protect resource lands.
The County allowed landowners a brief period of time after adoption of PL-15 (1979) to petition the
County to remove nonresource properties from resource zone protections but made no effort to
determine whether lands might be nonresource lands that do not merit the imposition of stringent
land use regulations that protect rural resources - typical farm and forest resources.
The EFU zoning designation was likely based on the best soils data that was available to the County at
the time it was originally zoned, during the late 1970's, when the comprehensive plan and map were
first adopted and when agricultural zoning was applied to land with no history of farming. (footnotes
3 and 4 state the following.
3Mr. Gallagher's soils analysis report for the subject property determined that the subject property
was previously mapped by the USDA-SCS Soil Survey of the Deschutes County Area and compiled
by MRCS into the Web Soil Survey. The property was previously mapped at 1:20, 000 scale, which is
generally too small a scale for detailed land use planning and decision making, according to Mr.
Gallagher.
'Source: Agricultural Lands Program, Community Involvement Results, Community Development,
Deschutes County. June 18, 2014]
The Hearings Officer incorporates as additional findings for this criterion, the findings (set forth later
in this recommendation) for Chapter 2, Resource Management, Section 2.2, Goal 1, Preserve and
Maintain Agricultural Lands and Industry and the findings for Oregon Administrative Rules Division 33-
Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands. The Hearings Officer rejects
COLW's assertion that the 2010 Hearings Officer decision referenced in the quoted material above
15
is determinative in this case.
The Hearings Officer finds the evidence provided in the record of this case is persuasive that the
initial EFU zoning was based upon generalized soils mapping data and that the evidence (Applicant's
soil study/analysis) in this case more accurately and precisely identified soil characteristics at the
Subject Property. The Hearings Officer finds that the initial designation of EFU for the Subject
Property was a mistake.
In the alternative, the Hearings Officer considers whetherthere has been a change in circumstances
since the property was last zoned. COLW argued that this criterion was not met because there was
not change in circumstances. COLW (11/12/24, page 5) stated the following:
No change in circumstances, especially regarding the EFU-zoned portion of the property, can justify a
rezone of the property.
The applicant has alleged that the soils have changed. Application Materials, p. 40. This is not true.
The soils are the some agricultural soils thatwere properly mapped and zoned previously. Both the
DOGAMI reclamation permit and the 2023 Amended Reclamation Plan required that the top soil
initially stripped from the property be the same top soil that is restored to the property. In areas zoned
EFU and not impacted by surface mining activity, the soil is the some.
The applicant also alleges that the viability of commercial farming has significantly changed based on
water availability. This is unconvincing for several reasons. First, the subject property derives its water
rights from Arnold Irrigation District (Arnold). Arnold holds water rights that are relatively senior within
the basin and at minimal risk of being undeliverable. Second, many farm uses, including livestock
grazing, do not necessarily require irrigation.
Applicant, in its Burden of Proof (pages 24 & 25) stated the following:
There has clearly been a change in circumstances since the property was last zoned in the 1970s:
Soils: New soils data provided in Mr. Gallagher's soils report shows the property does not have
agricultural soils.
Surface Mining Complete: The Wallace Group Report (Exhibit 8) and Amended Reclamation Plan
(Exhibit 11) approved by the County in 2023 established mining on the property is complete and
the remaining reclamation activities can be completed in conjunction with the site development
and master plan for a public park.
Farming Economics and Viability of Farm Uses: The economics of farming and the viability of
commercial farm uses in Deschutes County have significantly changed. Making a profit in farming
has become increasingly difficult, particularly on parcels that are relatively small for livestock
grazing and that have inadequate soils or irrigation for raising crops such as the subject property.
The reality of the difficulties agricultural producers face in Deschutes County is demonstrated
below in the stakeholder interview of the Deschutes County Farm Bureau in the County's 2014
16
&ricultural Lands Program; fornmunity Involvement Results:
Today's economics make it extremely difficult for commercial farmers in Deschutes County to be
profitable. Farmers have a difficult time being competitive because other regions (Columbia Basin,
Willamette Valley) produce crops at higher yields, have greater access to transportation and
Decline in Farm Operations: The number of farm operations have steadily declined in Deschutes
County between 2012 and 2017, with only a small fraction of farm operators achieving a net profit
from farming in 2017. Since the property was zoned, it has become evident that farm uses are
not viable on the subject property. The economics of farming have worsened over the decades
making it difficult for most Deschutes County property owners to make money farming good
ground and impossible to earn a profit from attempting to farm Class 7 and 8 farm soils. In 2017,
according to Table 4 of the 2017 US Census of Agriculture, Exhibit 13, only 16.039,66 of farm
operators achieved a net profit from farming (238 of 1484 farm operations). In 2012, the
percentage was 16.45% (211 of 1283 farm operations). In 2007, according to the 2012 US Census
of Agriculture, that figure was 17916 (239 of 1405 farm operations). Exhibit 14. The vast majority
of farms in Deschutes County have soils that are superior to those found on the subject property.
As farming on those superior soils is typically not profitable, it is reasonable to conclude that no
reasonable farmer would purchase the subject property for the purpose of attempting to earn a
profit in money from agricultural use of the land.
Population Changes Encroaching development: The population of Deschutes County has,
according to the US Census, increased by 336% between 1980 when the County's last zoned this
property and 2021 from 62,142 persons to 209,266 persons. The supply of rural residential
dwelling lots has been diminishing in the same time period. Encroaching development east of
Bend's Urban Growth Boundary has brought both traffic and higher density residential uses and
congestion to the area, and within a mile of the subject property.
The above analysis regarding the completion of surface mining, the farming economics, viability of
farm uses, decline in farm operations, and changing population data and encroaching development
demonstrates that a change in circumstances has occurred since the property was lost zoned. In
addition, Mr. Gallagher's soil assessment confirms that the subject property does not have agricultural
soils.
COLW's asserted that Applicant claimed that the "soils have changed." COLW referenced stockpiled
soil that will be used to re-cover a portion of the mining section of the Subject Property as basis for
Applicant's alleged claim that the "soils have changed." This COLW claim is not supported by
evidence in the record.
The Hearings Officer reviewed Applicant's soil analysis carefully and concluded that Applicant's soil
professional located test/bore pits throughout the Subject Property. The Hearings Officer finds the
test/bore pits locations fairly and accurately provided representative results which can be relied
upon in in meeting the legal requirements of relevant state law/regulations.
The Hearings Officer finds the "changed circumstances" factors discussed in the Applicant's above-
17
quoted statements best address the changed circumstances portion of this approval criterion. The
Hearings Officer concurs with Applicant that there have been changes in circumstances since the
Subject Property was last zoned.
The Hearings Officer finds this criterion is met.
Deschutes County Comprehensive Plan
Chapter 1, Comprehensive Planning
Section 1 3 Land Use Planning
Goal 1, Maintain an open and public land use process in which decisions are based on the
objective evaluation of facts.
FINDING: The Applicant's proposal in this case is being evaluated based on an objective review of
compliance with Statewide Planning Goals, Deschutes County Comprehensive Plan policies, and
Oregon Administrative Rules. A public hearing was held before a Hearings Officer on November 12,
2024, and members of the public were given an opportunity to attend and testify at that hearing.
Pursuant to DCC 22.28.030, the Board of County Commissioners will take final action on the
application and may choose to either adopt the Hearings Officer findings or conduct their own
hearing. This Comprehensive Plan Amendment and Zone Change application will be evaluated
through an open process that allows for public input and follows Deschutes County's Procedures
Ordinance. The Hearings Officer finds that within each of the steps described above, there is an
open and public process that is based on an objective evaluation of facts. The Hearings Officer finds
that this criterion will be met.
Chapter 2, Resource Management
Section 2.2 Agricultural Lands
Goal 1, Preserve and maintain agricultural lands and the agricultural industry.
FINDING: Applicant provided the following comments specifically related to Goal 1:
The applicant is pursuing a plan amendment and zone change on the basis that the subject property
does not constitute "agricultural lands'; and therefore, it is not necessary to preserve or maintain the
subject lands as such and this goal does not apply. In the Landholdings decision (and the
Powell/Ramsey decision) the Hearings Officer found that Goal 1 is an aspirational goal and not an
approval criterion.
The Hearings Officer finds that COLW did not clearly address the import of Goal 1 (approval criterion
or aspirational). Further, the Hearings Officer finds, consistent with prior
decisions/recommendations, that Goal 1 is aspirational. However, despite Goal 1 being considered
aspirational and not a relevant approval criterion, the Hearings Officer (in the alternative) provides
the following findings.
Issues related to this Goal 1 were extensively covered by the Applicant and COLW. The issues raised
by Goal 1 are interwoven with other relevant Goals and State laws/regulations and policies and DCC
approval criteria. The Hearings Officer intends to address comprehensively many of the issues
related to the determination of whether the Subject Property is "Agricultural Land" in this section
and will incorporate and supplement these findings in later relevant Goals and approval criteria.
Applicant asserts that the Subject Property is not "Agricultural Land" and COLW that the Subject
Property is, based upon the factual evidence and relevant law, "Agricultural Land." The Hearings
Officer provides the following "Soils" and "Agricultural Land" findings.
Soils.
COLW provided extensive comments related to "soils" (11 /12/2024, pages 6-9). Those comments
follow:
ORS 215.211(1) allows a person to provide more detailed soil information to the county to the extent
that it would "assist a county to make a better determination of whether land qualifies as agricultural
land. "Here, the applicant's soil survey should not be relied upon by the county because it is deficient
for several reasons.
First, the applicant's soil study varies so substantially from the existing NRCS data as to be
unbelievable. The applicant's soils report ("Gallagher Report') asserts that the subject property is
predominantly class Vll and V111 soils, finding that "the combined percentage of Class 7 and 8 non -
high value farmland soils is 66 percent (183 acres). "Application Materials, Page 91. This is a surprising
departure from the NRCS soils information on file. Existing NRCS data shows that there are no class
VII and Vlll soils on the property. Instead, the entire property consists of exclusively class VI or below
soils, including substantial acreage which would be class 111 soil if irrigated. Application Materials, p.
94. Put another way, according to NRCS data, for from containing 66% nonagricultural soils, the
subject property consists entirely of the best agricultural soils available for farm use in the region.
DLCD has previously noted in 2010 that it is "surprising] that the NRCS data would be off to such an
extent." Exhibit 1, p. 6. LandWatch agrees. Such a discrepancy seems hard to reconcile, especially
considering that another independent soil scientist found that "Whe NRCS soil survey on this study
area was reviewed on -site and determined to be accurate at the time of mapping."(emphasis added)
Exhibit 4, p. 5. The Borine Soil Study at Exhibit 4 was provided to the County during the 2010 failed
attempt to rezone the subject property to rural residential.
The second reason that the Gallagher Report is unreliable is the creation of a new "Mined Land and
Filled"(MF) soil mapping unit within the subject property. Application Materials, p. 94. The MFinapping
unit is the "reclaimed" area where mining excavation took place. The Gallagher Report revised the 68
acres (24916) within the MF mapping unit to a land capability class of Vll and declared it non -suitable
for farm use. Application Materials, p. 91. As a reminder, the 2023 Amended Reclamation Plan was
approved based on findings that the surface mined area was presently covered with 6-12 inches of
101
27A Clovekamp sandy loam soil. Application Materials, p. 270. As a result, the revision of the MF
mapping unit to Class Vll soil is hard to reconcile with the Amended Reclamation Plan because it
suggests that the agricultural -quality topsoil was either never restored, or the Gallagher Report is
misleading.
The creation of a revised nonagricultural soil mapping unit in the reclaimed mining area by a private
soil study was similarly problematic during the 2010 failed attempt to rezone the property. LandWatch
notes that in the Hearings Officers' 2010 Decision denying the previous rezone attempt, the County
HO stated that they could not "recommend that the 91 acre former surface mine be counted in the
ratio of agricultural land to nonagricultural land to determine predominance under OAR 660- 003-
0020(1)(a)(A)."Exhibit 1, p. 21-22. The 2010 County HO reasoned that based on evidence in the record,
either (1) conditions of reclamation requiring the restoration of 27A Clovecamp Loamy sand to the
former surface mine area had not been adhered to, or (2) the conditions were adhered to and the
former surface mine area is properly covered with a layer of Class VI nonirrigated/Class 111 irrigated
High -Value agricultural soil. Exhibit 1, p. 22. In either case, the circumstances would not allow the
subject property to be rezoned consistent with Goal 3 and OAR 660- 033- 0020(1)(a)(A). Exhibit 1, p.
22. Moreover, the HO observed that based on the 1992 ESEE analysis for SP-92-98, there is a "strong
inference that the surface mine could be reclaimed and used consistent with its former agricultural
land status after mining was completed." Exhibit 1, p. 23. The 2010 decision concluded, "For this
reason alone, the Hearings Officer cannot recommend approval of this application." Exhibit 1, p. 23.
The reasoning behind the 2010 HO denial remains persuasive. Based on the Gallagher Report, it is
apparent that the MF mapping unit has not been properly reclaimed to its prior agricultural capability
and therefore, should not be counted into the ratio of agricultural to nonagricultural land for the
purposes of analysis under OAR 660-003-0020(1)(a)(A). The Gallagher Report describes various
individual sample sites within MF mapping unit as "v. compacted," "extremely compacted," and "2-3
layers in compacted fill" Application Materials, p. 120. Other sample sites in the MF mapping unit
contain "asphalt chunks," "chunks concrete," and "pea gravel': Application Materials, p. 109, p. 120,
p. 123. Site 168 on the property is described as having been "eroded to bedrock on surface', and that
it has been either "eroded or dug channel, all rocks." Application Materials, p. 128. Site 3 within the
MF mapping unit does not contain any sort of sampling at all, and instead simply notes that there is
a "Steep sided sand pile" and "stockpiled top soil" Application Materials, p. 109. Site 11 is described
as a "Rock Pile" with notes providing that there was "only rock on surface" Application Materials, p.
110. Overall, of the 38 sample sites occurring in the MF mapping unit, 32 resulted in "refusal"which is
to say termination of a borehole if the hammer does not advance more than six inches after fifty
blows.(footnote omitted] Figure 1. Other test sites on the subject property, with the appropriate
amount of agricultural soils, resulted in refusal less than 10% of the time. Figure 1. This suggests that
the extent to which "soil" within the "reclaimed" area is compacted is the result of neglect by the
property owner or that 6-12 inches of 27A Clovekamp soil was not restored at all.
eie,irn 1• [:allmahor Rennrt Test Sites resulting in "Refusal"
Total Number
Number resulting in
Percentage of sites
"refusal"
resulting in "refusal"
Sample Sites Revised
38
32
84%
to MF
20
Other Sample Sites 194 15 17%
If the 68 acres (24916) within the MF mapping unit was considered class VI soil or better (consistent with
the NRCS information), when combined with the other 96 acres (3596) of Class 111 irrigated/class VI non -
irrigated soil, the subject property would be predominantly soils suitable for agriculture under OAR
660-033-020(1)(a)(A). LandWatch respectfully requests the Hearings Officer to find that the subject
property is agricultural land based on the fact that it is predominantly (>59916) Class 111 irrigated/Class
V1 non -irrigated soils.
The Hearings Officer accepts COLW's comments as lay observations but not as expert testimony.
The Hearings Officer finds COLW did not provide persuasive authoritative evidence disputing the
Applicant's professional soil expert's evidence or analysis.
Applicant's Burden of Proof states:
As demonstrated in this application, the subject property does not constitute "agricultural land" and
therefore, is not necessary to preserve and maintain the County's agricultural industry. Mr.
Gallagher's soils assessment demonstrates that the subject property consists predominantly (66%) of
Class 7 and 8 non-agricultural soils.
According to Mr. Gallagher, these soils have severe limitations for agricultural use of the subject
property. The soils found on the subject property are low fertility, being ashy sandy foams with a low
cation exchange capacity (CEC) of 7.5 meq/100 gm and organic matter is very low for Gosney 0.75%
and low for Deskamps 1.5%. These soils do not have a large capacity to store soil nutrients especially
cations, and nitrogen fertilizers readily leach in sandy soils. The soil depth is further limiting because
it limits the overall volume of soil available for plant roots and limits the size the overall soil nutrient
pool. Additionally, the soil available water holding capacity is very low for Gosney and Henkle less
than 1.8 inches for the whole soil profile, and for the very shallow soils it is half this much. The
Deskamps soils have only about 2 to 4 inches AWHC for the entire profile. The combination of low
fertility and low AWHC translate into low productivity for crops. NRCS does not provide any
productivity data for non -irrigated crops on these soils. This site does not have water infrastructure
for irrigation so the productivity is lower.
According to Mr. Gallagher the subject property is not suited for livestock grazing on a commercial
scale. The soils here have major management limitations including ashy and sandy surface texture.
The majority of the area has soils that are very shallow to shallow with many rock outcrops and very
stony to extremely stony surface which makes seeding impractical with conventional equipment. The
mined and filled area has low available water holding capacity and from the barren cover on the
surface and very compacted subsoil they also have low potential for forage production.
Wind erosion is a potential hazard and is moderately high when applying range improvement
practices. Because the soil is influenced by pumice ash, reestablishment of the native vegetation is
very slow if the vegetation is removed or deteriorated. Pond development is limited by the soil depth.
The restricted soil depth limits the choice of species for range seeding to drought -tolerant varieties.
Further, range seeding with ground equipment is limited by the rock fragments on the surface. The
21
areas of very shallow soils and rock outcrop limit the areas suitable for grazing and restrict livestock
accessibility.
Based on the revised Order-1 map the annual productivity in a normal year is about 74 tons annual
range production for the entire property. This is lower (50 tons) for an unfavorable year and higher
(98 tons) for a favorable year. The animal use months (AUMs) for this property is about 163 (based
on the revised soil map and a monthly value of 910 pounds forage per 1 AUM equivalent to pounds
per cow calf pair). This model assumes the cow's take to be 25% of annual productivity in order to
maintain site productivity and soil health (MRCS 2009). This limits the grazing to 14 cow calf pairs for
12 months in a normal year and fewer 9 cow calf pairs in unfavorable year and more 18 in a favorable
year. This is not at an economical cattle production scale because the productivity of the land is too
poor and is not conducive to rangeland improvements.
The Hearings Officer finds Applicant's soil study/report represents a soil analysis conducted by a
qualified expert/professional. The Hearings Officer finds that Applicant's soil study/report
professionally and accurately reflects the soil characteristics on the Subject Property. The Hearings
Officer finds overall the Subject Property consists predominantly (66%) of Class 7 and 8 non-
agricultural soils.
Agricultural Lands
COLW disputed Applicant's claim that the Subject Property is "Agricultural Land" as that phrase is
defined in relevant law (Hearing testimony of Robin Hawakawa and record submissions dated
11/12/24 and 12/3/24). Applicant responded to each of COLW's "Agricultural Land" arguments in
a thorough and comprehensive manner in its Final Argument (12/9/24). The Hearings Officer finds
that Applicant's Final Argument comments are persuasive. Rather than attempt to summarize or
characterize (or mischaracterize) Applicant's Final Argument statements the Hearings Officer
includes Applicant's Final Argument statements related to "Agricultural Land") (including discussion
of "farm unit") in full. Those comments follow for multiple pages:
A. Background
COLW conflates any agricultural activity with 'farm use," which is a defined term and the central
component of the determination of whether land is "agricultural land" as used in Goal 3 and the
administrative rules. COLW likewise conflates EFU zoned and irrigated land with "agricultural land,"
again which is a defied term with distinct components the subject property lacks.
The relevant definitions for the analysis are as follows:
"Agricultural land" is land which 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),
22
taking into consideration soil fertility; suitability for grazing, climatic conditions, existing and
future availability of water for farm irrigation purposes, existing land use patterns,
technological and energy inputs required, and accepted farming practices; and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby
agricultural lands.
(b) Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands
in capability classes I-IV/I-VI within a farm unit, shall be inventoried as agricultural lands even
though this land may not be cropped or grazed,`
OAR 660-033-0020(1)(a)." Emphasis added.
"Farm use" is:
'The current employment of land for the primary purpose of obtaining a profit in money by
raising, harvesting and selling crops or the feeding, breeding, management and sale of, or the
produce of, livestock, poultry, fur -bearing animals or honeybees or for dairying and the sale
of dairy products or any other agricultural or horticultural use or animal husbandry or any
combination thereof. "Farm use" includes the preparation, storage and disposal by marketing
or otherwise of the products or by-products raised on such land for human or animal use.
"Farm use"also includes the current employment of land for the primary purpose of obtaining
a profit in money by stabling or training equines including but not limited to providing riding
lessons, training clinics and schooling shows. "Farm use" also includes the propagation,
cultivation, maintenance and harvesting of aquatic, bird and animal species that are under
the jurisdiction of the State Fish and Wildlife Commission, to the extent allowed by the rules
adopted by the commission. "Farm use" includes the on -site construction and maintenance of
equipment and facilities used for the activities described in this subsection. "Farm use" does
not include the use of land subject to the provisions of ORS chapter 321, except land used
exclusively for growing cultured Christmas trees or land described in ORS 321.267 (Lands not
eligible for special assessment) (3) or 321.824 (Lands not eligible for special assessment) (3)."
ORS 215.203(2)(a). Emphasis added.
"Farm unit" is:
"[T]he contiguous and noncontiguous tracts in common ownership used by the farm operator
for farm use as defined in ORS 215.203.
ORS 215.203. Emphasis added.
To qualify as "agricultural land"in Central Oregon, the land must be composed predominantly of Class
1-6 soils or it must be suitable for farm use, which means it must be capable of being farmed for a
profit. As is evident from the local nonresource cases, it is rare to have land in Central Oregon that
does not have predominantly Class 1-6 soils and that can be farmed for a profit. The present case is
23
no exception as demonstrated by the evidence in the record.
B. Nonresource Process —Definition of Agricultural land
OAR 660-033-0030 requires that "all land defined as 'agricultural land' in OAR 660-0330020(1) be
inventoried as agricultural land."As is relevant here, OAR 660-033-0020(1)(a)(A) defines "agricultural
land" to include soils classified predominantly Class I -VI soils in Eastern Oregon. jfootnote omitted] The
Property would meet this definition under the NCRS soil map but this classification is not controlling
when, as here, a more detailed soils analysis is provided. Both Statewide Goal 3 and ORS 215.211
allow the county to utilize information provided by a more detailed soil study to provide a better
determination of whether land is 'Agricultural Land" than provided by the NRCS soils survey. The soil
study provided by the Applicant confirms the property is predominantly Class 7 and 8 soils and is the
only evidence in the record other than the NCRS map, which is based on a scale of 1:20,000 and
provides only a generalized map of soils in the area, not the detailed site -specific analysis provided by
the Applicant.
COLW argues the soil study submitted by the Applicant's certified soils examiner and certified by DLCD
is somehow deficient because it varies significantly from the NCRS data and because it determined the
soils in the mined area were poor and not Class 1-6, as was presumed when the original site plan for
the mine was approved in 1998. None of COLW's arguments or speculation about the soil study are
sufficient to undermine the study or the qualifications of the soils examiner. It is neither surprising nor
uncommon for the site specific study, which includes 232 samples from combined soil test pits, soil
borings and surface observations to vary from the more generalized, non -site specific NCRS maps
based on a 1:20,000 scale. Furthermore, the lack of agricultural soils in the mined area is also not
surprising nor suspicious based on the site conditions discovered subsequent to the 1998 site plan
and the bulk of evidence in the record substantiating the lack of agricultural soils.
OAR 660-033-0020(1)(a)(B) and (C) then expands the definition of 'Agricultural Land" to include:
(B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking
into consideration soil fertility, suitability for grazing; climatic conditions; existing and future
availability of water for farm irrigation purposes, existing land use patterns; technological and
energy inputs required, and accepted farming practices, and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby
agricultural lands.
OAR 660-033-0020(1)(a)(C) is addressed in more detail below, however it is important to note that
even when the "considerations" found in sub (B) point towards the Property being suitable for 'farm
use," none of the considerations, on their own, are determinative and all are qualified by the term
'farm use as defined in ORS 215.203(2)(a)[]" OAR 660-033-0020(1)(a)(B).
In relevant part, ORS 215.203(2)(a) states that:
"'farm use" means the current employment of land for the primary purpose of obtaining a profit
24
in money by raising, harvesting and selling crops or the feeding, breeding, management and sale
of, or the produce of, livestock, poultry, fur -bearing animals or honeybees or for dairying and the
sale of dairy products or any other agricultural or horticultural use or animal husbandry or any
combination thereof.
Emphasis added.
What is clear in this definition is that 'farm use" (as it is used in Oregon law) requires more than just
having a cow or horses, growing a patch of grapes, or having a passion for rural living. What the law
requires is that the land be used for "the primary purpose of obtaining a profit in money(.]" ORS
215.203(2)(a). In that, the law is clear.
Oregon courts have consistently addressed profitability as an element of the definition of "agricultural
land." In Wetherell v. Douglas County, 342 Or 666 (2007), the Oregon Supreme Court held that
profitability is a "profit in money" rather than gross income. In Wetherell, the Court invalidated a rule
that precluded a local government from analyzing profitability in money as part of this consideration.
Id. At 683. As may be helpful here, the Court stated.
"We further conclude that the meaning of "profitability," as used in OAR 660033-0030(5),
essentially mirrors that of "profit." For the reasons described above, that rule's prohibition of any
consideration of "profitability" in agricultural land use determinations conflicts with the definition
of 'farm use" in ORS 215.203(2)(a) and Goal 3, which permit such consideration. OAR 660-
0330030(5) is therefore invalid, because it prohibits consideration of "profitability" The factfinder
may consider "profitability" which includes consideration of the monetary benefits or advantages
that are or may be obtained from the farm use of the property and the costs or expenses
associated with those benefits, to the extent such consideration is consistent with the remainder
of the definition of "agricultural land" in Goal 3.
Finally, the prohibition in OAR 660-033-0030(5) of the consideration of 'gross farm income" in
determining whether a particular parcel of land is suitable for farm use also is invalid. As discussed
above, "profit" is the excess or the net of the returns or receipts over the costs or expenses
associated with the activity that produced the returns. To determine whether there is or can be a
"profit in money" from the "current employment of [the] land * * * by raising, harvesting and
selling crops,]" a factfinder can consider the gross income that is, or could be, generated from the
land in question, in addition to other considerations that relate to "profit" or are relevant under
ORS 215.203(2)(a) and Goal 3.
We therefore hold that, because Goal 3 provides that'farm use" is defined by ORS 215.203, which
includes a definition of 'farm use" as "the current employment of land for the primary purpose of
obtaining a profit in money(,]" LCDC may not preclude a local government making a land use
decision from considering "profitability" or 'gross farm income" in determining whether land is
"agricultural land" because it is "suitable for farm use" under Goal 3. Because OAR 660-033-
0030(5) precludes such consideration, it is invalid. Emphasis added. Id., at 681-683.
COLW argues that the Property is suitable for farm use because other properties in the surrounding
area have irrigated land and appear to be engaged in some form of agricultural activity. However, the
fact of the matter is that most Deschutes County EFU properties simply cannot meet this state
definition because the land cannot be put to profitable use. The 2017 Census of Agriculture (footnote
omitted] (Exhibit 13) makes it clear that most farms in the area lose money - a lot. And, while it is the
Applicant's burden to show it meets the applicable criteria, the applicable criteria do not ask the
Applicant to prove that no agricultural use could ever occur on the Property. The Applicant need only
demonstrate that no reasonable farmer would attempt to make a 'farm use" as that term is defined
by ORS 215.203 - for the primary purpose of obtaining a profit. In essence, the applicant need only
prove that the land is not suitable for farm use because it cannot make a profit from engaging in
agricultural activities on the subject property. The Applicant has done so through the evidentiary
submissions in the original application materials and as supplemented with the testimony of the
farmer growing hay under the pivot on the adjacent parcel, Ethan O'Brien, Exhibit 22, and a local
farmer/rancher Rand Campbell, Exhibit 23.
COLW's continued reference to TL300 being engaged in "commercial farm use" and being forced out
of agricultural production is disingenuous and not supported by the evidence in the record. COLW
offers its unsubstantiated opinions about the testimony of the two independent local
farmers/ranchers about the unsuitability of the subject property for farm use with a complete lack of
evidentiary support. These speculative arguments are not evidence and are insufficient to undermine
the actual experience of the farmers and their first-hand experiences and impressions of the land
based on their years of experience conducting viable commercial farm operations in Central Oregon,
C. Suitability Factors
(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,
OAR 660-033-0020(1)(a)(B).
Broken apart individually, this leaves the decision maker with the following considerations:
• Soil fertility;
• Suitability for grazing;
• Climatic conditions;
• Existing and future availability of water for farm irrigation purposes,
• Existing land patterns;
• Technological and energy inputs required; and
• Accepted farm practices.
This list of considerations is just that. considerations. None of them are determinative of whether a
property is suitable for farm use. As is described on pages 30-34 of the original application materials,
and pages 8-11 of the Soil Assessment, Exhibit 6, [footnote - summarized mistaken labeling of Exhibits]
and further supported below, each of these considerations, on balance, can reasonably determine
that the Property is not suitable for farm use.
26
a. Soil Fertility
The Property, as already established, has shallow, rocky soils. COLW argues that the Property will
become suitable under the "soil fertility"consideration once reclamation has properly occurred. COLW
is wrong. It is established in the Reclamation Evaluation and the Amended Reclamation Plan, there is
6-12 inches of topsoil over reclaimed wasterock. Even with the additional topsoil, the property will not
be suitable for farm use without significant expenditure as established in the testimony of Ethan
O'Brien, Exhibit 22, and Rand Campbell, Exhibit 23. COLW opines that once reclaimed, the property
could be suitable for farm use. However, it is not substantial evidence for COLW to simply argue that
there must be some agricultural use that may be made on the property. It is substantial evidence that
the Applicant has submitted testimony of 2 farmers and ranchers, both of whom are familiar with and
have been onsite, testifying that they would not attempt to establish such uses on the Property, or,
that other cost concerns make it infeasible. COLW has submitted no actual evidence to the contrary
and it is insufficient to merely attempt to poke holes in the Applicant's evidence as opposed to offering
evidence to support its own position. See May Trucking Co. v. Dept. of Transportation, 203 Or App.
564, 572-573, 126 P.3d 695, 700-701 (2006).
Furthermore, the Applicant's DLCD-accepted Soil Study that was prepared by Mr. Andy Gallagher, Red
Hills Soils, contains several notable findings within the Soil Study. For example, Mr. Gallagher found:
"Important soil properties affecting the soil fertility and productivity of the soils are very limiting
to crop production on this parcel. The soils here are low fertility, being ashy sandy foams with a
low cation exchange capacity (CEC) of 7.5 meq/100 gm and organic matter is very low for Gosney
0.75% and low for Deskamps 1.5916. These soils do not have a large capacity to store soil nutrients
especially cations, and nitrogen fertilizers readily leach in sandy soils. The soil depth is further
limiting because it limits the overall volume of soil available for plant roots and limits the size the
overall soil nutrient pool. Additionally, the soil available water holding capacity is very low for
Gosney and Henkle less than 1.8 inches for the whole soil profile, and for the very shallow soils it
is half this much. The Deskamps soils have only about 2 to 4 inches AWHC for the entire profile.
The combination of low fertility and IowAWHC translate into low productivity for crops. NRCS does
not provide any productivity data for non -irrigated crops on these soils."Exhibit 6, page 8.
These findings are further supported by the experience of Ethan O'Brien in farming of the adjacent
parcel under the pivot who testified that the parcel, even when irrigated, was not worth farming based
on a number of factors affecting the fertility including soil capacity, expense of soil amendments,
spraying, seeding, etc. Exhibit 22. Likewise, Rand Campbell corroborated these findings based on his
experience farming and ranching in Central Oregon and his onsite assessment of the subject property.
Mr. Campbell found even if the mined area were improved with additional topsoil, the cost to purchase
water and improve the land with irrigation facilities would far outweigh any anticipated profit given
the low productivity of the land.
b. Suitability for Grazing
COLW argues that the Property is suitable for grazing, if not by itself than in conjunction with other
lands, seasonally. COLW is incorrect. Suitability for grazing was addressed in the Soil Assessment,
27
pages 8-9, Exhibit 6, and again in the onsite assessment conducted by Rand Campbell, a Central
Oregon farmer and rancher. Exhibit 23. Mr. Campbell found the soil condition and topography were
not suitable for grazing considering the necessary costs to improve the soil for crop production
sufficient to graze livestock. Ethan O'Brien corroborated this testimony based on his own experience
and agreed no reasonable farmer would undertake the expense to improve this property to permit
livestock grazing given the low productivity of the land. Exhibit 22.
c. Climatic Conditions
The climatic conditions were addressed in the Soil Assessment, pages 9-10, Exhibit 6 and corroborated
by the testimony of both local farmers. The bottom line is this: the climatic conditions on the Property
do not make it suitable for farm use. This is because the Property receives very little precipitation such
that the growing season is very short and the cultivation of crops or forage is extremely limited.
d. Existing and Future Availability of Water for Farm Irrigation Purposes
The question of whether water is available necessary implicates whether, if irrigated, the Property
could viably support an irrigated agriculture farm use. It cannot. Soils on the property are
predominantly Class 7 and 8 based on 232 samples from combined soil test pits, soil borings and
surface observations. Oregon case law establishes that it is reasonable to look at nearby farm
properties for what are accepted farming practices in the area. The only irrigated agriculture in the
area includes the raising of hay and grass crops and, almost G// of these neighboring farms have
testified that they have been unable to make a profit in money, despite having access to irrigation
water. Exhibit 19.
Moreover, the cost of providing additional irrigation water and the required infrastructure is cost
prohibitive and no reasonable farmer would attempt to do so. Exhibits 20-23.
e. Existing Land Patterns
Applicant has provided extensive information related to the various non farm uses in the area. Exhibit
19. The Applicant attempted to contact every EFU-zoned property identified by COL as being irrigated
and engaged in some agricultural activity. Many of the commenters themselves live on properties that
have received approvals for non farm dwellings. This is relevant only to show that existing land use
patterns in the area are not dissimilar from the proposed designation here, that is, rural residential
use. This evidence also demonstrates that rural residential uses have been established in the area
without any measurable harm to area agricultural uses.
Applicant has also shown that the vast majority of surrounding privately owned properties are either
not engaged in any farm use or are engaged in some agricultural activity with small amounts of
irrigated land but not making a profit as a working farm. This information shows that the surrounding
land use pattern is clearly characterized by non farm and non-agricultural uses that exist in harmony
with area rural and agricultural activities.
f. Technological and Energy Inputs Required
As has already been discussed in detail, the test is whether the land itself can support a particular
farm use. It cannot. This consideration then includes additional costs outside of the already prohibitive
cost of purchasing irrigation water. Exhibits 20 and 21. This includes specialized equipment or
structures to establish a legitimate farm use, including bringing power to the property, drilling wells
and installing pumps, purchasing and installing irrigation equipment and using electricity to power
pumps to obtain water from wells. It would also include the costs of developing breeding facilities for
farm animals. All of these improvements would require significant financial expense, as testified in
writing by two professional ranchers/farmers. Exhibits 22 and 23.
g. Accepted Farm Practices
COL argues that there is "agricultural activity occurring in the area" but that is not the test. The test
is whether there is a 'farm use" as that term is defined in ORS 215.203(2)(a). As explained in Wetherell,
the definition of 'farm use" is related to that established under the taxation code found at ORS
308A.056. Wetherell, at 681. ORS 308A.056 also defines "accepted farm practice" as "a mode of
operation that is common to farms of a similar nature, necessaryfor the operation of these similar
farms to obtain a profit in money and customarily utilized on conjunction with farm use."
As it may pertain to the availability of irrigation water, in the Aceti case, LUBA accepted the County's
finding that it is not an accepted farming practice in Central Oregon to irrigate and cultivate Class VI/
and Vlll soils.
No other party has credibly argued that an accepted farm practice could be initiated on the Property.
D. OAR 660-033-0020(1)(a)(C)
For the purposes of Goal 3, "agricultural land" includes "[1]and that is necessary to permit farm
practices to be undertaken on adjacent or nearby agricultural lands."OAR 660-0330020(1)(a)(C). LUBA
has explained what that means, explaining that.
"in order to be 'agricultural land' under OAR 660-033-0020(1)(a)(C), 'there must be some connection
between the subject property and adjacent or nearby farm practices, such that the subject property
must remain as 'agricultural land' in order to permit such practices on other lands to be undertaken."
Emphasis in original.
Central Oregon LandWatch et al v. Deschutes County, _ Or LUBA_ (LUBA No. 2023-0061009, slip op
57-58)(hereinafter "LUBA 710 Decision') quoting Wetherell v. Douglas County, 50 Or LUBA 167, 190-
91 (2005).
In further explaining the rule, LUBA discusses the case of Walker v. Josephine County, 60 Or LUBA 186
(2009) in which it held that in determining whether "resource use of the subject property [was]
necessary to permit the farm and forest practices on nearby BLM land, including operation of the
BLM's seed orchard" and stated that the "possibility that certain potential uses might cause some
conflicts with the existing farm and forest uses [did] not demonstrate that the subject property [was]
MJ
necessaryfor continued farm and forest operations." 60 Or LUBA at 19293.
In the LUBA 710 Decision, LUBA then stated that:
"OAR 660-033-0020(1)(a)(C) asks not only whether the land itself is necessary to permit farm
practices on adjacent or nearby lands but, also, whether the land's resource designation and
zoning, and the presumed lack of impacts or conflicts with farming on adjacent or nearby lands,
are necessary to permit farm practices on adjacent or nearby lands." LUBA 710 Decision, slip op
59.
More simplystated, the test is whether or not the existing designation of the property and its presumed
lack of impacts is necessary for nearby and adjacent farm practices. In this case, the "impacts" that
have been identified are water, traffic, and nuisance or trespass.
Before addressing potential impacts, however, it is important to further frame the test as to what is
"necessary" under the rule. The Court of Appeals said it best.
"we note that we also agree with LUBA that 'necessary to permit farm practices on adjacent or
nearby agricultural lands' is a 'high standard.' Webster's Third New Intl Dictionary 1510
(unabridged 2002) ('necessary' means 'whatever is essentially for some purpose' and 'things that
must be had'q. That is, we do not understand land to be agricultural land under OAR 660-033-
0020(1)(a)(C) merely because its designation as such 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
nearby farm practices." Emphasis added. Central Oregon LandWatch et al v. Deschutes County, 33
Or App 321, 333 (2024).
The subject property has no history of farm use and has been in mining use or post -mining use since
the early 1990s. Contrary to the assertions of COLW, the property line adjustment between the subject
property (TL200) and the adjacent parcel (TL300) completed in 2016 was to separate the property
being put to agricultural use (TL300) from the nonagricultural use subject property. This is further
supported by the Arnold piping project which stubbed irrigation to TL300 and not to the subject
property. And it is corroborated by the testimony of Ethan O'Brien, Exhibit 22, who testified he has
never farmed the subject property, sees no evidence it has ever been farmed, and would not farm or
otherwise use the subject property in his operation. The .historicalnonogricultural purposes establishes
it is not necessary for any farm practices to be undertaken on adjacent lands. This is further
corroborated by the testimony of the land owners in the area engaging in agricultural activities. Exhibit
19.
E. OAR 660-033-0020(1)(b) - Farm Unit
This provision provides:
"Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled with lands in
capability classes I-IV/I-VI within a farm unit, shall be inventoried as agricultural lands even though
30
this land may not be cropped or grazed." Emphasis added.
The important consideration for the above language is the lands must be apart of a farm unit for this
requirement to be implicated. Farm unit is defined as "the contiguous and noncontiguous tracts in
common ownership used by the farm operator for farm use as defined in ORS 215.203." The present
case does not involve a farm unit as the subject property is not currently being used for a farm use
and there is no evidence it ever has been. It therefore does not constitute land intermingled with higher
value lands "within a farm unit" as described by the rule quoted above. As demonstrated by the
testimony of both farmers/ranchers familiar with the property, it is not productive land, shows no
evidence of having been farmed, and has not been used as a part of the existing operation on TL300.
COLW's argument that the subject property is apart of a farm unit is patently false and not supported
by the evidence in the record. The lot line adjustment they cite to as evidence the properties were
'jointly managed for agriculture" shows exactly the opposite. The lot line application materials show
that the subject property was being separated from TL300 because TL300 was being used for
agricultural purposes, although at a loss, COLW Ex 5, p. 5 and therefore not 'form use', and the area
which now makes up TL200 (the subject property) was not. The testimony of Ethan O'Brien and Rand
Campbell further supports the fact that the subject property has not been used as a part of any farm
use on the adjacent parcel, or any other parcel.
Likewise, the exhibits COLW cites to in support of their incorrect narrative that the property could be
farmed profitably (see COLW Dec 3 letter, pg. 4) do not support the conclusion. There is no evidence
that the numbers on COLW EX 5, p. 17 include any portion of the subject property. In fact, those income
numbers are from 2008-2010 when the Reclamation Evaluation establishes that 70-90 acres of the
subject property was being mined up to 2005 and incrementally reclaimed through 2010, Exhibit 8,
page10 , which was verified by DOGAMI in 2011. Exhibit 10. Lastly, the numbers COLW cites to in
support of its claim the subject property could be farmed profitably in conjunction with TL300 were
submitted by the applicant in that case to support its position that the farm activities operate "at a
consistent loss." COLW Exhibit 5, pg. 5. This fact is confirmed by the testimony of both farmers
familiar with the subject property and what it takes to make a profit farming in Central Oregon.
End of Applicant's Final Argument "Agricultural Land" Comments
The Hearings Officer, as noted above, finds the Applicant's above -quoted "Soils" and "Agricultural
Land" comments correctly connect the evidence in the record to an appropriate interpretation of
relevant laws. The Hearings Officer takes note that COLW (12/9/24, pages 2 through 6) argued that
emails from Ethan O'Brien and Rand Campbell are "not conclusive to prove the subject property is
not suitable for farm use." The Hearings Officer agrees with COLW that the O'Brien and Campbell
comments are not conclusive with respect to whether the Subject Property is suitable for farm use.
However, the Hearings Officer does find that the O'Brien and Campbell comments can be
considered in this case. The Hearings Officer finds the O'Brien and Campbell comments constitute
substantial evidence that the Subject Property is not suitable for farm use.
The Hearings Officer finds the above -quoted Applicant Final Argument comments and the sections
of the Burden of Proof cited by Staff (Staff Report, pages 33 through and including 39) adequately
31
address each COLW argument raised in oral testimony at the Hearing and in record submissions
(11/12/24 and 12/9/24). The Hearings Officer finds that the Subject Property is not "Agricultural
Land" as defined by relevant law. The Hearings Officer finds, to the extent it could be considered
relevant, this policy is satisfied.
Policy 2.2.2 Exclusive Farm Use sub -zones shall remain as described in the 1992 Farm
Study and shown in the table below, unless adequate legal findings for amending the sub -
zones are adopted or an individual parcel is rezoned as allowed by Policy 2.2.3.
FINDING: The Applicant did not ask to amend the subzone that applies to the Subject Property;
rather, the Applicant requested a change under Policy 2.2.3 and has provided evidence to support
rezoning the Subject Property to RR-10.
Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including for those
that qualify as non -resource land, for individual EFU parcels as allowed by State Statute,
Oregon Administrative Rules and this Comprehensive Plan.
FINDING: The Hearings Officer adopts as additional findings for this Policy the findings for Deschutes
County Comprehensive Plan, Chapter 2, Resource Management Section 2.2 Agricultural Lands Goal 1,
Preserve and Maintain Agricultural Lands and the Agricultural Industry and also the findings for Oregon
Administrative Rules Division 33- Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands,
The Applicant requested approval of a plan amendment and zone change to re -designate the
property from Agricultural to Rural Residential Exception Area and rezone the property from EFU to
RR-10. The Applicant did not seek an exception to Goal 3 - Agricultural Lands, but rather to
demonstrate that the Subject Property does not meet the state definition of "Agricultural Land" as
set forth in Statewide Planning Goal 3 (OAR 660-033-0020). The Hearings Officer found, in the
referenced incorporated and adopted findings, that the Subject Property is not "Agricultural Land"
as described in relevant law. The Hearings Officer notes that the Land Use Board of Appeals ("LUBA')
allowed this approach in Wetherell v. Douglas County, 52 Or LUBA 677 (2006), where LUBA states,
at pp. 678-679:
Applicant, in its Burden of Proof provided the following comments related to this Policy:
Deschutes County has allowed this approach in previous Deschutes County Board and Hearings
Officer's decisions as previously cited and summarized herein. Additionally, the Land Use Board of
Appeals (LUBA) allowed this approach in Wetherell v. Douglas County, 52 Or LUBA 677 (2006), where
LUBA states, at pp. 678-679:
"As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are two ways a
county can justify a decision to allow nonresource use of land previously designated and zoned
for farm use or forest uses. One is to take an exception to Goal 3 (Agricultural Lands) and Goal 4
(Forest Lands). The other is to adopt findings which demonstrate the land does not qualify either
as forest lands or agricultural lands under the statewide planning goals. When a county pursues
the latter option, it must demonstrate that despite the prior resource plan and zoning designation,
32
neither Goal 3 or Goal 4 applies to the property." Caine v. Tillamook County, 25 Or LUBA 209,
218 (1993); DLCD v. Josephine County, 18 Or LUBA 798, 802 (1990).
LUBA's decision in Wetherell was appealed to the Oregon Court of Appeals and the Oregon Supreme
Court but neither court disturbed LUBA's ruling on this point. In fact, the Oregon Supreme Court
changed the test for determining whether land is agricultural land to make it less stringent. Wetherell
v. Douglas County, 342 Or 666, 160 P3d 614 (2007). In that case, the Supreme Court stated that:
"Under Goal 3, land must be preserved as agricultural land if it is suitable for' farm use" as defined
in ORS 215.203(2)(a), which means, in part, "the current employment of land for the primary
purpose of obtaining a profit in money" through specific farming -related endeavors." Wetherell,
342 Or at 677.
The Wetherell court held that when deciding whether land is agricultural land "a local government
may not be precluded from considering the costs or expenses of engaging in those activities."
Wetherell, 342 Or at 680. The facts presented in the subject application are sufficiently similar to those
in the Wetherall decisions and in the above -mentioned Deschutes County plan amendment and zone
change applications. The subject property is primarily composed of Class 7 and 8 nonagricultural soils
making farm -related endeavors not profitable. This application complies with Policy 2.2.3.
Staff, in the Staff Report (page 22), stated that:
Staff agrees that the facts presented by the Applicant in the Burden of Proof for the subject application
are similar to those in the Wetherell decisions and in the aforementioned Deschutes County plan
amendment and zone change applications. The Applicant provided evidence in the record addressing
whether the property qualifies as non -resource land. Therefore, the Applicant has the potential to
prove the property is not agricultural land and does not require an exception to Goal 3 under state
law.
The Hearings Officer concurs with Applicant's above -quoted analysis and Staffs conclusions. The
Hearings Officer finds this application does not require an exception to Goal 3 under state law.
Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity on when
and how EFU parcels can be converted to other designations.
FINDING: This plan policy provides direction to Deschutes County to develop new policies to
provide clarity when EFU parcels can be converted to other designations. Staff concurred with the
County's previous determinations in plan amendment and zone change applications, and concluded
that the proposal is consistent with this policy. Goal 3, Ensure Exclusive Farm Use policies,
classifications and codes are consistent with local and emerging agricultural conditions and
markets. The Hearings Officer agrees with Staffs interpretation.
Goal 3, Ensure Exclusive Farm Use policies, classifications and codes are consistent
with local and emerging agricultural conditions and markets.
33
Policy 2.2.13 Identify and retain accurately designated agricultural lands.
FINDING: This plan policy requires the County to identify and retain agricultural lands that are
accurately designated. The Applicant proposed that the Subject Property was not accurately
designated as demonstrated by the soil study, Applicant's Burden of Proof and Final Argument. The
Hearings Officer adopts as additional findings for this Policy the findings for Deschutes County
Comprehensive Plan, Chapter 2, Resource Management Section 2.2 Agricultural Lands Goal 1, Preserve
and Maintain Agricultural Lands and the Agricultural Industry and also the findings for Oregon
Administrative Rules Division 33- Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands.
The Hearings Officer finds Applicant identified and accurately designated the Subject Property as
not being "Agricultural Land" under relevant law.
Section 2.3, Forests
FINDING: The Subject Property has a Comprehensive Plan designation of Surface Mine and
Agriculture and is therefore not categorized as forest land. The Hearings Officer finds forest land
policies do not apply.
Section 2.4 Goal 5 Overview Policies
Goal 1 Protect Goal 5 Resources
FINDING: The Hearings Officer adopts as additional findings for this Goal the findings for
Preliminary Issues, Reclamation (Section II, A. 2.)
The Hearings Officer finds that the surface mine site has concluded all mining activities. Individual
resources within this section are addressed independently.
Policy 2.4.4 Incorporate new information into the Goal 5 inventory as requested by an
applicant or as County staff resources allow.
FINDING: The Hearings Officer adopts as additional findings for this Goal the findings for
Preliminary Issues, Reclamation (Section II, A. 2.)
The Burden of proof states:
This application provides new information supporting rezoning of Site No. 392 and removal of Site
No. 392 from the County's Surface Mining Mineral and Aggregate Inventory (Comprehensive Plan Table
5.8.1). Mining of the subject property ceased in 2005, DOGAMI closed its file in 2011 and the County
recently approved an Amended Reclamation Plan (Exhibit 11 to allow any remaining reclamation to
be conducted in conjunction with the master planning and redevelopment of the site as a public park.
(Exhibit 4). Furthermore, the Gallagher Report demonstrates the site does not contain a significant
Goal 5 resource based on the quantity, quality, and location of the resource and was never subject to
a DOGAMI approved reclamation plan.
34
The Hearings Officer concurs with the Applicant's analysis.
Section 2.5, Water Resources Policies
Goal 6, Coordinate land use and water policies.
Policy 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed for
significant land uses or developments.
FINDING: The Applicant has not proposed a specific development application at this time.
Therefore, the Applicant is not required to address water impacts associated with development.
Rather, the Applicant will be required to address this criterion during development of the Subject
Property, which would be reviewed under any necessary land use process for the site (e.g.
conditional use permit, tentative plat). The Hearings Officer finds that this criterion does not apply
to the subject application.
Section 2.6, Wildlife
FINDING: The Hearings Officer finds that there are no Goal 5 listed wildlife species present on the
Subject Property, based on the Goal 5 inventory nor threatened or endangered species. The
Hearings Officer finds that there is no identified wildlife habitat on the Subject Property.
Section 2.7, Open Spaces. Scenic Views and Sites
Goal 1, Coordinate with property owners to ensure protection of significant open spaces
and scenic view and sites.
Policy 2.7.3 Support efforts to identify and protect significant open spaces and visually
important areas including those that provide a visual separation between
communities such as the open spaces of Bend and Redmond or lands that are visually
prominent.
Policy 2.7.5 Encourage new development to be sensitive to scenic views and sites.
FINDING: The Burden of Proof states:
As the County Hearings Officer recently ruled in a similar file under Deschutes County File Nos. 247-
21-001043-PA, 247-21-001044-ZC, these policies are fulfilled by the County's Goal 5 program. The
County protects scenic views and sites along major rivers and roadways by imposing Landscape
Management am) Combining Zones to adjacent properties. There is no LM combining zone applicable
to the subject property, nor is the subject property identified as a Goal 5 resource for Open Space or
Scenic Views/Site( (footnote 5 is set forth immediately below] Furthermore, no new development is
proposed under the present application. These plan provisions are not applicable to consideration of
the proposed zone change and plan amendment.
35
Footnote 5 SM site 392 is listed on the County's Surface Mining Mineral and Aggregate inventory. The
present application, together with the previously approved Amended Reclamation Plan, establishes
the necessary basis for removal of the site from the inventory and rezoning for a subsequent use.
The Hearings Officer concurs with the Applicant's above -quoted analysis.
Section 2.10 Surface Mining
Goal 1 Protect and utilize mineral and aggregate resources while minimizing adverse
impacts of extraction, processing and transporting the resource.
Policy 2.10.1 Goal 5 mining inventories, ESEEs and programs are retained and not
repealed.
Policy 2.10.2 Cooperate and coordinate mining regulations with the Oregon
Department of Geology and Mineral Industries.
Policy 2.10.3 Balance protection of mineral and aggregate resources with conflicting
resources and uses.
Policy 2.10.4 Review surface mining codes and revise as needed to consider especially
mitigation factors, imported material and reclamation.
Policy 2.10.5 Review surface mining site inventories as described in Section 2.4,
including the associated Economic, Social, Environmental and Energy (ESEE) analyses.
Policy 2.10.6 Support efforts by private property owners and appropriate regulatory
agencies to address reclamation of Goal 5 mine sites approved under 660-016 following
mineral extraction.
FINDING: Applicant's Burden of Proof states:
The present application asks the County to rezone Site No. 392 from SM to RR-10 because it no longer
has a significant mineral resource and will be reclaimed in accordance with the Amended Reclamation
Plan (Exhibit 11) approved by the County in 2023. The subject property should be rezoned for a
subsequent use consistent with the surrounding uses as it is underutilized and ready for a subsequent
use outside of the SM zone. The Applicant proposes the SMIA zone associated with Site No. 392 also
be removed.
Staff provided the following comments:
Staff concurs with this analysis but requests the Hearings Officer modify as they see fit. Staff notes
that Policy 2.10.4 is not addressed by the applicant in the Burden of Proof. However, no amendment
is proposed to the provisions of the Surface Mining Zone or the Surface Mining Impact Area Combining
36
Zone.
The Hearings Officer finds Applicant's comments, as quoted above, adequately address these
policies. The Hearings Officer concurs with Staffs comment that no amendment is proposed to the
provisions of the Surface Mining Zone or Surface Mining Impact Area Combing Zone, The Hearings
Officer finds these policies, as relevant, are met.
Chapter 3, Rural Growth
Section 3.2, Rural Development
Growth Potential
As of 2010, the strong population growth of the last decade in Deschutes County was
thought to have leveled off due to the economic recession. Besides flatter growth
patterns, changes to State regulations opened up additional opportunities for new rural
development. The following list identifies general categories for creating new residential
lots, all of which are subject to specific State regulations.
• 2009 legislation permits a new analysis of agricultural designated lands
• Exceptions can be granted from the Statewide Planning Goals
• Some farm lands with poor soils that are adjacent to rural residential uses can be
rezoned as rural residential
FINDING: This section of the Comprehensive Plan does not contain Goals or Policies, but does
provide the guidance above. The Applicant provided the following response to this section in its
Burden of Proof:
The above part of the plan is not a plan policy and is not an applicable approval criterion but rather
on explanation of how the County calculated expected growth. As shown above, the County's
Comprehensive Plan provisions anticipate the need for additional rural residential
lots as the region continues to grow. This includes providing a mechanism to rezone surface mine
lands which have been fully mined and reclaimed as well as farm lands with poor soils to a rural
residential zoning designation. While this rezone application does not include the creation of new
residential lots, the applicant has demonstrated the subject property is comprised of poor soils that
are adjacent to rural residential uses and is near (within % mile) of the City limits of Bend.
Rezoning the subject property to RR-10 to facilitate its redevelopment with recreational uses, including
a public park is consistent with this criterion, as it will provide for an orderly and efficient transition
from the Bend Urban Growth Boundary to rural and agricultural lands. Additionally, it will link the
non -productive lands of the subject property with existing rural and urban development and street
systems, furthering the creation a buffer of RR-10 zoned land along the City's southeastern boundary
where the quality of soils are poor and the land is not conducive for commercial agriculture.
Staff provided the following comments:
37
Staff notes this policy references the soil quality, which staff has discussed above. Staff requests the
Hearings Officer make specific findings on this topic.
The Hearings Officer adopts as additional findings for this section the findings for Deschutes County
Comprehensive Plan, Chapter 2, Resource Management Section 2.2 Agricultural Lands Goal 1, Preserve
and Maintain Agricultural Lands and the Agricultural Industry and also the findings for Oregon
Administrative Rules Division 33- Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands.
The Hearings Officer finds the soil quality of the Subject Property can fairly be characterized as
"poor." The characterization of the Subject Property as having "poor" quality soil qualifies the
Subject Property to be rezoned as rural residential.
Section 3.3, Rural Housing
Rural Residential Exception Areas
In Deschutes County most rural lands are designated for farms, forests or other resources
and protected as described in the Resource Management chapter of this Plan. The
majority of the land not recognized as resource lands or Unincorporated Community is
designated Rural Residential Exception Area. The County had to follow a process under
Statewide Goal 2 to explain why these lands did not warrant farm or forest zoning. The
major determinant was that many of these lands were platted for residential use before
Statewide Planning was adopted.
In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential
Exception Area parcels, enough to meet anticipated demand for new rural housing. As of
2010 any new Rural Residential Exception Areas need to be justified through initiating a
nonresource 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.
FINDING: The Applicant provided the following response to this provision in the Burden of Proof:
Prior Hearings Officer's decisions have found that Section 3.3 is not a plan policy or directive.ffootnote
references prior decisions/recommendations] Further, no goal exception to Statewide Planning Goal
3 is required for the rezone application because the subject property does not qualify as farm or forest
zoning or agricultural lands under the statewide planninggoals. The County has interpreted the RREA
plan designation as the proper "catchall" designation for non -resource land and therefore, the Rural
Residential Exception Area (RREA) plan designation is the appropriate plan designation to apply to the
subject property. jfootnote 7 included, in full, below]
Footnote 7:
The Hearings Officer's decision for PA- 11-17/ZC-11-2 concerning this language of Section 3.3
states:
To the extent that the quoted language above represents a policy, it appears to be directed at a
fundamentally different situation than the one presented in this application. The quoted language
addresses conversions of 'form" or 'forest" land to rural residential use. In those cases, the
language indicates that some type of exception understate statute and DLCD rules will be required
in order to support a change in Comprehensive Plan designation. See ORS 197.732 and OAR 660,
Division 004. That is not what this application seeks to do. The findings below explain that the
applicant has been successful in demonstrating that the subject properly is composed
predominantly of nonagricultural soil types. Therefore, it is permissible to conclude that
the properly is not "farmland" as defined under state statute, DLCD rules, and that it is not
correctly zoned for exclusive farm use. As such, the application does not seek to convert
"agricultural/and" to rural residential use. If the land is demonstrated to not be composed of
agricultural soils, then there is no "exception" to be taken. There is no reason that the applicant
should be made to demonstrate a reasons, developed or committed exception under state law
because the subject property is not composed of the type of preferred land which the exceptions
process was designed to protect. For all these reasons, the Hearings Officer concludes that
the applicant is not required to obtain an exception to Goal3.
There is one additional related matter which warrants discussion in connection with this issue. It
appears that part of Staffs hesitation and caution on the issue of whether an exception might be
required is rooted in the title of the Comprehensive Plan designation that would ultimately apply
to the subject property - which is "Rural Residential Exception Area." There appears to be seven
countywide Comprehensive Plan designations as identified in the plan itself. These include
"Agriculture, Airport Development, Destination Resort Combining Zone, Forest, Open Space and
Conservation, Rural Residential Exception Area, and Surface Mining." Of the seven designations,
only rural Residential Exception Area provides for associated zoning that will allow rural
residential development. As demonstrated by reference to the Pagel decision discussed
above, there appears to be instances in which rural residential zoning has been applied
without the underlying land necessarily being identified as an exception area. This makes
the title of the "Rural Residential Exception Area" designation confusing and in some cases
inaccurate, because no exception is associated with the underlying land in question. However, it
is understandable that since this designation is the only one that will allow rural residential
development, that it has become a catchall designation for land types that are authorized for rural
residential zoning. That is the case with the current proposal, and again, for the same reason set
forth in the Hearings Officer Green's decision in Pagel, I cannot find a reason why the County would
be prohibited from this practice. (emphasis added).
I find that Deschutes County has interpreted the RREA plan designation as the property "catchall"
designation for non -resource land. As a result, the Hearings Officer finds that the RREA plan
designation is the appropriate plan designation for the subject property.
The Hearings Officer finds the above -quoted Applicant statement (including footnotes) fairly and
accurately reflect the law as applied to Section 3.3, Rural Housing, Rural Residential Exception
Areas.
39
Section 3.7, Transportation
Appendix C - Transportation System Plan
ARTERIAL AND COLLECTOR ROAD PLAN
Goal 3. Mobility and Connectivity: Promote a multimodal transportation system that
moves people and goods between rural communities and Sisters, Redmond, Bend, La
Pine, and other key destinations within the County as well as to the adjacent counties,
Central Oregon, and the state.
FINDING: This goal applies to the County and advises it to consider the roadway function,
classification and capacity as criteria for plan amendments and zone changes. The County will
comply with this direction by determining compliance with the Transportation Planning Rule ("TPR"),
also known as OAR 660-012, as described below in subsequent findings.
Goal 4. Establish a transportation system, supportive of a geographically distributed and
diversified economic base, while also providing a safe, efficient network for residential
mobility and tourism.
Policy 4.4 Deschutes County shall consider roadway function, classification and
capacity as criteria for plan map amendments and zone changes. This shall assure that
proposed land uses do not exceed the planned capacity of the transportation system.
FINDING: This Goal policy applies to the County and advises it to consider the roadway function,
classification and capacity as criteria for plan amendments and zone changes. The County will
comply with this direction by determining compliance with OAR 660-012, also known as the TPR, as
described below in subsequent findings.
OREGON ADMINISTRATIVE RULES CHAPTER 660, LAND CONSERVATION AND DEVELOPMENT
DEPARTMENT
Division 6, Goal 4 - Forest Lands
OAR 660-006-0005, Definitions
(7) "Forest lands" as defined in Goal 4 are those lands acknowledged as forest lands, or, in
the case of a plan amendment, forest lands shall include:
(a) Lands that are suitable for commercial forest uses, including adjacent or nearby
lands which are necessary to permit forest operations or practices; and
(b) Other forested lands that maintain soil, air, water and fish and wildlife resources.
FINDING: Applicant's Burden of Proof states:
The subject property and surrounding areas do not include any lands that are suited for forestry
operations. Goal 4 says that forest lands "are those lands acknowledged as forest lands as of the date
.N
of adoption of this goal amendment." The subject property does not include lands acknowledged as
forest lands as of the date of adoption of Goal 4. Goal 4 also says that "where**a plan amendment
involving forest lands is proposed, forest land shall include lands which are suitable for commercial
forest uses including adjacent or nearby lands which are necessary to permit forest operations or
practices and other forested lands that maintain soil, air, water and fish and wildlife resources." This
plan amendment does not involve any forest land. The subject property does not contain any
merchantable timber and is not located in a forested part of Deschutes County. The subject property
is not zoned for forest lands, nor are any of the properties within a 3.5mile radius.
The subject property does not contain merchantable tree species and there is no evidence in the record
that the property has been employed for forestry uses historically. The soil mapping unit on the
subject property does not contain wood fiber production capabilities and the subject property does
not qualify as forest land.
The Subject Property is not zoned for forest lands, nor are any of the adjacent properties. Staff
noted (Staff Report, page 29) that forest zoning is present on lands to the southwest and directly
south of the Subject Property. The Subject Property does not contain merchantable tree species
and there is no evidence in the record that the Subject Property has been employed for forestry
uses historically. The Hearings Officer finds that the Subject Property does not qualify as forest land.
Division 23 - Procedures and requirements for Complying with Goal 5
OAR 660-023-0180, Mineral and Aggregate Resources
(2) Local governments are not required to amend acknowledged inventories or plans with
regard to mineral and aggregate resources except in response to an application for a post
acknowledgement plan amendment (PAPA) or at periodic review as specified in section
(9) of this rule. The requirements of this rule modify, supplement, or supersede the
requirements of the standard Goal 5 process in OAR 660-023-0030 through 660-023-0050,
as follows:
(b) Local governments shall apply the criteria in section (3) or (4) of this rule,
whichever is applicable, rather than OAR 660-023-0030(4), in determining whether an
aggregate resource site is significant;
FINDING: The Burden of Proof states:
Under OAR 660-023-010, the term "post acknowledgement plan amendment" (PAPA) encompasses
actions taken in accordance with ORS 197.610 through 197,625, including amendments to an
acknowledged comprehensive plan or land use regulation and the adoption of any new plan or land
use regulation. In the Stott (PA-98-12/ZC-98-6) and Kimble (PA-07-2/ZC-07-2) decisions, the Hearings
Officer held that a plan amendment and zone change to "de -list" and rezone an inventoried surface
mining site constitutes a PAPA, and therefore the provisions of OAR 660-023-0180 concerning mineral
and aggregate resources apply to such an application to the extent they reasonably can be applied to
a decision to remove a site from the County's adopted inventory.
41
The proposed amendment constitutes a PAPA as outlined in the Stott and Kimball decisions. A
determination of significance is required to de -list a Goal 5 aggregate resource. The thresholds for
significance are addressed in the responses to OAR 660-023-0180(3) and (4), below.
The Hearings Officer takes note of Applicant's above -quoted statement and shall address sections
(3) and (4) below.
(3) An aggregate resource site shall be considered significant if adequate information
regarding the quantity, quality, and location of the resource demonstrates that the site
meets any one of the criteria in subsections (a) through (c) of this section, except as
provided in subsection (d) of this section:
(a) A representative set of samples of aggregate material in the deposit on the site
meets applicable Oregon Department of Transportation (ODOT) specifications for
base rock for air degradation, abrasion, and soundness, and the estimated amount of
material is more than 2,000,000 tons in the Willamette Valley, or more than 500,000
tons outside the Willamette Valley;
FINDING: The Burden of Proof states:
The County's Goal 5 inventory indicates that Site No. 392 contains the following:
#
Taxlot
Name
Type
Quantity*
Quality
Access/Location
392
181223-00-
Rose
Rock
10 M Est.
Mixed
00300
392
181223-00-
Rose
Dirt
7.5 M
Good
00300
*Quantity in cub [sic] yards
The County's Goal 5 mineral and aggregate inventory lists site 392 as a sand and gravel site and the
findings in the ESEE establish the County did not find the aggregate resource on site worthy of
protection. The ESEE further acknowledges the mining use is transitional and the site could be rezoned
for other uses where the mining use is complete. The ESEE does not specify, and in fact is silent as to,
a subsequent zoning designation. The DOGAMI files for the subject property have been closed since
2011.
The Hearings Officer finds Applicant's statement and analysis is credible and reflects relevant law.
(b) The material meets local government standards establishing a lower threshold for
significance than subsection (a) of this section; or
FINDING: No lower threshold has been established by Deschutes County.
(c) The aggregate site was on an inventory of significant aggregate sites in an
acknowledged plan on September 1, 1996.
42
FINDING: The Burden of Proof states:
Site No. 392 is included in the County's inventoryfor the sand and gravel resource not for aggregate.
This criterion does not apply.
The Hearings Officer concurs with the Applicants' analysis.
(d) Notwithstanding subsections (a) and (b) of this section, except for an expansion
area of an existing site if the operator of the existing site on March 1, 1996, had an
enforceable property interest in the expansion area on that date, an aggregate site is
not significant if the criteria in either paragraphs (A) or (B) of this subsection apply:
(A) More than 35 percent of the proposed mining area consists of soil classified as
Class I on Natural Resource and Conservation Service (NRCS) maps on June 11, 2004;
or
(B) More than 35 percent of the proposed mining area consists of soil classified as
Class 11, or of a combination of Class 11 and Class I or Unique soil, on NRCS maps
available on June 11, 2004, unless the average thickness of the aggregate layer
within the mining area exceeds:
(i) 60 feet in Washington, Multnomah, Marion, Columbia, and Lane counties;
(ii) 25 feet in Polk, Yamhill, and Clackamas counties; or
(iii) 17 feet in Linn and Benton counties.
FINDING: The Burden of Proof states:
The criterion does not apply. The subject property does not contain any Class /, Class ll, or Unique soils
as confirmed by the Wallace Group Report (Exhibit 8) and Amended Reclamation Plan (Exhibit 11), as
well as the Site -Specific Soil Survey that was conducted by Certified Soil Scientist, Andy Gallagher and
has been submitted to the Department of Land Conservation and Development (DLCD) in accordance
with OAR 660-033-0045(6)(a) (Exhibit 6). Staff concurs with the applicant's analysis.
The Hearings Officer concurs with Applicant's analysis.
(4) Notwithstanding section (3) of this rule, a local government may also determine that
an aggregate resource site on farmland is significant if subsections (a) and (b) of this
section apply or if subsection (c) of this section applies:
FINDING: The Burden of Proof states:
The criterion does not apply. Site No. 392 is not identified as agricultural lands on the acknowledged
Deschutes County Comprehensive Plan map, and it has not been farmed or used in conjunction with
any farming operation. The study conducted by Mr. Gallagher confirms the site is composed
5N
predominantly of Class 7 and 8 soils and therefore does not meet the definition of agricultural land.
(Exhibit 6).
The Hearings Officer concurs with the Applicant's analysis.
Division 33 - Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands;
OAR 660-015-0000(3)
To preserve and maintain agricultural lands.
Agricultural lands shall be preserved and maintained for farm use, consistent with
existing and future needs for agricultural products, forest and open space and with the
state's agricultural land use policy expressed in ORS 215.243 and 215.700.
FINDING: The Hearings Officer incorporates the findings for Deschutes County Comprehensive Plan,
Chapter 2, Resource Management Section 2.2 Agricultural Lands Goal 1, Preserve and Maintain
Agricultural Lands and the Agricultural Industry and also the findings for Oregon Administrative Rules
Division 33- Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands as additional findings
for this section.
OAR 660-033-0020, Definitions
For purposes of this division, the definitions in ORS 197.015, the Statewide Planning Goals,
and OAR Chapter 660 shall apply. In addition, the following definitions shall apply: (1)(a)
"Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as
predominantly Class 1-IV soils in Western Oregon and I -VI soils in Eastern Oregon;
FINDING: The Applicant's stated reason for not requesting an exception to Goal 3 is based on the
premise that the Subject Property is not "Agricultural Land." The Hearings Officer incorporates the
findings for Deschutes County Comprehensive Plan, Chapter 2, Resource Management Section 2.2
Agricultural Lands Goal 1, Preserve and Maintain Agricultural Lands and the Agricultural Industry and
also the findings for Oregon Administrative Rules Division 33- Agricultural Lands & Statewide Planning
Goal 3 - Agricultural Lands as additional findings for this section. The Hearings Officer also found
persuasive Applicant's Burden of Proof statements as set forth in the Staff Report (pages 33 through
and including 45). Based upon the incorporated findings the Hearings Officer finds that the Subject
Property is comprised predominantly of Class 7 and Class 8 soils. The Hearings Officer finds that
the Subject Property is not "Agricultural Land" as defined in OAR 660-033-0020(1)(a)(A) above.
(B) Land in other soil classes that is suitable for farm use as defined in ORS
215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic
conditions; existing and future availability of water for farm irrigation purposes;
existing land use patterns; technological and energy inputs required; and accepted
farming practices; and
FINDING: The Applicant's stated reason for not requesting an exception to Goal 3 is based on the
premise that the Subject Property is not "Agricultural Land." The Hearings Officer incorporates the
findings for Deschutes County Comprehensive Plan, Chapter 2, Resource Management Section 2.2
Agricultural Lands Goal 1, Preserve and Maintain Agricultural Lands and the Agricultural Industry and
also the findings for Oregon Administrative Rules Division 33- Agricultural Lands & Statewide Planning
Goal 3 - Agricultural Lands as additional findings for this section. The Hearings Officer also found
persuasive Applicant's Burden of Proof statements as set forth in the Staff Report (pages 33 through
and including 38).
Based upon the incorporated findings the Hearings Officer finds that the Subject Property is
comprised predominantly of Class 7 and Class 8 soils and based upon the factors identified in (B)
above that the Subject Property is not "Agricultural Land" and not "suitable for farm use" as defined
by ORS 215.203(2)(a).
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or
nearby agricultural lands.
FINDING: The Applicant's stated reason for not requesting an exception to Goal 3 is based on the
premise that the Subject Property is not "Agricultural Land." The Hearings Officer incorporates the
findings for Deschutes County Comprehensive Plan, Chapter 2, Resource Management Section 2.2
Agricultural Lands Goal 1, Preserve and Maintain Agricultural Lands and the Agricultural Industry and
also the findings for Oregon Administrative Rules Division 33- Agricultural Lands & Statewide Planning
Goal 3 - Agricultural Lands as additional findings for this section. The Hearings Officer also found
persuasive Applicant's Burden of Proof statements as set forth in the Staff Report (page 39).
Staff (Staff Report, page 39) concurred with the Applicant's analysis and finds no feasible way that
the Subject Property is necessary for the purposes of permitting farm practices on any nearby
parcels. The Hearings Officer finding that the Subject Property is not necessary for purposes of
permitting farm practices on any nearby parcels is based in part on poor soil quality and existing
development on surrounding EFU properties.
(b) Land in capability classes other than I-IV/I-VI that is adjacent to or intermingled
with lands in capability classes I-IV/I-VI within a farm unit, shall be inventoried as
agricultural lands even though this land may not be cropped or grazed;
FINDING: The Applicant's stated reason for not requesting an exception to Goal 3 is based on the
premise that the Subject Property is not "Agricultural Land" and by extension not part of a "farm
unit." The Hearings Officer incorporates the findings for Deschutes County Comprehensive Plan,
Chapter 2, Resource Management Section 2.2 Agricultural Lands Goal 1, Preserve and Maintain
Agricultural Lands and the Agricultural Industry and also the findings for Oregon Administrative Rules
Division 33- Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands as additional findings
for this section. The Hearings Officer also finds persuasive the Applicant's Burden of Proof
statements included by Staff in the Staff Report (Staff Report, pages 39 and 40). Staff included the
45
following Burden of Proof comments:
The subject property is not, and has not, been a part of a farm unit that includes other lands not
currently owned by the applicant. The property has no history of farm use and contains soils that
make it unsuitable for farm use and therefore, no basis to inventory the subject property as
agricultural land.
Goal 3 applies a predominant soil type test to determine if a property is "agricultural land." If a
majority of the soils are Class 1-6 in Central or Eastern Oregon, it must be classified "agricultural land."
Case law indicates that the Class 1-6 soil test applies to a subject property proposed for a non-
agricultural plan designation while the farm unit rule looks out beyond the boundaries of the subject
property to consider how the subject property relates to lands in active farming in the area that was
once a part of the area proposed for rezoning. It is not a test which requires that 100% of soils on a
subject property be Class 1-6.
The farm unit rule is written to preserve large farming operations in a block. It does this by preventing
property owners from dividing farmland into smaller properties that, alone, do not meet the definition
of "agricultural land." The subject property is not formerly part of a larger area of land that is or was
used for farming operations and was then divided to isolate poor soils so that land could be removed
from EFU zoning. As demonstrated by the historic use patterns and soils reports, it does not have poor
soils adjacent to or intermingled with good soils within a farm unit. The subject property is not in
farm use and has not been in farm use of any kind. It has no history of commercial farm use and
contains soils that make the property generally unsuitable for farm use as the term is defined by State
law. It is not a part of a farm unit with other land.
The subject property is predominately Class 7 and 8 soils and would not be considered a farm unit
itself nor part of a larger farm unit based on the poor soils and the fact that it has not been used in
conjunction with any adjacent farm properties.
As shown by the soils assessment conducted by Mr. Gallagher, the predominant soil type found on the
subject property is Class 7 and 8, nonagricultural land (669,6). The predominance test says that the
subject property is not agricultural soil and the farm unit rule does not require that the Class 7 and 8
soils that comprise the majority of the subject property be classified as agricultural land due to the
presence of a small amount of Class 6 soils on the subject property that are not employed in farm use
and are not part of a farm unit. As a result, this rule does not require the Class 7 and 8 soils on the
subject property to be classified agricultural land because a minority of the property contains soils
rated Class 6.
The Hearings Officer, based upon the incorporated findings and the Applicant's above -quoted
Burden of Proof statements, that the Subject Property does not include land in capability classes
other than I -IV -I -VI that is adjacent to or intermingled with lands in capability classes I-IV/1-VI within
a farm unit.
(c) "Agricultural Land" does not include land within acknowledged urban growth
boundaries or land within acknowledged exception areas for Goal 3 or 4.
1_r:7
FINDING: The Subject Property is not within an acknowledged urban growth boundary or land
within acknowledged exception areas for Goals 3 or 4.
OAR 660-033-0030, Identifying Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be inventoried as
agricultural land.
(2) When a jurisdiction determines the predominant soil capability classification of a lot
or parcel it need only look to the land within the lot or parcel being inventoried. However,
whether land is "suitable for farm use" requires an inquiry into factors beyond the mere
identification of scientific soil classifications. The factors are listed in the definition of
agricultural land set forth at OAR 660-033-0020(1)(a)(B). This inquiry requires the
consideration of conditions existing outside the lot or parcel being inventoried. Even if a
lot or parcel is not predominantly Class I -IV soils or suitable for farm use, Goal 3
nonetheless defines as agricultural "lands in other classes which are necessary to permit
farm practices to be undertaken on adjacent or nearby lands". A determination that a lot
or parcel is not agricultural land requires findings supported by substantial evidence that
addresses each of the factors set forth in 660-033-0020(1).
FINDING: The Applicant's stated reason for not requesting an exception to Goal 3 is based on the
premise that the Subject Property is not "Agricultural Land" and by extension not part of a "farm
unit." The Hearings Officer incorporates the findings for Deschutes County Comprehensive Plan,
Chapter 2, Resource Management Section 2.2 Agricultural Lands Goal 1, Preserve and Maintain
Agricultural Lands and the Agricultural Industry and also the findings for Oregon Administrative Rules
Division 33- Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands as additional findings
for this section. The soil study produced by Mr. Gallagher focuses on the land within the Subject
Property and the Applicant provided responses indicating the Subject Property is not necessary to
permit farm practices undertaken on adjacent and nearby lands. The Hearings Officer finds that the
Subject Property is not "Agricultural Land" based upon the incorporated findings and that the
Subject Property is not necessary to permit arm practices undertaken on adjacent and/or nearby
lands.
(3) Goal 3 attaches no significance to the ownership of a lot or parcel when determining
whether it is agricultural land. Nearby or adjacent land, regardless of ownership, shall be
examined to the extent that a lot or parcel is either "suitable for farm use" or "necessary
to permit farm practices to be undertaken on adjacent or nearby lands" outside the lot
or parcel.
FINDING: The Applicant's stated reason for not requesting an exception to Goal 3 is based on the
premise that the Subject Property is not "Agricultural Land" and by extension not part of a "farm
unit." The Hearings Officer incorporates the findings for Deschutes County Comprehensive Plan,
Chapter 2, Resource Management Section 2.2 Agricultural Lands Goal 1, Preserve and Maintain
Agricultural Lands and the Agricultural Industry and also the findings for Oregon Administrative Rules
Division 33- Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands as additional findings
for this section. The Hearings Officer attached no significance to the ownership of the Subject
Property or adjacent parcels in considering whether or not the Subject Property was "suitable for
farm use" or "necessary to permit farm practices to be undertaking on adjacent or nearby lands."
(5)(a) More detailed data on soil capability than is contained in the USDA Natural
Resources Conservation Service (NRCS) soil maps and soil surveys may be used to define
agricultural land. However, the more detailed soils data shall be related to the NRCS land
capability classification system.
(b) If a person concludes that more detailed soils information than that contained in the
Web Soil Survey operated by the NRCS as of January 2, 2012, would assist a county to make
a better determination of whether land qualifies as agricultural land, the person must
request that the department arrange for an assessment of
the capability of the land by a professional soil classifier who is chosen by the person,
using the process described in OAR 660-033-0045.
FINDING: The Applicant's stated reason for not requesting an exception to Goal 3 is based on the
premise that the Subject Property is not "Agricultural Land" and by extension not part of a "farm
unit." The Hearings Officer incorporates the findings for Deschutes County Comprehensive Plan,
Chapter 2, Resource Management Section 2.2 Agricultural Lands Goal 1, Preserve and Maintain
Agricultural Lands and the Agricultural Industry and also the findings for Oregon Administrative Rules
Division 33- Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands as additional findings
for this section.
Applicant's Burden of Proof states:
Attached as Exhibit 6 is a more detailed agricultural soil assessment related to the NRCS land
capability classification system conducted by Andy Gallagher, a Certified Professional Soil Scientist
authorized by the Department of Land Conservation and Development (DLCD).
The soils assessment prepared by Mr. Gallagher provides more detailed soils information than
contained on the Web Soil Survey operated by the NRCS, which provides general soils data at a scale
generally too small for detailed land use planning and decision making. Mr. Gallagher's soils
assessment report provides a high intensity Order-1 soil survey and soils assessment - a detailed and
accurate soils assessment on the subject property based on numerous soil samples - to determine if
the subject property is "agricultural land" within the meaning of OAR 660-033-020. Mr. Gallagher')
Order-1 soil survey is included as evidence in the application to assist the County in making a better
determination of whether the subject property qualifies as "agricultural land."
As explained in Mr. Gallagher's report, the NRCS soil map of the subject property shows three soil
mapping units, 27A Clovkamp loamy sand 0 to 3% slopes, 155C Wanoga sandy loam 0 to 15916 slopes,
157C Wanoga-Fremkle-Rock outcrop complex 0 to 15% which is estimated to be 35 percent Wanoga,
30 percent Fremkle and 20 percent Rock Outcrop. The more detailed Order-1 survey conducted by Mr.
Gallagher included 232 samples from combined soil test pits, soil borings and surface observations of
bedrock outcrops. The results of the previous and revised soils mapping units with land capacity class
are provided in the Table 1 below from Mr. Gallagher's report:
TABLE 1...PREVIOUS AND REVISED SOIL MAPPING UNITS
WITH LAND CAPABILITY CLASS.
Q.
Previous
Revised
Map*
Map
tA
+=
Ac
-%-
Ac
-%-
e o
c
-�
W (A
M
(A Z
CL
ra
u U
27A
--
Clovkamp
6
111
40
0
0
155C
__
Wanoga
6
10
4
0
0
sandy loam
Wanoga-
157C
__
Fremkle-
6 (80%)
158
56
0
0
Rock
8 (20%)
outcrop
Gosney-
7 (%)
--
GR
Henkle-
0
0
115
42
Outcrop
8 (%)
Wanoga-
--
WD
Deskamp
6
0
0
96
34
complex
Mined and
--
MF
Filled Area
7
0
0
68
24
Tota 1
279
100
279
100
Based on the findings and analysis of the Order-1 soil survey and soil assessment, Mr. Gallagher made
the following summary and conclusions in determining whether the subject property is agricultural
land.
Soils were remapped in a high intensity (Order-1) soil survey 279.25-acre tract currently zoned
partly SM and partly EFU. Previously this area was mapped as Clovkamp loamy sand in the basin,
Wanoga-Fremkle-Rock outcrop and Wanoga sandyloam were mapped in the surrounding wooded
rangelands and hillsides. These collectively range from Land Capability Class 6 to Class 8 with a
predominance of Class 6 high -value farmland.
In the revised Order-1 soil mapping soils were reclassified and remapped as predominantly Class
7 and 8, based on 232 samples from combined soil test pits, soil borings and surface observations
of bedrock outcrops. Most of the area formerly mapped Clovkamp by NRCS was mined and then
filled and graded so that most of it (68 acres, 24 percent of total parcel) is made -land that is Class
Em
7 based on stoniness and low AWHC remapped as ML. There are 115 acres (42 percent of total
parcel) of shallow and very to extremely stony, very shallow and rock outcrop that are remapped
as GR unit. These two units of Class 7 and 8 land are 183 acres combined. The remaining acres 96
acres (34 percent of total parcel) are remapped as Class 6 and include mostly Deskamp and
Wanoga soils. Based upon the findings of this Order-1 soil survey, the subject parcel is
predominantly, 66 percent (183 acres), Class 7 and 8 soils and therefore is not "agricultural land"
within the meaning of OAR 660033-0020(1)(a)(A).
The soil mapping and on -site studies also show the subject property is not agricultural land within
the meaning of OAR 660-033-0020(1)(b) as it is not adjacent to or intermingled with land in
capability classes 1-6 within a farm unit. There is no clear evidence that the Capability Class 6 non -
irrigated soils on the subject property were farmed or utilized in conjunction with any farming
operation in the past.
With few exceptions the Wanoga soils exist in irregularly shaped pockets interspersed with short
steep slopes, rocky, shallow soils creating severe limitations for any agricultural use either alone
or in conjunction with other lands.
As previously discussed, the State's agricultural land rules, OAR 660-033-0030, allow the county to rely
on the more detailed soil capability analysis prepared by Mr. Gallagher. The applicant has submitted
the soils assessment to DLCD for review of the soils assessment and will submit the certification as a
condition of approval. Based on the Order-1 soils report, the subject property is not "agricultural land."
The Hearings Officer finds that Applicant's professional soil study/analysis provides more detailed
and site specific soils information than contained in the NRCS Web Soil Survey. NRCS sources
provide general soils data for large units of land. The Applicant's soil study/analysis provided
detailed and accurate information about individual parcels based on numerous soil samples taken
from the Subject Property. The Applicant's soil study/analysis is related to the NCRS Land Capability
Classification ("LLC") system that classifies soils class 1 through 8 and provided ratings for each soil
type based on rules provided by the NRCS.
According to the NRCS Web Soil Survey tool, the Subject Property contains a mix of 157C
(GosneyRock Outcrop-Deskamp complex), 27A (Clovkamp loamy sand) 155C (Wanoga sandy loam).
The Hearings Officer finds that the Gallagher soil study meets the requirements of these sections
and allows the Hearings Officer to rely upon the Gallagher soil study conclusions.
(c) This section and OAR 660-033-0045 apply to:
(A) A change to the designation of land planned and zoned for exclusive farm use,
forest use or mixed farm -forest use to a non -resource plan designation and zone on
the basis that such land is not agricultural land; and
FINDING: The Applicant's stated reason for not requesting an exception to Goal 3 is based on the
premise that the Subject Property is not "Agricultural Land" and by extension not part of a "farm
unit." The Hearings Officer incorporates the findings for Deschutes County Comprehensive Plan,
50
Chapter 2, Resource Management Section 2.2 Agricultural Lands Goal 1, Preserve and Maintain
Agricultural Lands and the Agricultural Industry and also the findings for Oregon Administrative Rules
Division 33- Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands as additional findings
for this section.
The Burden of Proof states:
The applicant is seeking approval of a non -resource plan designation and zone on the basis that the
subject property is not agricultural land. The recognition of the nonresource process to rezone lands
which do not qualify as resource lands and therefore do not implicate the protections of the resource
designations under the Statewide Planning Goals is well established under state law and local
Deschutes County code provisions and land use decisions. Attached as Exhibit 16 is the County
Comprehensive Plan Section 5.12 detailing the plan amendment, zone changes under the nonresource
process which have occurred since 2011. In 2016, the County specifically adopted Ordinance 2016-
005, Exhibit 17, which included Policy 2.2.3 recognizing the process and explicitly authorizing
comprehensive plan and zoning map amendments, including nonresource lands, for EFU properties.
The findings included in the Comprehensive Plan text at 3.3 specifically provide that "[a]s of 2010 any
new Rural Residential Exception Areas 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."
The Hearings Officer, based upon the incorporated findings and the Applicant's Burden of Proof
statement above, finds the Subject Property is not "Agricultural Land" as defined and described by
relevant laws.
(d) This section and OAR 660-033-0045 implement ORS 215.211, effective on October 1,
2011. After this date, only those soils assessments certified by the department under
section (9) of this rule may be considered by local governments in land use proceedings
described in subsection (c) of this section. However, a local government may consider
soils assessments that have been completed and submitted prior to October 1, 2011.
FINDING: The Hearings Officer incorporates the findings for Deschutes County Comprehensive Plan,
Chapter 2, Resource Management Section 2.2 Agricultural Lands Goal 1, Preserve and Maintain
Agricultural Lands and the Agricultural Industry and also the findings for Oregon Administrative Rules
Division 33- Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands as additional findings
for this section. The Applicant submitted a soil study dated May 24, 2024. Applicant's soil
study/analysis was submitted to DLCD in conformance with ORS 215.211. Staff received
acknowledgement from Hilary Foote, Farm/Forest Specialist with the DLCD, on October 9, 2024, that
Applicant's soil study/analysis was complete and consistent with DLCD's reporting requirements.
The Hearings Officer finds this criterion to be met based on Applicant's soil study/analysis and that
soil study/analysis was submitted and confirmed by DCLD to be complete and consistent with
relevant laws/rules.
(e) This section and OAR 660-033-0045 authorize a person to obtain additional information
51
for use in the determination of whether land qualifies as agricultural land, but do not
otherwise affect the process by which a county determines whether land qualifies as
agricultural land as defined by Goal 3 and OAR 660-033-0020.
FINDING: The Hearings Officer incorporates the findings for Deschutes County Comprehensive Plan,
Chapter 2, Resource Management Section 2.2 Agricultural Lands Goal 1, Preserve and Maintain
Agricultural Lands and the Agricultural Industry and also the findings for Oregon Administrative Rules
Division 33- Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands as additional findings
for this section. The Applicant has provided a DLCD certified soil study/analysis as well as NRCS soil
data. The Hearings Officer finds the Applicant has demonstrated compliance with this provision.
Division 12, Transportation Planning
OAR 660-012-0060 Plan and Land use Regulation Amendments
(1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land
use regulation (including a zoning map) would significantly affect an existing or planned
transportation facility, then the local government must put in place measures as
provided in section (2) of this rule, unless the amendment is allowed under section (3), (9)
or (10) of this rule. A plan or land use regulation amendment significantly affects a
transportation facility if it would:
(a) Change the functional classification of an existing or planned transportation
facility (exclusive of correction of map errors in an adopted plan);
(b) Change standards implementing a functional classification system; or
(c) Result in any of the effects listed in paragraphs (A) through (C) of this subsection
based on projected conditions measured at the end of the planning period identified
in the adopted TSP. As part of evaluating projected conditions, the amount of traffic
projected to be generated within the area of the amendment may be reduced if the
amendment includes an enforceable, ongoing requirement that would demonstrably
limit traffic generation, including, but not limited to, transportation demand
management. This reduction may diminish or completely eliminate the significant
effect of the amendment.
(A) Types or levels of travel or access that are inconsistent with the functional
classification of an existing or planned transportation facility;
(B) Degrade the performance of an existing or planned transportation facility such
that it would not meet the performance standards identified in the TSP or
comprehensive plan; or
(C) Degrade the performance of an existing or planned transportation facility that
is otherwise projected to not meet the performance standards identified in the TSP
or comprehensive plan.
FINDING: This above language is applicable to the proposal because it involves an amendment
to an acknowledged comprehensive plan. The Applicant provided the following response in the
submitted Burden of Proof:
52
Attached as Exhibit 11 is a transportation impact analysis memorandum dated June 18, 2024
prepared by traffic engineer, Joe Bessman, PE. Mr. Bessman made the following key findings with
regard to the proposed zone change and concluded that a significant affect does not occur with
the proposed rezone:
• Rezoning of the approximately 279-acre "Rose Pit" property from Surface Mining and
Exclusive Farm Use to Rural Residential results in a small increase in the trip generation
potential of the property. A slightly higher difference occurs in consideration of conditionally
allowed uses (such as the use of the density bonus or provision of a future park).
Conservatively, these analysis scenarios were also included within this review.
• The small increase in trips could impact the Rickard Road corridor or the SE 27th
Street/Rickard Road intersection. An operational assessment was prepared to determine
whether these locations operate adequately with the proposed rezone, using each of the
potential trip generation scenarios.
• The assessment shows that even with the inclusion of conditional uses the Rickard Road
segment and SE 27th Street/Rickard Road intersection will continue to operate acceptably. As
the impacted facilities can continue to meet adopted performance standards, a significant
impact does not occur with this rezone.
• Coordination of this rezone application with the City of Bend will be required by the
Transportation Planning Rule.
Based on the traffic analysis and findings by Mr. Bessman, the application complies with the
County transportation code requirements, transportation system plan and the TPR.
The Applicant submitted a traffic study (Exhibit 12) dated June 18, 2024, prepared by Joe Bessman
of Transight Consulting LLC. As noted in the agency comments section above, the County
Transportation Planner, agreed with the report's conclusions. The Hearings Officer, based upon
Applicant's traffic study and analysis, finds that the proposed plan amendment and zone change
will be consistent with the identified function, capacity, and performance standards of the County's
transportation facilities in the area. The Hearings Officer finds, based upon the Applicant's traffic
study and analysis, that the proposed zone change will not change the functional classification of
any existing or planned transportation facility or change the standards implementing a functional
classification system.
The Hearings Officer finds, considering the Applicant's traffic study/analysis, along with the above -
quoted Applicant comments, that approval of the application in this case will not significantly affect
an existing or planned transportation facility. The Hearings Officer finds Applicant's traffic analysis
and findings comply with the County transportation code requirements, transportation system plan
and the TPR.
The proposed plan amendment would change the designation of the Subject Property from AG to
RREA and change the zone from EFU to RR10. The Applicant is not proposing any land use
development of the property at this time.
The Hearings Officer finds, based upon the County Senior Transportation Planner's comments and
53
Applicant's traffic study and analysis from Transight Consulting LLC, the application in this case
complies with the Transportation Planning Rule.
Division 15, Statewide Planning Goals
OAR 660-015 Division 15 Statewide Planning Goals and Guidelines
FINDING: The Statewide Planning Goals and the Applicant's responses from Applicant's Burden of
Proof are outlined below:
Goal 1, Citizen Involvement. Deschutes County will provide notice of the application to the public
through mailed notice to affected property owners and by requiring the applicant to post a proposed
land use action sign" on the subject property. Notice of the public hearings held regarding this
application will be placed in the Bend Bulletin. A minimum of two public hearings will be held to
consider the application.
Goal 2, Land Use Planning. Goals, policies, and processes related to zone change applications are
included in the Deschutes County Comprehensive Plan and Titles 18 and 23 of the Deschutes County
Code. The outcome of the application will be based on findings of fact and conclusions of law related
to the applicable provisions of those laws as required by Goal 2.
Goal .3, Agricultural Lands. The applicant has shown that the subject property is not agricultural
land because it is comprised predominantly of Class 7 and 8 soils that are not suitable for farm use.
Therefore, the proposal is consistent with Goal 3.
Goal 4, Forest Lands. Goal 4 is not applicable because the subject property does not include any
lands that are zoned for, or that support, forest uses. Forest land is defined by OAR 660005-0010 as
lands suitable for commercial forest use protection under Goal 4, which are identified using NCRS soil
survey maps to determine average annual wood fiber production figures. The NCRS maps for the
subject property map it with soil mapping units 27A, 155C and 157 C. The NCRS Soils Survey for the
upper Deschutes River lists all soils mapped by its survey that are suitable for wood crop production
in Table 8 (Exhibit 18). None of the soils mapped on the subject property are listed in Table 8 as
suitable for wood crop production.
Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces. The subject property
does not contain any inventoried Goal 5 resources.
Goal 6, Air, Water, and Land Resources Quality. The approval of this application will not impact
the quality of the air, water, and land resources of the County. Any future development of the property
would be subject to local, state, and federal regulations that protect these resources.
Goal 7, Areas Subject to Natural Disasters and Hazards. According to the Deschutes County DIAL
property information and Interactive Map the entire Deschutes County, including the subject property,
is located in a Wildfire Hazard Area. The subject property is also located in Rural Fire Protection District
#2. Rezoning the property to MUA-10 does not change the Wildfire Hazard Area designation. Any
54
future development of the property would need to demonstrate compliance with any fire protection
regulations and requirements of Deschutes County.
Goal 8, Recreational Needs. This goal is not applicable because no development is proposed and
the property is not planned to meet the recreational needs of Deschutes County. Therefore, the
proposed rezone will not impact the recreational needs of Deschutes County. Goal 9, Economy of the
State. This goal does not apply to this application because the subject property is not designated as
Goal 9 economic development land. In addition, the approval of this application will not adversely
affect economic activities of the state or area.
Goal 10, Housing. The County's comprehensive plan Goal 10 analysis anticipates that farm properties
with poor soils, like the subject property, will be converted from EFU to MUA-10 or RR-10 zoning and
that these lands will helpmeet the need for rural housing. The planned regional park will serve the
surrounding rural community and approval of this application, therefore, is consistent with Goal 10
as implemented by the acknowledged Deschutes County comprehensive plan.
Goal 11, Public Facilities and Services. The approval of this application will have no adverse impact
on the provision of public facilities and services to the subject site.
Goal 12, Transportation. This application complies with the Transportation System Planning Rule,
OAR 660-012-0060, the rule that implements Goal 12. Compliance with that rule also demonstrates
compliance with Goal 12,
Goal 13, Energy Conservation. The approval of this application does not impede energy
conservation. The subject property is located within 1 mile from the city limits of Bend. If the property
is developed with additional residential dwellings in the future, providing homes in this location as
opposed to more remote rural locations will conserve energy needed for residents to travel to work,
shopping and other essential services provided in the City of Bend. If the property is developed with
the regional park, as planned, it will provide recreational opportunities in close proximity to rural and
urban residences, thereby conserving energy and vehicle miles traveled.
Goal 14, Urbanization. This goal is not applicable because the applicant's proposal does not involve
property within an urban growth boundary and does not involve the urbanization of rural land. The
RR-10 zone is an acknowledged rural residential zoning district that limits the intensity and density of
developments to rural levels. The compliance of this zone with Goal 14 was recently acknowledged
when the County amended its comprehensive plan. The plan recognizes the fact that the MUA-10 and
RR zones are the zones that will be applied to lands designated Rural Residential Exception Areas.
Goals 15 through 19. These goals do not apply to land in Central Oregon.
Staff (Staff Report, page 29) generally accepted the Applicant's responses and finds compliance with
the applicable Statewide Planning Goals had been effectively demonstrated. Staff did take note of
public comments concerning potential loss of farmland, increased rural density, and traffic. Staff
stated that these comments detail concerns related to specific potential use patterns.
55
Staff concluded that the overall proposal appears to comply with the applicable Statewide Planning
Goals for the purposes of this review. Further, Staff indicated that issues related to a specific future
development will be addressed at that time. The Hearings Officer concurs with Staffs summary
comments related to statewide goals.
The Hearings Officer takes note that COLW alleged that the application in this case somehow
violates or is not consistent with Goal 14. The Hearings Officer includes COLW's comments related
to Goal 14 (11/12/24, pages 17 and 18) below:
In its Curry County decision, the Oregon Supreme Court established a series of factors used to assess
whether a particular land use change qualifies as urban or rural for purposes of Goal 14 compliance.
1000 Friends of Oregon v. Land Conservation & Development Commission ("Curry County'q, 301 Or
447, 474 (1986); Oregon Shores Conservation Coalition v. Coos County, 55 Or LUBA 545, 550 (2008);
1000 Friends of Oregon v. Josephine County (Marvin I), _ Or LUBA , slip op at 25 (LUBA No. 2021-116,
June 2, 2022). These factors must be considered holistically rather than in isolation from one another.
Oregon Shores, 55 Or LUBA 545, 556. LUBA summarized the Curry factors in Oregon Shores, 55 Or
LUBA at 550: "(a) the size of the area in relationship to the developed use (density), (b) its proximity to
an acknowledged UGB and whether the proposed use is likely to become a magnet attracting people
from outside the rural area, and (c) the types and levels of services which must be provided to it."Here,
under the Curry County factors, the proposed PAPA decision, if approved, would violate Goal 14 by
allowing urban population outside of a UGB and undermining the effectiveness of an established UGB.
a. Density The application proposes to rezone the subject property to allow greatly increased
residential density. Under RR-10 zoning, Deschutes County Code allows either a 10 acre minimum
lot size, or 5-acre equivalent density for planned and cluster developments within one mile of the
UGB:
"Minimum lot size shall be 10 acres, except planned and cluster developments shall be allowed
an equivalent density of one unit per 7.5 acres. Planned and cluster developments within one
mile of an acknowledged urban growth boundary shall be allowed a five -acre minimum lot
size or equivalent density. For parcels separated by new arterial rights of way, an exemption
shall be granted pursuant to DCC 18.120.020. " (DCC 18.60.060(C))
In a planned developments, there is no minimum lot size:
"The minimum lot area, width, frontage and yard requirements otherwise applying to
individual buildings in the zone in which a planned development is proposed do not apply
within a planned development. An equivalent overall density factor may be utilized in lieu of
the appropriate minimum lot area. "(DCC 18.128.210(D)(3))
In this way, should the re -zone be approved, up to 56 rural residences could be conditionally
permitted on the subject property with no consideration of Goal 14. This is an urban level of
density.
56
b. Proximity to UGB and magnet for attracting people The subject property is about one mile
from the City of Bend UGB and will become a magnet for attracting urban population outside the
UGB. The allowed uses in the RR-10 zone will both attract people who would otherwise reside in
the UGB, and attract people who could reside on the subject property into the UGB for urban
services. Both outcomes will undermine the effectiveness of the UGB in violation of Goal 14.
c. Types and levels of services The proposed rezoning is also likely to make the potential
residents of a new neighborhood in the RR-10 zone reliant on urban public services and
infrastructure. The "types and levels of services" that will be provided to the subject property will
nearly all be from urban service providers. Oregon Shores Conservation Coalition v. Coos County,
55 Or LUBA 545, 550 (2008). Future residents will attend urban schools, ride urban public transit,
visit urban libraries, use urban healthcare services, rely on urban public safety services, and
patronize urban commercial services. Just like the first two Curry County factors, this also
frustrates and undermines the effectiveness of the UGB in violation of Goal 14.
The increase in density, proximity to a UGB and potential to undermine the effectiveness of the
UGB, and reliance of urban services all point toward the decision urbanizing rural land in violation
of Goal 14 in the absence of an exception to Goal 14.
Applicant (Final Argument, pages 15 through and including 17) provided the following response to
COLW's Goal 14 arguments:
In section XI of its November 12 letter, COLW argues that the application does not comport with
Statewide Planning Goal 14. However, COLW's analysis is predicated entirely under what are often
referred to as the Curry Countyfactors derived from 1000 Friends of Oregon v. Land Conservation &
Development Commission, 301 Or 447, 474, 724 P02d 268 (1986) ("Curry County').(footnote omitted]
Although helpful when determining if a use is "rural" versus "urban," not ever Goal 14 issue turns on
that nuanced distinction. In this case, COLW's argument ignores that the Curry County factors were
not the dispositive Goal 14 analysis in three similarly -situated cases arising out of Deschutes County,
two of which reached the Court of Appeals. Central Oregon LandWatch v. Deschutes County, _ Or
LUBA_ (LUBA No 2023-0061009, July 28, 2023) (slip op at 80-84), aff'd, 330 Or App 321, 543 P3d 736
(2024) (concerning the RR-10 zone); Central Oregon LandWatch v. Deschutes County, _ Or LUBA_
(LUBA No 2023-008, April 24, 2023) (slip op at 12) (concerning the Rural Industrial zone), Central
Oregon LandWatch v. Deschutes County,_ Or LUBA_ (LUBA No 2022-075, Dec 6, 2022) (slip op at 17-
18), aff'd without opinion, 324 Or App 655 (2023) (concerning the Rural Industrial zone).
In another Deschutes County case, COL raised essentially the.identical Curry County factor density
argument as raised herein to try and compel the County to adopt a Goal 14 exception as a prerequisite
to approving that map amendment / zone change application. See Central Oregon LandWatch V.
Deschutes County, _ Or LUBA (LUBA No 2023-049, February 15, 2024), off'd, 333 Or App 263 (2024)
(concerning the MUA-10 zone). Although mostly decided on preservation grounds, both LUBA and the
Court of Appeals directly addressed and rejected COL Ws undeveloped density argument. Id (slip op at
23, slip op at *2j.
In short, COLW's Goal 14 argument entirely misses the mark because it fails to address that the RR-10
57
zone was acknowledged by DLCD as consistent with Goal 14. In the aforementioned cases, both LUBA
and the Court of Appeals confirmed that such an acknowledgement means in this case that all uses
allowed in the RR-10 zone are "rural," therefore not prompting or requiring any further Goal 14
inquiry. As a party in all of the above -cited matters, it is further notable that COLW is yet again recycling
tired Goal 14 arguments without citing or distinguishing any of the aforementioned cases.
While not conceding that an analysis of Goal 14, Urbanization is required, we provide one below.
The RR-10 zoning district does not authorize urban development that violates Statewide Goal 14. DCCP
Chapter 1, Section 1.3 p. 15 (Definitions) says that RREAs provide opportunities for rural residential
living, not urban living that violates Goal 14. A review of the factors identified by the Supreme Court
in Curry County all confirm that the zoning district does not allow urban development
i. Density
The RR-10 imposes a maximum density of 1 dwelling per 10 acres. The only exception is that a higher
density may be allowed in planned or cluster developments not burdened by the WA overlay zone, but
only if such development complies with the County's conditional use criteria, comprehensive plan and
rules that require the dedication of 65% open space. The large open space areas created by this type
of development create large areas that maintain the rural character of the parent parcel. The
maximum density for properties like the subject property is one house per 7.5 acres. This is not an
urban density. Such a density would never be allowed in any urban residential zoning district other
than a reserve or holding zone. For instance, in the City of Bend, a density of 1.1 dwellings per acre is
the lowest density allowed for an urban residential district. This density is allowed only for areas not
served by sewer. For properties served by sewer, a minimum density of 4.0 dwellings per one acre is
required.
In Curry County, the Supreme Court accepted the concession of 1000 Friends a density of one house
per ten acres is generally "not an urban intensity." COL W argues that the comprehensive plan requires
a 10-acre minimum parcel size. If they are correct, this minimum will apply during a review of any
subdivision on the subject property and assure that development is "not an urban intensity.
Furthermore, in Curry County, 1000 Friends argued that densities greater than one dwelling per three
acres (e.g., one dwelling per one or two acres) are urban.
The density allowed by the RR-10 zone in a planned development is 2.5 times less dense. For a
standard subdivision, the density allowed (1 house per 10 acres) is over 3 times less dense. The density
of the RR-10 zone is not, as claimed by COLW, 8 times greater than the density allowed in the EFU-
zone. Deschutes County's EFU zone allows for non -irrigated land divisions for parcels as small as 40
acres that create two nonfarm parcels (1:20 acres density). It also allows for 2-lot irrigated land
divisions that, in Deschutes County, can occur on parcels less than 30 acres in size (23 acres irrigated,
no minimum lot size for the nonfarm parcel) that result in a density of one house per less than 15
acres.
ii. Lot Size
The RR-10 zoning district requires a minimum lot size of one house per ten acres. An exception to the
minimum lot size is allowed only if 65% of the land being divided is dedicated as open space and a
maximum density of 1 dwelling per 7.5 acres is achieved on the subject property.
The EFU zone that applies to the subject property imposes no minimum lot size for new nonfarm
parcels. DCC 18.16.055. The only exception is that 5-acre minimum is required for non -irrigated land
divisions of properties over 80 acres in size. DCC 18.16.055(C)(2)(o)(4). The EFU zone requires that
other nonfarm uses be on parcels that are "no greater than the minimum size necessary for the use."
Lot size by itself is not determinative of urban vs. rural use, this is particular try given that irrigated
land division may result in lots of only 5-acres. Although not relevant to this Application, OAR 660-004-
0040 contemplates lot sizes as small as two acres in rural residential areas.
iii. Proximity to Urban Growth Boundaries
The County's zoning map shows that the subject Property is less than 1 mile from the City of Bend
UGB. As recognized by COLW, the planned regional park is allowed on EFU lands. The zone change to
allow park development on the former SM lands and unproductive EFU lands will therefore not have
the effect of drawing residents outside of the City for services since those services are allowed without
the change. The magnet effect was an issue of concern to the Oregon Supreme Court in the Curry
County case. LCDC currently strictly limits the size of magnet uses in the EFU zoning district if they are
within 3 miles of an urban growth boundary by OAR 660-033-0130(2) and Table OAR 660-033-0120,
thereby addressing the proximity issue.
iv. Services
Sewer service is prohibited by Goal 11. An increase in the density of development is not allowed if a
public water system is developed to serve the subject Property. The plan is to use septic systems and
well water to serve the park development.
v. Conclusion of Factors
In totality, none of the above factors indicates that the Applicant's rezone request implicates Goal 14.
As discussed at the Hearing, the Property already qualifies for the regional park given the existing
requirements in the Code and state law. Applicant's proposal would increase the flexibility to permit
additional structures in the park, but not to urban levels. Instead, approval of the proposal will enable
the land to remain in a rural state, and to avoid the haphazard land use patterns that could otherwise
result from serial non farm dwelling applications.
This Hearings Officer notes that he has considered essentially the same COLW Goal 14 argument in
prior plan/zone change recommendation cases. (See, for example, Hearings Officer
recommendation for cases 247-22-000436-ZC/247-22-000443-PA/247/23/000651-MA) This
Hearings Officer has consistently found that a Comprehensive Plan change from AG to RREA and a
59
zone change from EFU to RR-10 does not require a Goal 14 exception. The Hearings Officer
appreciates that each case is unique and that in certain instances a contrary decision could result.
The Hearings Officer takes note that LUBA has held that that the RR-10 zone is a "rural zone." (See,
for example, Central Oregon LandWatch v. Deschutes County, LUBA 2023-006 (2023).' Applicant's
perspective is that "COLW's Goal 14 argument entirely misses the mark because it fails to address
that the RR-10 zone was acknowledged by DLCD as consistent with Goal 14."
The Hearings Officer notes that the Comprehensive Plan RREA designation describes rural (not
urban) use of land. The purpose section for the RR-10 zone (DCC 18.60.010) states the following:
The purposes of the Rural Residential Zone are to provide rural residential living environments; to
provide standards for rural land use and development consistent with desired rural character and the
capability of the land and natural resources; to manage the extension of public services; to provide
for public review of nonresidential uses; and to balance the public's interest in the management of
community growth with the protection of individual property rights through review procedures and
standards.
The Hearings Officer finds the Applicant's discussion and analysis quoted above to be persuasive.
The Hearings Officer finds COLW's discussion and analysis quoted above is not persuasive. The
Hearings Officer finds Applicant's discussion and analysis correctly reflect the current status of Goal
14 law and that Applicant appropriately applied such law to this case. The Hearings Officer finds no
Goal 14 exception is required in this case.
' Central Oregon LandWatch v. Deschutes County, LUBA 2023-006 (2023), "The DCCP provides that the RREA comprehensive
plan designation is implemented by the RR-10 and Multiple Use Agriculture (MUA) zones. We have no reason to believe
that DLDC's acknowledgement of the 2015 amendments as consistent with Goal 14 was premised on anything other than
the conclusion that the RREA plan designation facially does not allow urban urban uses of rural land ... We similarly
conclude that the board of commissioners did not err in relying on DLCD's acknowledgment of the 2016 amendments to
conclude that the RR-10 zone facially complies with Goal 14."
132%
111. CONCLUSION AND RECOMMENDATION:
The Hearings Officer finds that the Applicant has met the burden of proof necessary to justify
changing the Plan Designation from Agricultural (AG) and Surface Mining (SM) to Rural Residential
Exception Area (RREA) and Zoning of the Subject Property from Exclusive Farm Use -
Tumalo/Redmond/Bend subzone (EFU-TRB) & Surface Mining (SM) to Rural Residential (RR-10) by
effectively demonstrating compliance with the applicable criteria of DCC Title 18 (The Deschutes
County Zoning Ordinance), the Deschutes County Comprehensive Plan, and applicable sections of
Oregon statutory and regulatory law.
The Hearings Officer recommends approval of the Applicant's proposal.
DESCHUTES COUNTY HEARINGS OFFICER
rV00. /. W W
ml(epw
Gregory J. Frank
Deschutes County Hearings Officer
61
vTES C-
OG�� BOAR® OF
j COMMISSIONERS
MEETING DATE: June 25, 2025
SUBJECT: Second Reading of Ordinance No. 2025-010 - Plan Amendment/ Zone Change
for approximately 279 acres located southeast of the City of Bend and addressed
at 60725 Arnold Market Road
RECOMMENDED MOTIONS:
1. Move approval of second reading of Ordinance No. 2025-010 by title only.
2. Move adoption of Ordinance No. 2025-010.
BACKGROUND AND POLICY IMPLICATIONS:
The Board of County Commissioners will consider a second reading of Ordinance 2025-010
on June 25, 2025 for a request for a Plan Amendment and Zone Change (file nos. 247-24-
000404-PA, 405-ZC) for property totaling approximately 279 acres to the southeast of the
City of Bend and addressed at 60725 Arnold Market Road.
The Board conducted first reading of the ordinance on June 11, 2025
The full record can be accessed at htt�s //www deschutes o/cd/page/247-24-000404-pa-
405 zc bend park and-recreation-district-bprd-comprehensive-plan-amendment.
BUDGET IMPACTS:
None
ATTENDANCE:
Nathaniel Miller, Associate Planner
MEMORANDUM
TO: Deschutes County Board of Commissioners (Board)
FROM: Nathaniel Miller, Associate Planner
DATE: June 25, 2025
SUBJECT: Consideration of Second Reading of Ordinance 2025-010 - A Plan Amendment and
Zone Change (file nos. 247-24-000404-PA, 405-ZC).
The Board of County Commissioners (Board) will consider a second reading of Ordinance 2025-010
on June 25, 2025, for a Plan Amendment and Zone Change (File nos. 247-24-000404-PA, 247-24-
000405-ZC). The property is addressed at 60725 Arnold Market Road, Bend. The subject property is
located southeast of the City of Bend and is approximately 279 acres.
I. BACKGROUND
The applicant and property owners, Bend Park & Recreation District (BPRD), requests approval of a
Comprehensive Plan Amendment to change the designation of the subject property (+/- 279 Acres)
from Agricultural (AG) and Surface Mining (SM) to Rural Residential Exception Area (RREA). The
applicant also requests a corresponding Zone Change to rezone the subject property from Exclusive
Farm Use - Tumalo/ Redmond/ Bend subzone (EFU-TRB) and Surface Mining (SM) to Rural Residential
(RR10). The property is comprised of approximately 105 acres of SM Zone and 174 acres of EFU Zone.
The applicant asks that Deschutes County change the zoning and the plan designations because the
subject property does not qualify as "agricultural land" under Oregon Revised Statutes (ORS) or
Oregon Administrative Rules (OAR) definitions, and there are no active mining operations at the
former surface mine site.
A public hearing was conducted by a Hearings Officer on November 12, 2024. On January 8, 2025, the
Hearings Officer issued a recommendation of approval for the proposed Plan Amendment and Zone
Change. On April 2, 2025, the Board held a public hearing to hear additional testimony on the
applications. The Board established an Open Record Period after the hearing which closed at 4:00pm
on April 23, 2025. On May 28, the Board deliberated to approve the requests, with a unanimous vote
in favor of the subject applications. After Deliberations, the Board moved approval of 1 st Reading of
Ordinance 2025-010 on June 11, 2025.
11. NEXT STEPS
Pending Board approval, the ordinance will take effect 90 days after the decision. Notice will be sent
according to the Deschutes County's Procedure Ordinance, Title 22.
ATTACHMENTS:
1. Draft Ordinance 2025-010 and Exhibits
Exhibit A: Legal Descriptions
Exhibit B: Proposed Plan Amendment Map
Exhibit C: Proposed Zone Change Map
Exhibit D: Comprehensive Plan Section 23.01.010, Introduction
Exhibit E: Comprehensive Plan Section 5.12, Legislative History
Exhibit F: Hearings Officer Recommendation
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