2025-250-Minutes for Meeting June 18,2025 Recorded 8/4/202501 ES COG2�
BOARD OF
COMMISSIONERS
1300 NW Wall Street, Bend, Oregon
(541) 388-6570
9:00 AM
Recorded in Deschutes County CJ2025-250
Steve Dennison, County Clerk
Commissioners' Journal 08/04/2025 4:19:28 PM
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2025-250
BOCC MEETING MINUTES
WEDNESDAY June 18, 2025
Barnes Sawyer Rooms
Live Streamed Video
Present were Commissioners Anthony DeBone, Patti Adair and Phil Chang.
Also present were County Administrator Nick Lelack; Senior Assistant Legal Counsel Kim Riley;
and BOCC Executive Assistant Brenda Fritsvold.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website www.deschutes.org/meetings.
CALL TO ORDER: Chair DeBone called the meeting to order at 9:00 am.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT:
• Carl Shoemaker relayed a story of when lumber mills operated in Bend and held
dramatic logrolling competitions.
CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda.
1. Approval of Document No. 2025-609, a Dedication Deed for County -Owned Land
Containing a Portion of NW Davidson Way
2. Approval of Document No. 2025-615, an amendment to the IGA with Oregon
Health Authority for the funding of Public Health services #180009-20
BOCC MEETING JUNE 18, 2025 PAGE 1 OF 14
3. Approval of Resolution No. 2025-032 authorizing the acquisition of Right of Way
for the construction of road improvements on South Century Drive and
Huntington Road
4. Approval of Order No. 2025-022 changing the name of an existing 1,288-foot-long
existing right-of-way currently named Cardwell Road to Conquest Road
5. Approval of Document No. 2025-586, an Oregon Department of Human Services
grant agreement #185414 for the My Future - My Choice program
6. Approval of Resolution No. 2025-007 adopting a supplemental budget and
adjusting appropriations within the Fiscal Year 2025 Deschutes County budget
The Board convened as the Governing Body for the Sunriver Service District
7. Approval of Resolution No. 2025-029 adopting a supplemental FY2025 budget
for the Sunriver Service District to increase appropriations in the Public Safety
Building Fund and transfer appropriations from the General Fund
The Board reconvened as the Governing Body for Deschutes County
8. Consideration of Board Signature on letter thanking Dan Holland for service on
the Dog Control Board of Supervisors
9. Approval of the minutes of the May 7, 2025 BOCC meeting
10. Approval of the minutes of the June 6, 2025 BOCC Legislative Update meeting
CHANG: Move Board approval of the Consent Agenda as presented
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 3 - 0
ACTION ITEMS:
11. Consideration of a Ground Lease with Mountain View Community
Development for use of +/- 0.25-acres of County -owned property for Safe
Parking at the Public Safety Campus
Kristie Bollinger, Property Manager, introduced Rick Russell, executive director of
Mountain View Community Development (MVCD). Russell reviewed MVCD's
BOCC MEETING JUNE 18, 2025 PAGE 2 OF 14
proposal to lease land at the County's Public Safety Campus for a safe parking
program. He described the outreach done to notify area residents and businesses
of this proposal and said the deadline to apply for State funding for micro -pods,
which would serve as the shelter units, isjune 30tn
Commissioner DeBone noted that a public hearing was not held on this matter.
Commissioner Adair wished that she and Bollinger had gone door to door notifying
businesses and residents of this proposal as they did in Redmond before
proceeding with that safe parking program. Reporting that more than 80 fires
started last year from transients in Bend, she said MVCD does an excellentjob and
performs background checks of program participants. She spoke to the number of
homeless people currently living in the TSSA, said it is unfair to concentrate shelters
in the Larkspur neighborhood and that this is an emergency situation due to all of
the fires, and noted this proposal would also have to be approved by the City of
Bend.
Commissioner DeBone said the proposal utilizes government funding for social
services provided by an organization which will need to secure additional
government funding to continue it. He disagreed that the proposed location was
appropriate for this use.
Commissioner Chang said residents want the County to address unsanctioned
encampments, and safe parking offers a path out of homelessness.
Commissioner Adair added that MVCD has operated a safe parking program in
Redmond for nearly three years, which has worked very well.
CHANG: Move approval of Document No. 2025-582, a Ground Lease with Mountain
View Community Development for use of +/- 0.25-acres of County -owned
property for Safe Parking at the Public Safety Campus with the stipulation
that MVCD will provide the Board with an update on how the program is
working within 90 days
ADAIR: Second
VOTE: ADAI R: Yes
CHANG: Yes
DEBONE: Chair votes no. Motion Carried 2 - 1
The Board convened as the governing body for the Deschutes County Extension and 4H
Service District.
BOCC MEETING JUNE 18, 2025 PAGE 3 OF 14
12. Public Hearing and consideration of Resolution No. 2025-021 adopting the
Deschutes County Extension and 4H Service District FY 2026 Budget
Cam Sparks, Budget & Financial Planning Manager, presented the proposed FY 2026
Budget for the Extension and 4H Service District.
The public hearing was opened at 9:16 am. There being no one who wished to speak, the
public hearing was closed at 9:16 am.
ADAIR: Move approval of Resolution 2025-021 adopting the fiscal year 2025-26
Deschutes County Extension and 4H Service District budget in the sum of
$1,076,000, imposing and categorizing ad valorem property taxes at the tax
rate of $0.0224 per $1,000 of assessed value and appropriating amounts set
forth in the resolution
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 3 - 0
The Board convened as the governing body for the 9-1-1 Service District.
13. Public Hearing and consideration of Resolution No. 2025-022 adopting the
Deschutes County 9-1-1 Service District FY 2026 Budget
Budget & Financial Planning Manager Sparks presented the proposed FY 2026
Budget for the 9-1-1 Service District.
The public hearing was opened at 9:19 am. There being no one who wished to speak, the
public hearing was closed at 9:19 am.
ADAIR: Move approval of Resolution 2025-022 adopting the fiscal year 2025-26
Deschutes County 9-1-1 Service District budget in the sum of $28,825,100,
imposing and categorizing ad valorem property taxes at the tax rate of
$0.3618 per $1,000 of assessed value and appropriating amounts set forth in
the resolution
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 3 - 0
The Board convened as the governing body for the Black Butte Ranch Service District.
BOCC MEETING JUNE 18, 2025 PAGE 4 OF 14
14. Public Hearing and consideration of Resolution No. 2025-023 adopting the
Black Butte Ranch Service District FY 2026 Budget
Budget & Financial Planning Manager Sparks presented the proposed FY 2026
Budget for the B►ack Butte Ranch Service District.
The public hearing was opened at 9:20 am. There being no one who wished to speak, the
public hearing was closed at 9:20 am.
CHANG: Move approval of Resolution 2025-023 adopting the fiscal year 2025-26 Black
Butte Service District budget in the sum of $3,363,860, imposing and
categorizing ad valorem property taxes at the tax rate of $1.0499 per $1,000
of assessed value for operations and $0.7800 per $1,000 of assessed value
for local option tax and appropriating amounts set forth in the resolution
ADAIR: Second
VOTE: ADAI R: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 3 - 0
The Board convened as the governing body for the Countywide Law Enforcement District.
15. Public Hearing and consideration of Resolution No. 2025-024 adopting the
Countywide Law Enforcement District (District #1) FY 2026 Budget
Budget & Financial Planning Manager Sparks presented the proposed FY 2026
Budget for the Countywide Law Enforcement District (District #1).
The public hearing was opened at 9:22 am. There being no one who wished to speak, the
public hearing was closed at 9:22 am.
ADAIR: Move approval of Resolution 2025-024 adopting the fiscal year 2025-26
Countywide Law Enforcement District budget in the sum of $55,439,000
imposing and categorizing ad valorem property taxes at the tax rate of
$1.2500 per $1,000 of assessed value and appropriating amounts set forth in
the resolution.
CHANG: Second
VOTE: ADAIR:
CHANG:
DEBONE:
Yes
Yes
Chair votes yes. Motion Carried 3 - 0
BOCC MEETING JUNE 18, 2025 PAGE 5 OF 14
The Board convened as the governing body for the Rural Law Enforcement District.
16. Public Hearing and consideration of Resolution No. 2025-025 adopting the
Rural Law Enforcement District (District #2) FY 2026 Budget
Budget & Financial Planning Manager Sparks presented the proposed FY 2026
Budget for the Rural Law Enforcement District (District #2).
The public hearing was opened at 9:25 am. There being no one who wished to speak, the
public hearing was closed at 9:25 am.
CHANG: Move approval of Resolution 2025-025 adopting the fiscal year 2025-26 Rural
Law Enforcement District budget in the sum of $22,342,000, imposing and
categorizing ad valorem property taxes at the tax rate of $1.5500 per $1,000
of assessed value and appropriating amounts set forth in the resolution
ADAI R: Second
VOTE: ADAI R: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 3 - 0
The Board convened as the governing body for the Sunriver Service District.
17. Public Hearing and consideration of Resolution No. 2025-026 adopting the
Sunriver Service District FY 2026 Budget
Budget & Financial Planning Manager Sparks presented the proposed FY 2026
Budget for the Sunriver Service District.
The public hearing was opened at 9:26 am. There being no one who wished to speak, the
public hearing was closed at 9:26 am.
ADAIR: Move approval of Resolution 2025-026 adopting the fiscal year 2025-26
Sunriver Service District budget in the sum of $15,369,205, imposing and
categorizing ad valorem property taxes at the tax rate of $3.4500 per $1,000
of assessed value for operations and $0.4700 per $1,000 of assessed value
for local option tax and appropriating amounts set forth in the resolution
CHANG: Second
VOTE: ADAI R:
CHANG:
DEBONE:
Yes
Yes
Chair votes yes. Motion Carried 3 - 0
BOCC MEETING JUNE 18, 2025 PAGE 6 OF 14
18.
The Board reconvened as the governing body for Deschutes County.
Public Hearing and consideration of Resolution No. 2025-020 adopting the
Deschutes County FY 2026 Budget
Budget & Financial Planning Manager Sparks presented the proposed FY 2026
Budget for Deschutes County.
The public hearing was opened at 9:28 am. There being no one who wished to speak, the
public hearing was closed at 9:28 am.
Commissioner Adair referred to Resolution No. 2025-007 which was on today's
consent agenda, noting that this legislation had adjusted appropriations within the
County's Fiscal Year 2025 budget by $2.5 million and increased the total FY 2025
budget by $2,513,359. She suggested that next year, the year-end budget
adjustments be presented for separate consideration and action by the Board
instead of being placed on the consent agenda.
CHANG: Move approval of Resolution 2025-020 adopting the fiscal year 2025-26
Deschutes County budget in the sum of $658,727,347, imposing and
categorizing ad valorem property taxes at the tax rate of $1.2783 per $1,000
of assessed value and appropriating amounts set forth in the resolution
ADAIR: Second
VOTE: ADAI R: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 3 - 0
In response to Commissioner Adair, Sparks agreed to supply information on the
potential impacts of SB 916 on the County —this bill would require that employers
provide up to ten weeks of unemployment payment to striking workers.
19. Public Hearing and consideration of Resolution No. 2025-028, increasing or
transferring appropriations in the ARPA Fund and the Campus Improvement
Fund forFY3025
Budget & Financial Planning Manager Sparks explained the two proposed
adjustments to the ARPA Fund and the Campus Improvement Fund for FY2025.
The public hearing was opened at 9:35 am. There being no one who wished to speak, the
public hearing was closed at 9:35 am.
BOCC MEETING JUNE 18, 2025 PAGE 7 OF 14
CHANG: Move approval of Resoiution No. 2025-028, increasing or transferring
appropriations in the ARPA Fund and the Campus Improvement Fund for
FY2025
ADAIR: Second
VOTE: ADAI R: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 3 - 0
20. Consideration of First and Second Reading and emergency adoption of
Ordinance No. 2025-009: Clear and Objective Housing Text Amendments -
Goal 5 (Title 18)
Tanya Saltzman, Senior Planner, reminded that the Board held a public hearing on
these proposed amendments on May 28th. Two minor changes were made since
the hearing, as follows:
1. Driveway access in Landscape Management Combining Zone: The proposed
language in DCC 18.84.081(F) Design Review Standards - Clear and Objective
was changed to require the consolidation of driveways (the original proposed
language had unintentionally disallowed all driveways); and
2. Language contained in the proposed new section DCC 18.08.050 has been
moved to Title 22, which is a more appropriate location for text which
addresses procedures for land use applications.
CHANG: Move approval of first and second reading of Ordinance No. 2025-009
ADAIR: Second
VOTE: ADAI R: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 3 - 0
Chair DeBone read the title of the ordinance into the record two times.
ADAIR: Move adoption of Ordinance No. 2025-009 by emergency to take effectJuly 1,
2025
CHANG: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 3 - 0
A break was announced at 9:44 am. The meeting resumed at 10:00 am.
BOCC MEETING JUNE 18, 2025 PAGE 8 OF 14
21. Public Hearing: Plan Amendment and Zone Change for approximately 22.5
acres south of Tumalo and west of Highway 20 (Cascades Academy)
Nicole Mardell, Senior Planner, explained the procedures for the public hearing.
The public hearing was opened at 10:04 am.
Nicole Mardell, Senior Planner, presented the proposal from Cascades Academy of
Central Oregon to rezone seven tax lots totaling 22.5 acres from Surface Mine (4.03
acres) and EFU (18.47 acres) to MUA10. Mardell explained that Cascades Academy's
existing campus is located to the south and the school has indicated that it plans to
use the additional property for future expansion of its campus. The Hearings Officer
recommended a conditional denial of the rezone, saying the application failed to
demonstrate compatibility with Goal 5.
Mardell explained that the Landscape Management Combining Zone protects views
towards the property from both Highway 20 and the Deschutes River, saying that
the applicant submitted an ESEE (Environmental, Social, Economic and Energy
analysis) which addresses these protections. Because the Hearings Officer agreed
with the applicant that the property is not agricultural land, no Goal 14 analysis is
required.
Tia Lewis, representing the applicant, provided information on the property, saying
that a separate soil study was conducted for each of the seven tax lots. She
described which part of the property was previously used for surface mining
extraction, noting that in 2001, some parcels were rezoned to Exclusive Farm Use
(EFU).
In response to the question of why the property owner seeks a rezone if schools are
already allowed in the EFU zone, Lewis said EFU zoning allows for a school on non -
high -value farmland only, and only with a conditional use permit. Under the EFU
zone, each application would be subject to the analysis of farm practices, site
analyses of existing farm capability, and other requirements. An application would
also have to comply with state administrative rules, which are subject to change by
agencies at anytime. In addition, the EFU zone requires significant setbacks.
Lewis spoke to the Goal 5 issue, referring to the decision of the Hearings Officer
which found there was insufficient evidence in the application to establish
compliance with Goal 5. Referencing cases where LUBA remanded an LCDC decision
back to the County on this same issue, she said the decision on the Last Ranch land
use application determined that an ESEE is, in fact, not required. She concluded that
the subject property is not adjacent to either the Deschutes River or Highway 20 but
rather is separated from both by distance, topography and vegetation.
BOCC MEETING JUNE 18, 2025 PAGE 9 OF 14
Julie Amberg, representing Cascades Academy, asked that the Board approve the
rezone application as the current EFU zoning is too restrictive and does not reflect
the true character of the land.
Commissioner Chang said rezoning this property as requested would create an
opportunity to either develop it or sell it for the development of very expensive
homes. Saying that such development could generate substantial revenue, he was
concerned that the school has admitted it does not yet have a clear plan for how the
property would be used to expand its campus.
Amberg said the land was purchased for the purpose of benefiting students, and
the Academy has no desire to develop it in any way other than for a school. Adding
that many residential property owners do not want to live in proximity to a school,
she stressed that it is in the best interest of students to protect this land, and
reiterated that Cascades Academy has no interest in selling the property.
Lewis added that the rezone would grant more certainty as to what would be
allowed to be developed on the property.
Heather Heraeus, chair of the Board of Trustees of Cascades Academy, stated her
support for the rezone proposal and requested that the Board approve it.
Terry Fidler introduced himself as the previous owner of the property. Saying that
the land's potential for agricultural use is very limited and that any farm use could
not likely generate enough revenue to pay for the property taxes, he explained why
the property's topography results in it not having much visual impact on the
surrounding area.
Rory Isbell, representing Central Oregon LanclWatch (COLW), explained COLW's
opposition to changing the EFU zoning of this property, which, when irrigated, is
high -value farmland. Saying that only 16% of the privately -owned EFU land in the
County is designated to be high -value, he added that the 2001 rezone of part of the
property from Surface Mining to EFU required full reclamation, which occurred. He
disputed that the ESEE analysis submitted by the applicant serves to protect the
Goal 5 resources as required.
In rebuttal for the applicant, Lewis said the argument that a determination of high
value soils on a property cannot be changed by a different soil analysis has been
raised and lost. Saying that the 2001 rezone decision is a final, unchallenged County
land use decision, she said the school had no control over whether the reclamation
process took place. Adding that the ESEE is an evidentiary document which
establishes that the scenic views in the corridor would not be impacted by MUA10
BOCC MEETING JUNE 18, 2025 PAGE 10 OF 14
development on the property, she suggested that the findings of the Hearings
Officer be adopted along with further findings resulting from today's hearing as
appropriate.
Commissioner Adair asked that the applicant address a letter from DLCD dated June
9th. Lewis stated that would be done in writing if the record is kept open for
additional testimony following today's hearing.
Commissioner Chang asked if the County could approve the rezone contingent on
the property only being used to expand the campus of Cascades Academy and not
for private residences.
Will Groves, Planning Manager, said while prohibiting residential uses in a
residential zone might not be appropriate, the Landscape Management Combining
Zone can be used to restrict certain properties to specific uses.
Lewis said the applicant may not be agreeable to a conditional rezone as that would
subject the property owner to significant risk. She explained why this proposal could
be problematic and said the applicant is not opposed to providing assurances that
the property would only be used for a school.
The public hearing was closed at 11:13 am.
The Board was in consensus to leave the record open for the submittal of additional
written testimony until July 2nd, with a rebuttal allowed from the applicant by July 9th
and the applicant's final argument due on July 16th.
22. Deliberations: Remand of a Thornburgh Destination Resort Modification to
The Final Master Plan to amend the Fish and Wildlife Management Plan
Jacob Ripper, Principal Planner, reviewed that the Board held a public hearing on
May 7th regarding the County's decision on this matter which was remanded back
from LUBA. He then presented each decision point before the Board, as follows:
1. Does the Board find the 2022 Fish and Wildlife Management Plan (FWMP) is
sufficient to satisfy the "no net loss" standard with respect to groundwater
sources for fish habitat mitigation?
Commissioners DeBone and Adair spoke to the transfer of water rights and to the
testimony from multiple credentialed experts who addressed this matter, including
scientists and Senior Judge DeVore.
BOCC MEETING JUNE 18, 2025 PAGE 11 OF 14
Noting that the Oregon Water Resources Department has documented significant
groundwater level declines in this area and denied a major groundwater use permit
for Thornburgh as a result, Commissioner Chang was concerned that not enough
monitoring will be done to determine whether the no net loss standard is met.
A majority of the Board agreed that the 2022 Fish and Wildlife Management Plan
(FWMP) is sufficient to satisfy the "no net loss" standard with respect to
groundwater sources for fish habitat mitigation.
2. Does the updated economic analysis which accounts for the removal of one
golf course from the project address and meet all impacts as required by
Deschutes County Code?
A majority of the Board was in consensus that the updated economic analysis which
accounts for the removal of one golf course from the project addresses and meet all
impacts as required by Deschutes County Code.
Commissioner Adair noted that the project will use one-third less water than
originally proposed.
3. Do the findings and process adequately address the rights granted to the
Confederated Tribes of Warm Springs under the Treaty with the Tribes of
Central Oregon?
Saying he supports upholding the rights granted under the Treaty, Commissioner
DeBone said the applicant has shown that this project will benefit the rivers and the
fish habitat.
Commissioner Chang said the 2022 FWMP does not adequately integrate or
coordinate with all of the other efforts in the basin to protect fish habitat, and also
does not fully consider all of the components of the previous FWMP, including with
respect to the Treaty rights.
Commissioner Adair cited page 34 of LUBA's remand decision which recognized that
the County had considered the Tribe's testimony and weighed that against the
evidence submitted by the applicant.
A majority of the Board was in agreement that the findings and process adequately
address the rights granted to the Confederated Tribes of Warm Springs under the
Treaty with the Tribes of Central Oregon.
4. Did the Board properly apply and communicate participation requirements,
maintaining both transparency and procedural integrity?
BOCC MEETING JUNE 18, 2025 PAGE 12 OF 14
A majority of the Board was in consensus that the Board properly applied and
communicated participation requirements, maintaining both transparency and
procedural integrity.
Commissioner Chang said the Board should have allowed the submission of new
evidence on all issues instead of just to the matter of economic impact.
5. Should the Board accept the rebuttal evidence into the record, or
disregard/exclude it from consideration on remand?
Ripper explained objections to including the rebuttal evidence into the record.
A majority of the Board was in consensus to accept the rebuttal statements as part
of the record.
Ripper stated that staff will return with a draft decision for the Board's consideration
on July 23rd.
OTHER ITEMS:
• Commissioner DeBone commented on a wildfire burning at the north end of the
county. Commissioner Adair said it is now estimated to be up to 3100 acres with
zero containment.
• Commissioner DeBone said he and Commissioner Chang attended the Project
Wildfire barbeque yesterday evening in Sunriver.
Commissioner Chang commented on the good work being done around the County
by Project Wildfire groups and said the County's Wildfire Advisory Council had
recommended that the County institute fuels reduction and defensible space
requirements in some areas.
Commissioner Adair said many people in the community do not take this seriously
enough, and the lack of adequate mitigation of fire hazards is impacting the ability
of some property owners to secure affordable homeowners insurance.
Nick Lelack, County Administrator, reminded that the Board will not meet between
June 30th and July 151", and possibly not either on July 161n
EXECUTIVE SESSION: None
ADJOURN:
Being no further items to come before the Board, the meeting was adjourned at 11:56 am.
BOCC MEETING JUNE 18, 2025 PAGE 13 OF 14
DATED this Day of — D uq 2025 for the Deschutes County Board of Commissioners.
ATTEST:
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?,ECORDING SECRETARY
Af
ANTHONY DEBONE, CHAIR
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PATTI ADAIR, VICE CHAIR
PHIL CHANG, eOMMISSIONER
BOCC MEETING JUNE 18, 2025 PAGE 14 OF 14
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MEETING DATE: June 18, 2025
SUBJECT: Public Hearing: Plan Amendment and Zone Change for approximately 22.5 acres
south of Tumalo and west of Highway 20 (Cascades Academy)
Possible Motions following the Public Hearing:
CONTINUATION
• I move to continue both the oral and written portions of the hearing to [Month, Day,
Year]
CLOSE ORAL, OPEN RECORD PERIOD
• 1 move to close the oral portion of the hearing, leave the written record open for _
days.
• I move to close the oral portion of the hearing, leave the written record open for _
days and schedule deliberations for a date to be determined.
CLOSE HEARING, DELIBERATIONS
• 1 move to close the public hearing and begin deliberations.
• I move to close the public hearing and set a date and time for deliberations on a
date to be determined.
BACKGROUND AND POLICY IMPLICATIONS:
The Board of Commissioners will conduct a public hearing on June 18, 2025, to consider a
request for a Plan Amendment and Zone Change (file nos. 247-25-000392-PA, 393-ZC) for
approximately 22.5 acres located south of the Tumalo Rural Community and west of State
Highway 20.
Record materials are available on the project website: https://bit.ly/CascadesAcademy
BUDGET IMPACTS:
None.
ATTENDANCE:
Nicole Mardell, AICP, Senior Planner
Will Groves, Planning Manager
MEMORANDUM
TO: Board of County Commissioners
FROM: Nicole Mardell, AICP, Senior Planner
DATE: June 11, 2025
SUBJECT: Public Hearing: Cascades Academy Plan Amendment and Zone Change
The Board of County Commissioners ('Board") will convene a Public Hearing on June 18, 2025, to
consider a request for a Comprehensive Plan Amendment and Zone Change (File nos. 247-24-
000392-PA, 393-ZC).
The record is available for inspection at the following link: https://bit.ly/CascadesAcademy
I. BACKGROUND
The subject property is comprised of seven (7) tax lots with a total area of 22.5 acres, including 4.03
acres zoned Surface Mine and 18.47 acres zoned EFU-Tumalo/Redmond/Bend Subzone. Four (4)
taxlots are partially within the Landscape Management Combining Zone associated with State
Highway 20 and the Deschutes River. The EFU properties are also within the Surface Mining Impact
Area Combining Zone associated with Mining Site No. 370. The property is irregular in shape and is
located immediately south of the Tumalo Rural Community and west of State Highway 20. Refer to
Attachment A for location and zoning maps.
Cascades Academy, the applicant and property owners, request a change to 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 -
Tumalo/ Redmond/ Bend subzone (EFU-TRB) & Surface Mining (SM) to Multiple Use Agricultural
(MUA-10). The applicant intends to rezone the property to allow for expansion of the existing school
on an adjacent parcel, although they are not requesting approval for the school or other specific
development as part of this application.
The applicant finds 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. Further, the Applicant argues that no exception
1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
t (541) 388-6575 @cdd@deschutes.org @www.deschutes.org/cd
to Statewide Planning Goal 3, Agricultural Land, is required because the subject property is not
agricultural land.
A soil study, conducted by a certified soil scientist, determined the subject property contains
approximately 68.6% or 16.59 acres of Land Capability Class 7 and 8 nonirrigated soils. According
to the soil study, the subject property is comprised of soils that do not qualify as Agricultural Land'.
The soil study was verified as completed and meeting the requirements of OAR 660-033-0045(6)(a)
by the Department of Land Conservation and Development on May 27, 2025 for four parcels and
June 5, 2025, for the remaining three parcels.
Pertaining to the Surface Mine zoning, tax lots 4200, 4300, and 4400 are inventoried as part of Site
No. 370 in the County's inventory of mineral and aggregate sites only for "storage" uses. The tax lots
were never intended to be mined and do not contain significant mineral or aggregate resources.
II. PUBLIC COMMENTS
Central Oregon Landwatch provided oral and written comments in opposition to the proposal,
which are addressed in the attached Hearings Officer recommendation. No additional comments
have been received following the issuance of the Hearings Officer Recommendation.
All comments and materials are included in the electronic record.
III. HEARINGS OFFICER RECOMMENDATION
The Deschutes County Hearings Officer held a public hearing on November 14, 2024. On February
26, 2025, the Hearings Officer issued a recommendation of denial for the proposed Plan
Amendment and Zone Change, citing a lack of evidence demonstrating compliance with Statewide
Planning Goal 5 pertaining to wetland, scenic road, and scenic water resources associated with the
subject property.
On April 4, 2025, the applicant provided additional application materials, including an
Environmental, Social, Economic, and Energy analysis to address concerns in the Hearings Officer's
recommendation. On June 9, 2025, DLCD staff provided comments to staff regarding the ESEE
analysis which have been uploaded to the record under "Comments & Submittals - Agencies".
IV. BOARD CONSIDERATION
As the property includes lands designated for agricultural use, Deschutes County Code 22.28.030(C)
requires the application to be heard de novo before the Board, regardless of the determination of
the Hearings Officer.
1 The phrase 'agricultural soils' is defined in OAR 660-033-0020.
Page 2 of 3
V. NEXT STEPS
At the conclusion of the public hearing, the BOCC can choose one of the following options:
1. Continue the hearing to a date and time certain;
2. Close the oral portion of the hearing and leave the written record open to a date and time
certain;
3. Close the hearing and commence deliberations; or
4. Close the hearing and schedule deliberations for a date and time to be determined.
Attachment A: Subject Property Maps
Attachment B: Hearing Officer Recommendation
Page 3 of 3
Attachment A Subject Property Maps
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Zoning Map (Overview)
Mailing Date:
Wednesday, February 26, 2025
Attachment B Hearings Officer Recommendation
RECOMMENDATION AND FINDINGS OF
THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS:
HEARING DATE:
HEARING LOCATION:
APPLICANT:
247-24-000392-PA, 393-ZC
November 14, 2025, 1:00 p.m.
Videoconference and
Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
Cascades Academy of Central Oregon
SUBJECT PROPERTY: 64325 O.B. Riley Rd; Assessor map 17-12-06, tax lot 301
• 64345 O.B. Riley Rd; Assessor map 17-12-06, tax lot 300
• 64375 O.B. Riley Rd; Assessor map 17-12-06, tax lot 302
• 64385 O.B. Riley Rd; Assessor map 17-12-0613, tax lot 100
• No address; Assessor map 16-12-31D, tax lot 4200
• No address; Assessor map 16-12-31D, tax lot 4300
• 64411 O.B. Riley Rd; Assessor map 16-12-31 D, tax lot 4400
REQUEST: Applicant requests approval of a Comprehensive Plan Amendment
to change the designation of the Subject Property. If approved, Tax
Lots 4200, 4300, and 4400 would change from the Surface Mine
(SM) designation to Rural Residential Exception Area (RREA), and
Tax Lots 100, 300, 301, and 302 would change from Agriculture
(AG) to Rural Residential Exception Area (RREA). Applicant also
requests a corresponding Zone Change to rezone all Tax Lots on the
Subject Property from either Surface Mining (SM) or Exclusive
Farm Use (EFU) to Multiple Use Agricultural (MUA-10).
HEARINGS OFFICER: Tommy A. Brooks
SUMMARY OF RECOMMENDATION: The Hearings Officer finds that the record is not sufficient to
support the requested Comprehensive Plan Amendment and Zone Change, specifically with respect to the
requirements of Statewide Planning Goal 5. The Hearings Officer therefore recommends the Deschutes
County Board of Commissioners DENY the Application unless the Applicant demonstrates the requested
Comprehensive Plan Amendment and Zone Change are consistent with Statewide Planning Goal 5.
Page I 1
I. STANDARDS AND 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 18.32, Multiple Use Agricultural (MUA-10)
Chapter 18.52, Surface Mining (SM)
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
II. BACKGROUND AND PROCEDURAL FINDINGS
A. Nature of Proceeding
The Subject Property consists of seven Tax Lots. Tax Lots 4200, 4300, and 4400 currently carry the
Surface Mine (SM) Comprehensive Plan designation and are zoned Surface Mining (SM). Tax Lots 100,
300, 301, and 302 currently carry the Agriculture (AG) Comprehensive Plan designation and are zoned
Exclusive Farm Use-Tumalo/Redmond/Bend subzone (EFU). This matter comes before the Hearings
Officer as a request for approval of a Comprehensive Plan Map Amendment ("Plan Amendment") to
change the designation of the Subject Property from Surface Mining (SM) and Agriculture (AG) to Rural
Residential Exception Area (RREA). The Applicant also requests approval of a corresponding Zoning
Map Amendment ("Zone Change") to change the zoning of the Subject Property to Multiple Use
Agricultural (MUA-10).
The primary bases of the request in the Application are the Applicants' assertions that: (1) the Subject
Property does not contain a significant Goal 5 resource; (2) the Subject Property is not part of the
Page 12
remaining surface mining operation; and (3) the Subject Property does not qualify as "agricultural land"
under the applicable provisions of the Oregon Revised Statutes or Oregon Administrative Rules governing
agricultural land. Based on those assertions, the Applicant is not seeking an exception to Statewide
Planning Goal ("Goal") 3 for the Plan Amendment or Zone Change. Although the Applicant intends to
use the Subject Property for the expansion of an existing school on an adjacent parcel, the Applicant is
not requesting the approval of the school or of any other specific development as part of the Application.
B. Notices and Hearing
The Application is dated June 24, 2024. On July 16, 2024, the County issued a Notice of Application to
several public agencies and to property owners in the vicinity of the Subject Property (together,
"Application Notice"). The Application Notice invited comments on the Application. The County also
provided notice of the Plan Amendment to the Department of Land Conservation and Development
("DLCD") on September 27, 2024.
The County mailed a Notice of Public Hearing on September 30, 2024 ("Hearing Notice") announcing an
evidentiary hearing ("Hearing") for the requests in the Application. Pursuant to the Hearing Notice, I
presided over the Hearing as the Hearings Officer on November 14, 2024, opening the Hearing at 1:00
p.m. The Hearing was held via videoconference, with Staff, representatives of the Applicant, and other
participants in the hearing room. The Hearings Officer appeared remotely. The Hearing concluded at 2:06
p.m.
At the beginning of the Hearing, I provided an overview of the quasi-judicial process and instructed
participants to direct comments to the approval criteria and standards, and to raise any issues a participant
wanted to preserve for appeal if necessary. I stated I had no ex parte contacts to disclose or bias to declare.
I asked for but received no objections to the County's jurisdiction over the matter or to my participation
as the Hearings Officer.
Prior to the conclusion of the Hearing, the Applicant requested and agreed to leaving the written record
open to take additional evidence. At the conclusion of the Hearing, I announced that the written record
would remain open: (1) until December 5, 2024, for any participant to provide additional evidence ("Open
Record Period"); (2) until December 19, 2024, for any participant to provide rebuttal evidence to evidence
submitted during the Open Record Period; and (3) until January 2, 2025, for the Applicant only to provide
a final legal argument, without additional evidence.
C. Review Period
Because the Application includes the request for the Plan Amendment, the 150-day review period set forth
in ORS 215.427(l) is not applicable.' The Staff Report also notes that the 150-day review period is not
applicable by virtue of Deschutes County Code ("DCC" or "Code") 22.20.040(D). No participant in the
proceeding disputed that conclusion.
ORS 215.427(7).
Page 13
III. SUBSTANTIVE FINDINGS AND CONCLUSIONS
A. Staff Report
Prior to the Hearing, on November 4, 2024, the Deschutes County Planning Division ("Staff') issued a
report setting forth the applicable criteria and presenting the evidence in the record at that time ("Staff
Report").
The Staff Report concludes that the Applicant has met the burden of proof necessary to justify the Plan
Amendment and Zone Change, and it makes several findings with respect to the approval standards.
Because some of the information, analysis, and findings provided in the Staff Report are not refuted,
portions of the findings below refer to the Staff Report and, in some cases, adopt sections of the Staff
Report as my findings. In the event of a conflict between the findings in this Decision and the Staff Report,
the findings in this Decision control.
B. Code Plan and Statewide Planning Goal Findings
The legal criteria applicable to the requested Plan Amendment and Zone Change were set forth in the
Application Notice and appear in the Staff Report. This Recommendation addresses each of those criteria,
as set forth below, in addition to other issues raised by the participants.
1. Title 18 of the Deschutes County Code, County Zoning
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.
The Applicant is the owner of the Subject Property and submitted the Application and the necessary
Application form. The Applicant has requested a quasi-judicial Plan Amendment and filed the Application
for that purpose, together with the request for the Zone Change. It is therefore appropriate to review the
Application using 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.
According to the Applicant and the Staff Report, the County's application of this Code provision does not
necessarily involve the direct application of the Plan's introductory statements and goals as approval
Page 14
criteria. Rather, consistency with the Plan can be determined by assessing whether the proposal is
consistent with specific Plan goals and policies that may be applicable to the proposal.
The Applicant identified multiple Plan goals and policies it believes are relevant to the Application.2
Among those goals and policies are those set forth in: (1) Section 2.2 of Chapter 2, relating to Agricultural
Land Policies; (2) Section 2.4 of Chapter 2, relating to Goal 5; (3) Section 2.10 of Chapter 2, relating to
surface mining; (4) Section 2.7 of Chapter 2, relating to Open Spaces, Scenic Views and Sites; (5) Section
3.2 of Chapter 3, relating to Rual Development; (6) Section 3.3 of Chapter 3, relating to rural housing;
and (7) Section 3.7 of Chapter 3, relating to transportation. The Application explains how the Plan
Amendment and Zone Change is consistent with these goals and policies.
No participant asserts that the Application does not comply with DCC 18.136.020(A), disputes the
Applicant's characterization of the Plan's goals and policies presented in the Application, or identifies
other Plan goals and policies requiring consideration. Central Oregon LandWatch ("COLW") does raise
issues related to some of these policies — e.g., whether the Subject Property constitutes agricultural land
and the Applicant's compliance with transportation rules — but does so in the context of whether the
Application satisfies various state administrative rules, and COLW does not go as far to say that the
Application is inconsistent with these Comprehensive Plan policies. COLW's specific arguments are
addressed below in separate findings responding to the specific issues COLW raises.
Based on the foregoing, I find that this Code provision is satisfied.
B. That the change in classification for the subject property is consistent with the purpose and
intent of the proposed zone classification.
The purpose of the MUA-10 zoning district is stated in DCC 18.32.010 as follows:
The purposes of the Multiple Use Agricultural Zone are to preserve the
rural character of various areas of the County while permitting development
consistent with that character and with the capacity of the natural resources
of the area; to preserve and maintain agricultural lands not suited to full-
time commercial farming for diversified or part-time agricultural uses; to
conserve forest lands for forest uses; to conserve open spaces and protect
natural and scenic resources; to maintain and improve the quality of the
air, water and land resources of the County; to establish standards and
procedures for the use of those lands designated unsuitable for intense
development by the Comprehensive Plan, and to provide for an orderly
and efficient transition from rural to urban land use.
The Applicant's Burden of Proof asserts that "[a]pproval of the application is consistent with the purpose
of the MUA-10 zoning district," and quotes the purpose set forth above. The Applicant supports that
assertion by stating that the Subject Property is not suited to full-time commercial farming, and that the
2 See page 8-16 of the Applicant's Burden of Proof Statement submitted with the Application
("Application Narrative").
Page 15
zone change will allow the expansion of a school, which the Applicant asserts is a low -density
development that conserves open spaces and protects natural and scenic resources. The Staff Report
repeats the Applicant's assertions and agrees that the requested Zone Change is consistent with the purpose
of the proposed zoning.
COLW disputes the Applicant's assertion that the Subject Property is not suitable for farming, but it does
not dispute the Applicant's other assertions that the requested zone change is consistent with the purpose
of the zone. Nor does COLW assert that this Code provision is not satisfied. Although COLW argues that
the zone change is not "necessary" to allow the contemplated school expansion (because some schools are
allowed on EFU land), that argument does not describe why the requested zone change would be
inconsistent with the purpose of the MUA-10 designation. Nor does this Code provision require a showing
that the Zone Change is "necessary." COLW's arguments relating to the suitability of the Subject Property
for farming are addressed in other findings below.
Based on the foregoing, and in the absence of persuasive countervailing evidence or argument, I find that
the requested zone change is consistent with the purpose of the MUA-10 zone and this Code provision is
satisfied.
C. That changing the zoning will presently serve the public health, safety and welfare
considering the following factors:
The availability and efficiency of providing necessary public services and facilities.
As noted in the Staff Report, this criterion specifically asks if the Zone Change will presently serve public
health, safety, and welfare. The Applicant provided the following as support for why this criterion is met:
as Necessary public facilities and services are available to serve the Subject Property, including
electric power and water
• Transportation access to the Subject Property is available, and the impact of increased traffic on
the transportation system is non-existent and, to the contrary, the planned rezone results in a
reduction in potential trips generated from the Subject Property
• The Subject Property receives police services from the Deschutes County Sheriff and fire service
from Rural Fire Protection District # 2
• There are no known deficiencies in public services or facilities that would negatively impact public
health, safety, or welfare
The Staff Report confirms that, prior to development of the Subject Property, the Applicant would be
required to comply with the applicable requirements of the Code, at which time additional assurances of
adequate public services and facilities will also be verified.
No participant in this proceeding disputed the Applicant's or Staff s characterization of this Code
provision or the Applicant's evidence presented to show compliance with this Code provision.
Page 16
Based on the foregoing, I find that services are currently available and sufficient for the Subject Property,
and that they can remain available and sufficient if the Subject Property is developed under the MUA-10
zone. I therefore find this Code provision is satisfied.
2. The impacts on surrounding land use will be consistent with the specific goals and
policies contained within the Comprehensive Plan.
The Applicant asserts the following:
The MUA-10 zoning is consistent with the specific goals and policies in the
comprehensive plan discussed above. The MUA-10 zoning allows rural
uses consistent with the uses of many other properties in the area of the
subject property.
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.
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. Kitzrow, 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.
The Staff Report agrees that the Applicant has demonstrated the impacts on surrounding land use will be
consistent with the specific goals and policies contained within the Plan. COLW disputes the Applicant's
assertion that the Subject Property is not suitable for agriculture, or that it is predominantly composed of
Class 7 and Class 8 soils, but COLW does not assert that any potential impacts are inconsistent with Plan
goals and policies. Nor does COLW dispute the Applicant's characterization of the applicable goals and
policies. COLW's arguments relating to farming suitability and soil classifications are addressed below.
Based on the foregoing, and in the absence of persuasive countervailing evidence or argument, I find that
this Code provision is satisfied.
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.
The Applicant's Burden of Proof addresses this Code provision, in part, with an explanation that purports
to describe a mistake in the zoning of the property. However, that explanation simply describes the history
Page 17
of EFU zoning in the state and the fact that resource zoning was originally applied "using a broad brush."
But this portion of the Burden of Proof also acknowledges that "[t]he EFU zoning designation was likely
based on the best soils data that was available to the County at the time it was originally zoned." I find
that the Applicant has not established that an actual mistake was made when the property was zoned EFU.
According to the Applicant, a change in circumstances exists since the Subject Property was originally
zoned for agriculture in the 1970's, including: (1) the collection of new soils data showing the property
does not have agricultural soils; (2) the transfer of the property from the owner of mining Site No. 370;
(3) market changes reducing the viability of commercial farming both on the Subject Property and in the
area in general; and (4) encroaching development. The Staff Report agrees with the Applicant's findings
regarding the existence of a change in circumstances.
COLW submitted comments asserting that the Application does not satisfy CDC DCC 18.136.020(D), but
those comments simply state that the property was rezoned to EFU in 2001 and "there has neither been a
change in circumstances since that decision, nor was any mistake made in that decision." COLW repeated
that conclusion in oral comments during the Hearing. COLW does not attempt to explain the portion of
its comments relating to an absence of changed circumstance, nor does it attempt to refute the evidence
provided by the Applicant that circumstances have indeed changed. COLW's argument in this regard is
therefore not developed enough for me to respond to, and lacks supporting evidence that allows me to
infer the basis on which is makes its claim.
Based on the Applicant's evidence, and in the absence of evidence or a developed argument challenging
the Applicant's evidence, I find that this Code provision is satisfied.
Section 18.52, Sur ace 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.
This Code provision contemplates that a property with the SM zoning designation may be rezoned under
certain circumstances. Specifically, property can be rezoned once the "surface mining site" has been fully
or partially mined, no longer has a significant resource, and has been reclaimed in accordance with
applicable reclamation plans and Code provisions. The Code also contemplates that a post -mining
"subsequent use zone" will be identified and that, through the rezoning process, that subsequent use zone
will apply to the property.
The Applicant asserts that this criterion is not applicable. Currently, only tax lots 4200, 4300, and 4400 of
the Subject Property retain the SM zoning designation. The Applicant notes that those parcels, which are
part of Site No. 370, were included in the County's inventory of mineral and aggregate sites only for
"storage" uses. According to the Applicant, it was never intended that these tax lots would be mined, no
Page 18
minerals were ever extracted from these tax lots, no Department of Geology and Mineral Industries
("DOGAMI") or County reclamation plan applies to these tax lots, and the soils reports confirms that
there is no significant resource on these tax lots. The Staff Report agrees with the Applicant's analysis.
COLW asserts that the Application does not satisfy DCC 18.52.200, but only as it relates to tax lots 300,
301, and 302, which is discussed in more detail below. COLW does not dispute the Applicant's assertion
that DCC 18.52.200 is not applicable to tax lots 4200, 4300, and 4400.
I agree with the Applicant that DCC 18.52.200 is not applicable in this context. Looking at the language
in that Code provision, it applies to a "surface mining site" that was identified as having a significant
resource and that is capable of being mined (wholly or partially) and later reclaimed. The inventory of
mineral and aggregate sites included in the record shows that Site No. 370 is not such a site, as evidenced
by the fact that it is listed as a "storage" site rather than as a mining type (e.g. sand and gravel or pumice)
and the fact that no quantity of mineral is listed for that site. The absence of any intended mining is further
evidenced by the fact that no reclamation plan applies to these tax lots.
As just noted, COLW asserts that the Application nevertheless violates DCC 18.52.200 with respect to
tax lots 300, 301, and 302. Those tax lots previously carried the SM zoning designation, but have been
zoned EFU since 2001 when the County adopted Ordinance No. 2001-027 (the "2001 Rezoning
Decision"). The 2001 Rezoning Designation applied DCC 18.52.200 to these three tax lots, which were
part of mining Site No. 304. According to COLW, DCC 18.52.200 states that when the County removes
the SM zone from a surface mining site, "the property shall be rezoned to the subsequent use zone
identified in the surface mining element of the Comprehensive Plan." As a result of that language,
according to COLW, once that subsequent use zone is in place, it cannot be changed again. Specifically,
COLW states that "[a]pproving the current application would violate DCC 18.52.200 by rezoning the
subject property to a different zone than the zone identified in the County's comprehensive plan."
I disagree with COLW's argument for multiple reasons. First, DCC 18.52.200 applies to properties that
are zoned SM. Tax lots 300, 301, and 302, however, are zoned EFU. Nothing in the language of this Code
provision states or implies that it can or should be applied to properties in zones other than the SM zone.
This Code provision therefore does not apply to these three tax lots. Second, this Code provision is silent
with respect to subsequent applications for rezoning property. The language simply states that, once a site
no longer has a significant resource it can be rezoned and, if it is rezoned, the County must apply the
identified subsequent use zone. The 2001 Rezoning Decision did just that — by rezoning these three tax
lots to the EFU zone. If the Code were intended to prohibit a future property owner from rezoning the
property again, one would expect to find such a limitation in the Code language, but no such limitation
exists. Third, the 2001 Rezoning Decision itself is silent on this matter. It contains no conditions of
approval or other limiting language preventing the property owner from seeking to rezone the property in
the future. Finally, this Code provision must be read in context with other language in the Code. DCC
18.136.020 establishes the criteria for rezoning property. Those criteria contain no exceptions for
properties that were already rezoned pursuant to DCC 18.52.200.
Based on the foregoing, I find that a Plan Amendment and Zone Change is available to the Applicant as
long as all other criteria are satisfied, and that DCC 18.52.200 is not applicable to any of the tax lots
comprising the Subject Property under these circumstances.
Page 19
B. Concurrent with such rezoning, anv 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.
As proposed by the Applicant, the Surface Mining Impact Area (SMIA) combining zone associated with
the Subject Property and the remaining properties within Site No. 370 would remain in place. No
participant objects to that portion of the Applicant's proposal. Based on the foregoing, I find that this Code
provision will be implemented if the Application is approved as part of the final action by the County's
Board of Commissioners ("Board").
2. DCC 22.20.015(A)(2)
COLW asserts that the Application cannot be approved because the Applicant is in violation of a condition
of approval applicable to portions of the Subject Property. DCC 22.20.015(A)(2) provides that the County
cannot make a land use decision for a property if the "property is in violation of applicable land use
regulations, and/or the conditions of approval of any previous land use decisions or building permits
previously issued by the County."
According to COLW, prior County decision SP-93-59 approved a site plan for surface mining and
reclamation on tax lots 300, 301, and 302. As part of that decision, the County imposed certain reclamation
requirements, including the reclamation plan associated with a DOGAMI permit, and incorporated those
into the conditions of approval for that decision. COLW asserts that the conditions of the Subject Property
as described in the Applicant's Soil Report demonstrates that these reclamation requirements are unmet
and, therefore, in violation of the conditions of approval in the County's prior decision. COLW further
asserts that, until the site reclamation is complete, the County cannot make any land use decisions
concerning the Subject Property.
The Applicant responds that the County has previously determined that the reclamation requirements from
the SP-92-59 decision have been completed. According to the Applicant, the 2001 Rezoning Decision
discussed above conclusively establishes that the conditions of SP-92-59, the DOGAMI reclamation plan,
and a related development agreement containing the same requirements were met, which is what justified
the rezoning of tax lots 300, 301, and 302 back to the EFU zone. The Applicant asserts that COLW's
arguments constitute an impermissible "collateral attack" on the 2001 Rezoning Decision.
I find that this issue can be resolved without the need to determine whether COLW's arguments amount
to a collateral attack of the County's prior decision for three distinct and independent reasons. First, the
restriction set forth in DCC 22.20.015(A) applies only where there has been a "violation" of a condition
of approval. DCC 22.20.015(C) defines a "violation" as existing when "the property has been determined
to not be in compliance either through a prior decision by the County or other tribunal, or through the
review process of the current application, or through an acknowledgement by the alleged violator in a
signed voluntary compliance agreement." Here, not only has a violation not been determined to exist, the
only prior adjudication of the issue came to the opposite conclusion and determined no violation existed.
Page 1 10
Second, the evidence in the record is that the County and DOGAMI each determined that the reclamation
activities that occurred were satisfactory. Those determinations were made in 2001 and were closer in
time to when the reclamation activities occurred. The result of the reclamation as it exists today may not
be what COLW would expect them to be, but the entities reviewing the results at the time provide better
evidence of whether and how the reclamation activities were implemented.
Finally, I disagree with COLW that the reclamation conditions it points to are ongoing obligations of the
property owner. Those conditions were imposed as part of the review of a site plan allowing surface
mining activities. With the approval of the 2001 Rezoning Decision, the property was rezoned and the
surface mining use was no longer allowed on the property. The conditions of approval relating to surface
mining therefore no longer had any purpose. Absent any condition of approval in the 2001 Rezoning
Decision that kept those conditions alive, there is simply no basis to apply a condition of approval where
there is no longer an approved use to be conditioned.
Based on the foregoing, I find that DCC 22.20.015(A)(2) does not prevent the Applicant from seeking the
Plan Amendment or Zone Change, and that the County is not precluded from approving the Application
on that basis.
3. Deschutes County Comprehensive Plan Goals and Policies
As previously noted, the Applicant and Staff Report both identify several Plan goals and policies
potentially relevant to this Application. Staff s discussion of those goals and policies appears on pages 14
through 23 of the Staff Report. No participant in this proceeding identified other applicable goals and
policies, or otherwise asserted that the proposal is inconsistent with the plans and policies the Applicant
and Staff identified. I therefore adopt the findings in the Staff Report as my findings relating to the Plan
goals and policies. The issues raised by COLW that are related to the County's Plan goals and policies,
but which specifically address various state administrative rules, are addressed in later findings.
4. Oregon Administrative Rules
The participants to this proceeding have identified several state administrative rules that may be directly
applicable to the Applicant's proposal. The findings in this section address each of those rules.
a. OAR 660-023-0180
The Applicant and the Staff Report identify multiple provisions in OAR 660-023-0180 as being applicable
to the Application. In summary, those provisions provide a process by which a County should amend an
acknowledged inventory or plan with regard to mineral and aggregate resources, including a process for
determining the significance of a resource, whether for the purpose of listing a new resource or de -listing
an existing resource. Only the Applicant and the Staff Report address this administrative rule, and no other
participant asserts that the Application does not satisfy the provisions in OAR 660-023-0180. I therefore
adopt the findings on pages 23-26 of the Staff Report addressing this administrative rule as my findings.
Page 111
b. OAR 660-006-0005
The Applicant addresses OAR 660-006-0005 to demonstrate that the Subject Property does not qualify as
"forest lands" and, therefore, that Goal 4 is not applicable to the request in the Application. The Staff
Report indicates that it agrees with the Applicant's analysis, and no other participant objects to the
Applicant's conclusion that the Subject Property does not qualify as "forest lands". For the reasons stated
in the Application and the Staff Report, I agree that the Subject Property does not qualify as "forest lands"
and, therefore, that Goal 4 does not apply.
c. Goal 3 Administrative Rules
A major issue in this proceeding is whether the Subject Property qualifies as "agricultural land" under
Goal 3 and its implementing rules. The Applicant seeks to establish that the Subject Property is not
agricultural land. In support of its position, the Applicant submitted to the record an Order 1 Soil Survey
("Soil Study") prepared by a certified professional soil scientist, Gary A. Kitzrow of Growing Soils
Environmental Associates (GSEA). The Staff Report agrees with the Applicant's position and the findings
in the Soil Study, concluding that the Subject Property consists predominantly of Class VII and VIII soils
and, therefore, does not constitute agricultural lands. COLW, on the other hand, asserts that the Subject
Property is not only agricultural land, but that it is high value farmland that must be zoned EFU, and that
the EFU designation cannot be changed without first taking an exception to Goal 3.
As a starting point, COLW argues that the Applicant cannot rely on ORS 215.211 and the Soil Study to
change the zoning designation of the Subject Property because the property qualifies as high value
farmland using U.S. Natural Resources Conservation Service ("NRCS") classifications. COLW's
argument is rooted in OAR 660-033-0030(8), which COLW believes requires that the NRCS must be used
for the approval of certain land use applications on high -value farmland and that additional soil
information cannot be used. According to COLW, OAR 660-033-0090 and OAR 660-033-0120, which
are referenced in OAR 660-033-0030(8), mean, together, that "[w]hen the NRCS soil classes and rating
show that a property is high -value farmland, the only uses allowed on that land are those specified in OAR
660-033-0120, and counties must apply EFU zoning to such lands."
COLW's argument in this regard does not reflect the actual language of the rules. First, OAR 660-033-
0090 states that the EFU zone must apply to "agricultural lands", which may be high -value farmland or
not high -value farmland. Once it is determined that land is agricultural land, and that it is high -value
farmland, that rule states that only those uses authorized on high -value farmland under OAR 660-033-
0120 are allowed. But the current application is not concerned with allowing a particular use, so the
provisions of OAR 660-033-0090 and OAR 660-033-0120 are not at issue. Those provisions would be
triggered only if the Subject Property were first deemed to be agricultural land and then a specific use
were proposed. Here, the task is to determine if the Subject Property is agricultural land at all. If it is, then
the rule provisions COLW relies on may be applicable. If it is not, then the Subject Property will not be
agricultural land at all, whether high -value farmland or something else, and those provisions would not
apply.
Page 112
OAR 660-033-0020(1)(a)(A)
COLW alternatively argues that the Subject Property qualifies as agricultural land under the definitions
set forth in OAR 660-033-0020(1)(a), the first of which, in subsection (A), relies on the NRCS
classifications. Under that definition, "agricultural lands" includes "Lands classified by the U.S. Natural
Resources Conservation Service (MRCS) as predominantly Class I -IV soils in Western Oregon and I -VI
soils in Eastern Oregon." The Subject Property could qualify as "agricultural lands" under that definition
because the applicable NRCS soil classifications include large amounts of Class III soils (when irrigated).
However, the Applicant relies on ORS 215.211, which it asserts grants a property owner the right to rely
on more detailed information in lieu of the NRCS classifications. The Applicant uses the Soil Study for
that purpose, and the Soil Study concludes that the soils on the Subject Property are predominantly Class
VII and VIII soils.
As the Land Use Board of Appeals ("LUBA") has explained, "ORS 215.211 allows a site -specific analysis
of soils where a person believes that such information would, compared to the information provided by
the NRCS, assist a county in determining whether land is agricultural land."3 In that case, the applicant
sought to change a property's Plan designation from AG to Rural Industrial (RI). The applicant in that
case also relied on a site -specific Order 1 soil survey prepared by a qualified soil scientist. LUBA upheld
the County's reliance on that soil survey as part of its determination that the property at issue in that case
consisted predominantly of Class VII and Class VIII soils unsuitable for farming.
Based on the language in ORS 215.211 and LUBA's acknowledgment of that statute, I find that the County
is not precluded from considering the Order 1 soil survey when applying OAR 660-033-0020(1)(a)(A), as
long as doing so is consistent with OAR 660-033-0030(5), which implements ORS 215.211. COLW does
not dispute that the survey complies with OAR 660-033-0030(5). The Staff Report, however, notes that
the Applicant has not provided confirmation of the Soil Study from DLCD, a requirement of OAR 660-
033-0030(5)(b) by virtue of its cross reference to OAR 660-033-0045. The Applicant and Staff suggest a
condition of approval requiring a response from DLCD prior to the Plan Amendment and Zone Change
becoming final. No other participant objected to that approach. Because this Decision does not recommend
approval of the Plan Amendment and Zone Change, it does not include any suggested conditions.
However, if the Board subsequently approves the Application, and if the Applicant still has not provide
documentation from DLCD, such a condition seems warranted and necessary.
Based on the foregoing, and considering the more detailed evidence provided by the Applicant's soil
scientist against the NRCS designation of the Subject Property, I find that that the Subject Property does
not qualify as agricultural land under Goal 3 as defined in OAR 660-033-0020(1)(a)(A), but that the
Applicant has not complied with all procedural aspects of OAR 660-033-0030(5) and must do so before
the Plan Amendment and Zone Change are approved. That does not end the inquiry, however, as COLW
also argues that the Subject Property qualifies as agricultural land under the other sections of OAR 660-
033-0020(1)(a).
3 Central Oregon Land Watch v. Deschutes County, _ Or LUBA _ (LUBA No. 2023-008, April 24,
2023) ("LUBA No. 2023-008").
Page 113
COLW next argues that the Subject Property is "agricultural land" as defined in OAR 660-033-
0020(1)(a)(B). That rules states that land qualifies as agricultural land if it is "suitable for farm use as
defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic
conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns;
technological and energy inputs required; and accepted farming practices."
COLW addresses each of the subsection (B) factors, concluding that the Subject Property is suitable for
farm use based on any one of those factors. The Applicant similarly addresses each of those factors,
concluding that the Subject Property is not suitable for farm use. Having reviewed the evidence and
arguments presented by these participants, a primary difference in their positions comes down to the
definition of "farm use", which ORS 215.203(2)(a) defines as:
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.
According to COLW, the Subject Property could be employed for multiple farin uses because: (1) the soil
fertility is high -value farmland; (2) it can be used for livestock, on its own or in conjunction with other
lands; (3) the climate is the same as the climate of surrounding agricultural lands; (4) irrigation water is
available; (5) it is part of a larger block of productive agricultural land; (6) any technological and energy
inputs needed to farm the property are not unique; and (7) it is an accepted farm practice to improving the
property for farming, such as removing rocks, tilling and fertilizing soil, and improving irrigation
infrastructure. COLW also notes that the Subject Property has historically had an irrigated pasture.
The Applicant does not dispute that some "farming" may be possible on the Subject Property. Rather, the
Applicant asserts that, based on these same factors, farming activities would not be "profitable" and,
therefore, do not arise to the level of a "farm use" as defined by ORS 215.203(2)(a). The Applicant
supports its assertions with evidence from the Soil Study and farmers with experience engaging in farm
uses. The Applicant's explanation includes addressing its inability to engage in farm uses on the Subject
Property even if the Subject Property is considered in conjunction with other parcels.
As just one example, the Applicant provided evidence that the Subject Property could not support enough
forage for even one cow to graze and that any revenue gained from raising one cow would be more than
offset by all the costs necessary to engage in that activity. Similarly, the Applicant provided evidence that
the costs of adding additional irrigation infrastructure are unreasonable and prohibitive. The Applicant
also notes that the historical use on the site as an irrigated pasture does not necessarily inform whether
such a use constitutes a "farm use" under current conditions as COLW suggests — for example, because
the economics of farm activities have changed over time.
As it relates to this administrative rule, the competing evidence submitted by the parties makes this a close
call. Having reviewed and weighed that evidence, however, I find that the quantitative and more -detailed
Page 1 14
evidence provided by the Applicant is more persuasive, and I conclude that it is more likely than not that
the Subject Property is not suitable for farm uses as defined in ORS 215.203(2)(a).
OAR 660-033-0020(1)(a)(C)
As a final argument on this issue, COLW asserts that the Subject Property is "agricultural land" as defined
in OAR 660-033-0020(1)(a)(C). That rule states that land qualifies as "agricultural land" if it "is necessary
to permit farm practices to be undertaken on adjacent or nearby agricultural lands." COLW specifically
asserts that the extra traffic, noise, and human presence resulting from a zone change "threatens the
viability of current and potential farm practices in the area." The Applicant responds, in part, by noting
how LUBA has interpreted this rule to require "some connection between the subject property and
adjacent or nearby farm practices, such that the property must remain as `agricultural land' in order to
permit such practices on other lands to be undertaken."4 In that case, LUBA agreed that it is not only that
the land itself must be necessary to permit farm practices on other lands, but the land's resource
designation and zoning must be "necessary" to permit farm practices on other lands.
LUBA acknowledges that this "necessary" standard is a high one, and some conflicts may be allowed.
But where specific conflicts are identified, they must be assessed. COLW, however, does not identify
specific conflicts that will happen as a result of the change in zoning, only potential conflicts that may
arise. Indeed, specific conflicts would be difficult to identify because the Application does not propose a
specific development. The Applicant does contemplate using the Subject Property for the expansion of an
existing school, but COLW acknowledges that such a use is authorized under current zoning. Thus, the
change in zoning would not be the cause of the conflicts COLW urges must be avoided in order for other
properties to continue farming.
Based on the foregoing, I find that the evidence in the record does not allow me to conclude that the
Subject Property is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural
lands and, therefore, the Subject Property does not qualify as agricultural land under this part of the rule.
OAR 660-033-0020(1)(12)
The state's administrative rules provide one more definition of "agricultural lands" in OAR 660-033-
0020(l)(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;..." The Applicant states that the Subject Property does not fall
into this category and "is not, and has not, been a part of a farm unit". The Staff Report agrees with the
Applicant's assessment, and no other participant challenges that assessment or argues that the Subject
Property falls within this definition. Based on the foregoing, I find that the Subject Property is not
"agricultural land" under OAR 660-033-0020(1)(b).
4 Central Oregon LandWatch et al. v. Deschutes County, Or LUBA _ (LUBA No. 2023-006/009)
(July 28, 2023).
Page 1 15
d. Goal 5 Administrative Rules
COLW argues that the Application is not in compliance with OAR 660-023-0250(3)(b), which is part of
Goal 5. Goal 5 and its implementing rules protect natural resources, scenic and historic areas, and open
spaces. Pursuant to OAR 660-023-0250(3), the County does not have to apply Goal 5 as part of a post -
acknowledgment plan amendment ("PAPA") "unless the PAPA affects a Goal 5 resource." One scenario
in which a PAPA may affect a Goal 5 resource is when the "PAPA allows new uses that could be
conflicting uses with a particular significant Goal 5 resource site on an acknowledged resource list."'
COLW argues that the proposed Plan Amendment and Zone Change requires the Applicant to apply Goal
5 provisions because the Application "proposes to amend the plan designation and zoning for the subject
property that would allow new uses — those permitted in the MUA-10 zone — on the subject property" and
that those new uses may conflict with the County's Goal 5-protected resources. The specific resources
COLW identifies are Landscape Management Rivers, State Scenic Waterways, and wetlands.
The County regulates conflicting uses with Landscape Management Rivers and State Scenic Waterways
through the application of the Landscape Management Combining zone ("LM Zone"), and the Subject
Property currently carries the LM Zone designation.
The Applicant asserts that there is no need to apply Goal 5 in light of the County's acknowledged Plan,
which contains the LM Zone as a tool for protecting some Goal 5 resources. According to the Applicant,
the Subject Property is already subject to the LM Zone and, to the extent there are any conflicts with a
Goal 5 resource, that can be resolved at the time when specific development occurs and the County
requires site plan approval for any development within the LM Zone. The Applicant specifically states
that "[t]here is no requirement to apply Goal 5 directly to the application where, as here, the proposal does
[not] introduce `new uses' which would be conflicting with the Goal."'
The Applicant's response is not consistent with a relatively recent LUBA decision — the LUBA No. 2023-
008 case cited above in footnote 3. That decision rejects the very approach to Goal 5 the Applicant seeks
here. In that case, LUBA explained that its prior decisions require a local jurisdiction "to apply Goal 5 if
the PAPA allows a new use that could conflict with Goal 5 resources." LUBA then addressed a situation
similar to the situation presented in this case and analyzed whether the new zoning (in that case, the RI
zone on property that would retain the LM overlay) allowed uses on the subject property that were not
allowed under the previous EFU zoning and whether those uses could conflict with protected Goal 5
resources.
LUBA's decision acknowledged that the County previously conducted the appropriate Goal 5 analysis for
other RI -zoned properties and applied the LM Zone to protect the Highway 97 scenic resource from
conflicting uses on those properties. However, LUBA determined that, in the absence of evidence showing
5 OAR 660-023-0250(3)(b).
6 The Applicant's Final Legal Argument actually states: "[t]here is no requirement to apply Goal 5
directly to the application where, as here, the proposal does introduce `new uses' which would be
conflicting with the Goal." That appears to be a typo and I assume the Applicant intended to say
"...does not introduce...". That sentence would not otherwise make sense in the context in which it
appears.
Page 116
the prior Goal 5 analysis considered impacts from RI -type development on all properties, that analysis did
not consider whether RI uses on farm -zoned property affected a Goal 5 resource. Indeed, LUBA concluded
that "the county could not have, in its [prior Goal 5 analysis], evaluated whether development of those
new uses on the subject property would excessively interfere with the protected scenic resource because
those uses were not allowed on the property" at that time. Because the County's decision in that case
allowed "new uses that could conflict with inventoried Goal 5 resources," LUBA concluded the County
was required to address Goal 5 and, specifically, to comply with OAR 660-023-0250(3).
Based on that LUBA decision, I find that the Applicant's argument that Goal 5 is not applicable is
incorrect. The Plan Amendment and Zone Change would allow new uses on the Subject Property that
were not previously allowed and that could conflict with a protected Goal 5 resource. Although the
Applicant notes that its intended use is to expand an existing school, and that the current school was
approved in the MUA-10 zone subject to the LM Zone, the Application is not limited to that use, and other
uses allowed in the MUA-10 zone would be authorized after the zone change. The Applicant has not
addressed those uses, much less considered their potential conflicts with listed Goal 5 resources. The
Applicant's response also does not address COLW's assertion that wetlands will be impacted. It may be
possible for the Applicant to show that the County's prior Goal 5 analysis considered MUA-10
development on the Subject Property, or, if not, the Applicant may be able to demonstrate that the new
uses allowed on the Subject Property do not significantly affect a Goal 5 resource. However, I find that
the current record does not allow me to address either option. I therefore find that I cannot recommend
approval of the Application on this basis and the Applicant must address this issue further before the
Application is approved.
e. Goal 14 Administrative Rules
COLW argues that the Application is not in compliance with Goal 14. Goal 14 and its implementing rules
"provide for an orderly and efficient transition from rural to urban land use." See OAR 660-015-0000(14).
COLW's specific argument is that the designation of the Subject Property to the MUA-10 zone would
constitute urbanization of the Subject Property. According to COLW, the County must analyze several
urbanization factors ("Curry factors") as set forth in 1000 Friends of Oregon v. Land Conservation and
Development Commission, 301 Or 447, 474 (1986), which are also summarized by LUBA in Oregon
Shores Conservation Coalition v. Coos County, 55 Or LUBA 545, 550 (2008). COLW bases its argument
on its own assessment of the Curry factors.
One way to address this issue is to consider whether the MUA-10 zone actually authorizes urban uses. As
the Applicant notes, this question has been asked and answered by the County, as described in the recent
LUBA case Central Oregon LandWatch v. Deschutes County, OR LUBA (LUBA No. 2023-049,
Feb. 15, 2024). In that case, LUBA considered nearly identical facts where the County approved a plan
amendment and zone change from AG/EFU-TRB to RREA/MUA-10. Before turning to COLW's
arguments in that case, LUBA noted that the County's Board of Commissioner's had made the following
finding:
Deschutes County Comprehensive Plan and Title 18 of the Deschutes
County Code have been acknowledged by [the Land Conservation and
Page 117
Development Commission (LCDC)] as being in compliance with every
statewide planning goal, including Goal 14. The County specifically
amended its comprehensive plan in 2016 to provide that the Rural
Residential Exception Area Plan and its related MUA-10 and RR-10 zones
should be applied to non resource lands. Ordinance 2016-005. This
amendment is acknowledged, which means that the RREA plan designation
and its related zoning districts, when applied to non -resource lands such as
the subject property, do not result in a violation of Goal 14. (Emphasis
added).
In other words, the County's Board has already interpreted its Plan and Code to mean that all uses allowed
in the MUA-10 zone are rural in nature. This is similar to the Board's interpretation of other zones, like
the Rural Industrial (RI) zone, which LUBA also considered in a similar case.' Based on the Board's
interpretation, I find that it is not necessary to apply the Curry factors as urged by COLW, and that the
change in zone to MUA-10 does not result in urbanization of the Subject Property.
f. Goal 12 Administrative Rules
Goal 12 relates to transportation. COLW argues that the Application fails to comply with Goal 12 and its
implementing rules.
A primary regulation implementing Goal 12 is OAR 660-012-0060. That rule states:
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
'See Central Oregon Landwatch v. Deschutes County, _ Or LUBA _ (LUBA No. 2022-075, Dec. 6, 2002); aff'd 324 Or
App 655 (2023) (upholding County's finding that all uses in the RI zone are rural in nature, negating the need to undertake
additional Goal 15 analyses).
Page 118
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.
I find that this administrative rule is applicable to the Plan Amendment and the Zone Change because they
involve an amendment to an acknowledged comprehensive plan. COLW asserts that the Application does
not comply with this rule because the Applicant has not accurately estimated the vehicle trip generation
of the proposed zoning, and specifically because the Applicant has not estimated the trip generation
associated with the anticipated use of the Subject Property as a school.
The Applicant counters that its proposal will not result in a significant effect to the transportation system.
In support of that assertion, the Applicant submitted a traffic study prepared by traffic engineer Joe
Bessman, PE. The Applicant also notes that, because the Application seeks a zone change that allows
multiple uses, not just the intended use, it was not required to analyze the school use specifically and,
instead, was -required to model a worst -case scenario based on all uses allowed.
The County's Transportation Planner agreed with the conclusions of the Applicant's engineer, including
the methodology used. As a result, the Staff Report finds that the Plan Amendment and Zone Change will
comply with the Transportation Planning Rule.
Based on the foregoing, I agree with the Applicant that it has sufficiently addressed transportation impacts
and find that the Application satisfies this Goal 12 administrative rule.
5. Other Statewide Planning Goals
Division 15 of OAR chapter 660 sets forth the Statewide Planning Goals and Guidelines, with which all
comprehensive plan amendments must demonstrate compliance. The Applicant asserts the Application is
consistent with all applicable Goals and Guidelines. No participant in this proceeding identified a
Statewide Planning Goal with which the proposal does not comply, except those discussed above relating
to Goal 3, Goal 5, Goal 12, and Goal 14. Having reviewed the evidence presented, and in the absence of
any arguments relating to the other Goals, I adopt the Applicants' position and find that the Plan
Amendment and Zone Change are consistent with the following applicable Goals:
Page 119
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 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 660-005-0010
as lands suitable for commercial forest use protection under Goal 4, which are identified using
NCRS soil survey traps to determine average annual wood fiber production figures. The NCRS
maps for the subject property map it with soil mapping units 98A and B, 26A and 101 E. 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 15). None of the soils mapped on the subject property
are listed in Table 8 as suitable for wood crop production.
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 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. The proposed zone
change will promote economic opportunities by rezoning underutilized property for a subsequent
use.
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 help meet the need for rural housing. Cascades Academy
supports rural housing by providing school services for the rural properties. Approval of this
Page 120
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. Central Electric
Cooperative serves the subject property with power, water and septic are provided on -site and the
proposal will not result in the extension of urban services to rural areas.
Goal 13, Energy Conservation. The approval of this application does not impede energy
conservation. In fact, Planning Guideline 3 of Goal 13 states "land use planning should, to the
maximum extent possible, seek to recycle and re -use vacant land..." Cascades Academy provides
school services to the rural community in close proximity to residential uses, thereby reducing
vehicle miles traveled and conserving energy.
Goals 15 through 19. These goals do not apply to land in Central Oregon.
V. CONCLUSION
Based on the foregoing findings, I find the Applicant has NOT met the burden of proof with respect to the
standards for approving the requested Plan Amendment and Zone Change. I therefore recommend to the
County Board of Commissioners that the Application be DENIED unless the Applicant can meet that
burden.
Dated this 21st day of February 2025
Tommy A. Brooks
Deschutes County Hearings Officer
Page 121
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SUBMIT COMPLETED REQUEST TO
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In Favor Neutral/Undecided Opposed
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Submitting written documents as part of testimony? Yes o
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SUBMIT COMPLETED REQUEST TO
RECORDING SECRETARY BEFORE MEETING BEGINS
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BOARD OF
COMMISSIONERS
MEETING DATE: June 18, 2025
SUBIECT: Approval of Order No. 2025-022 changing the name of an existing 1,288-foot-
long existing right-of-way currently named Cardwell Road to Conquest Road
RECOMMENDED MOTION:
Move approval of Order No. 2025-022 assigning the name Conquest Road to an existing
1,288-foot-long existing right-of-way currently named Cardwell Road.
BACKGROUND AND POLICY IMPLICATIONS:
Staff provided background to the Board at a June 16, 2025 Work Session. DCC 16.16.030(I)
requires the Board to sign an order approving the name within ten days of the staff
decision becoming final.
BUDGET IMPACTS:
None.
ATTENDANCE:
Haleigh King, Senior Planner
T E 5 COG2�
o
BOARD OF
COMMISSIONERS
MEETING DATE: June 18, 2025
SUBJECT: Approval of Document No. 2025-609, a Dedication Deed for County -Owned Land
Containing a Portion of NW Davidson Way
RECOMMENDED MOTION:
Move approval of Document No. 2025-609.
BACKGROUND AND POLICY IMPLICATIONS:
Deschutes County acquired Tax Lot 141321 C004700 by tax foreclosure deed in 1975
(Official Records, Document No. 1975-2180998). The subject property is 1.01 acres and
contains portions of the improved, as -travelled roadway for NW Davidson Way. Where it
exists over and adjacent to the subject property, NW Davidson Way is a county road that is
not contained within the established public right-of-way. Additionally, the subject property
contains and is encumbered by the Central Oregon Irrigation District Lateral F Canal.
Figure - Tax Lot 141321 C004700
Road Department and Property Management Department staff are recommending that
dedication of the subject property as public road right-of-way is in the public interest
because the property is encumbered by public road and irrigation district facilities;
additionally, dedication will clarify the public record regarding the public right-of-way of the
portion of NW Davidson Way that exists over the subject property.
Board approval of Document No. 2025-609 will dedicate the subject property as public
road right-of-way.
BUDGET IMPACTS:
None
ATTENDANCE:
Cody Smith, County Engineer/Assistant Road Department Director
v'� E S c0
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BOARD OF
COMMISSIONERS
MEETING DATE: June 18, 2025
SUBJECT: Deliberations: Remand of a Thornburgh Destination Resort Modification to Final
Master Plan to amend the Fish and Wildlife Management Plan
RECOMMENDED MOTION:
Following deliberations, the Board may choose to:
• Vote to approve the application on remand.
• Vote to deny the application on remand.
BACKGROUND AND POLICY IMPLICATIONS:
The Board of Commissioners (Board) will hold a public hearing to consider a remand
proceeding from the Land Use Board of Appeals (LUBA) for a land use action review to
amend the Final Master Plan (FMP) for the Thornburgh Destination Resort by amending the
Fish and Wildlife Management Plan (2022 FWMP) and imposing limitations on the scope of
development and water use allowed by the Thornburgh Destination Resort.
Record items can be viewed and downloaded from the following link:
bit ly/0425ThornburghRemand
BUDGET IMPACTS:
None
ATTENDANCE:
Jacob Ripper, AICP, Principal Planner
►f�i & Lei 71 10110111 ITll
TO: Deschutes County Board of Commissioners
FROM: Jacob Ripper, AICP, Principal Planner
DATE: June 18, 2025
SUBJECT: Deliberations: Remand of a Thornburgh Destination Resort Modification,
application 247-22-000678-MC (remand ref. 247-25-000229-A).
On May 7, 2025, the Board of Commissioners (Board) held a public hearing to consider a
decision on remand from the Oregon Land Use Board of Appeals (LUBA) regarding an
application for amendment to the Final Master Plan (FMP) for the Thornburgh Destination
Resort. The proposed amendment seeks to amend the Fish and Wildlife Management Plan
(2022 FWMP) and to impose limitations on the scope of development and water use allowed
at the Thornburgh Destination Resort. The record associated with this review on remand is
located on the project webpage'. This remand proceeding is a continuation of an existing
application (247-22-000678-MC), with the full record located on the project webpage'.
BACKGROUND
The original application was received by the Planning Division on August 17, 2022. A public
hearing was conducted by a Deschutes County Hearings Officer on October 24, 2022. On
December 19, 2022, the Hearings Officer denied the Applicant's request.
Two appeals of the Hearings Officer's decision were received. The Applicant filed an appeal
on Friday, December 30, 2022 (ref. 247-22-000984-A) and an appeal was filed by A. Gould on
Tuesday, January 3, 2023 (ref. 247-23-000003-A). The Board of County Commissioners
conducted a public hearing on February 1, 2023.
The Board held deliberations on Wednesday, March 29, 2023, and voted 2-1 to approve the
Applicant's request. The Board's final decision was approved and mailed on April 17, 2023.
All decisions and recordings of those meetings are available on the project websites.
1 bidy/0425ThornburghRemand
2https•//www d_eschutes.org/cd/page/247-22-000678-mc-thornburgh-destination-resort-modification-
cmpfmpfwmp
247-21-0001043-PA/1044-ZC (247-24-000395-A) Page 1
On January 12, 2024, the Land Use Board of Appeals (LUBA) issued their Final Opinion and
Order remanding the County's decision for further review (ref. LUBA Nos. 2023-038, 2023-
039, 2023-041). On May 1, 2024, the Oregon Court of Appeals reversed and remanded to
LUBA for further review on petition of The Confederated Tribes of the Warm Springs
Reservation of Oregon (Tribe). On February 25, 2025, LUBA remanded to the County again,
adding an additional remand topic for the County to address at the local level. On April 7,
2025, the Applicant requested that the County initiate remand proceedings.
II. REMAND TIMELINE
Pursuant to Deschutes County Code (DCC) 22.34.030(C) and state law, the County must issue
a final decision within 120 days from the date the applicant requests to initiate remand
proceedings, and this time period cannot be extended unless the parties enter into
mediation. The Applicant initiated the remand proceedings on April 7, 2025, making the final
County decision due by August 5, 2025.
III. LUBA REMAND
LUBA, in its first Final Opinion and Order, remanded the County decision to address the
follow issues summarized below:
1. Additional findings to explain why the submittal of the 2022 Fish and Wildlife
Management Plan (FWMP) to the Oregon Water Resources Department is sufficient
to satisfy the "no net loss" standard with respect to groundwater sources for fish
habitat mitigation.
On pages 64-65 of the LUBA decision, LUBA addresses the arguments of Appellant Bishop
that the 2022 FWMP groundwater rights compliance provisions are inadequate to support a
conclusion that the 2022 FWMP will result in no net loss to fish habitat. On this sub -
assignment of error, LUBA sustained Bishop's assignment of error in part:
We agree with Bishop that the county's findings are inadequate to explain why
submittal to [the Oregon Water Resources Division] OWRD is sufficient to satisfy the
no net loss standard with respect to groundwater sources for fish habitat mitigation.
Indeed, Thornburgh and the county rely upon OWRD processes to ensure that
voluntary cancellation of water rights consistent with OWRD rules and review
processes will result in improved fish habitat.... The county has failed to explain how
simple submittal of an application to OWRD permits the county to rely on those
OWRD processes.
Thornburgh has not pointed to any evidence supporting a conclusion that ground
water right certificate ownership, cessation of pumping, and OWRD submittal is
sufficient to ensure fish mitigation water will be provided as assumed in the 2022
FWMP.
247-25-000229-A Page 2
2. That the FWMP was a substantial change with respect to the required economic
analysis and LUBA required further findings addressing DCC 18.113.070(C)(3) and
(4) and that the County will either need to consider those changes or explain why
that consideration is not required.
LUBA analyzed whether the 2022 FWMP would materially affect the findings of fact on which
the original approval was based and whether the changes resulting from the 2022 FWMP are
not "substantial changes that require a new application addressing those criteria," in four
subsections: (A) Economic Analysis; (B) Open Space; (C) Water Supply, Consumption, and
Conservation; (D) Water System and Wastewater Disposal Plans.
On the economic analysis issue, considering the proposed change to the number of golf
courses, LUBA agreed with Appellant Lipscomb that the reduction in the number of golf
courses is a substantial change to the resort development that materially affects the facts
underlying the resort's economic analysis that the county relied upon to find that DCC
18.113.070(C) is satisfied. LUBA found there is an impact to the underlying findings of fact
for the Conceptual Master Plan (CMP) approval - namely that the developed golf courses will
provide 125 newly created jobs and 3.9 million dollars in employee compensation (p. 71).
LUBA disagreed with the argument that a general change in rental cost and availability is a
"substantial change" (p. 75):
On remand, the county will need to consider whether, with the changes proposed in
the 2022 FWMP, those criteria [DCC 18.113.070(C)(3) and (4)] are satisfied. On
remand, the county will need either to consider changes to employee housing
demands based on the changes in the 2022 FWMP or explain why that consideration
is not required.
LUBA disagreed with the arguments that a "new application" means an entirely new
CMP/FMP (Final Master Plan) application and deferred to the county's interpretation of DCC
22.36,040. LUBA ruled (pp. 79-80):
Here, the identified error may be corrected by the county accepting a new economic
analysis that demonstrates that "[t]he destination resort will provide a substantial
financial contribution which positively benefits the local economy throughout the life
of the entire project, considering changes in employment, demands for new or
increased levels of public service, housing for employees and the effects of loss of
resource land" and that "[t]he natural amenities of the site considered together with
the identified developed recreation facilities to be provided with the resort, will
constitute a primary attraction to visitors, based on the economic feasibility analysis."
DCC 18.113.070(C)(3), (4). Accordingly, we conclude that the established error should
result in remand in this case.
3. Whether the 2022 Fish and Wildlife Management Plan violates the Treaty with the
Tribes of Middle Oregon, datedJune 25, 1855.
247-25-000229-A Page 3
In its 2024 decision, LUBA ruled that the Tribe's argument that the challenged decision
improperly construes applicable law by failing to address whether the 2022 Fish and Wildlife
Management Plan violates the Treaty with the Tribes of Middle Oregon, dated June 25, 1855
(Treaty), was not raised during the local proceeding and was therefore waived. LUBA also
ruled that several other arguments were not adequately raised and were thus waived.
Petitioners further appealed to the Oregon Court of Appeals. The Court of Appeals
remanded the case to LUBA in its decision, Confederated Tribes of Warm Springs v. Deschutes
County, 332 Or App 361, 550 P3d 443 (2024). On judicial review, the Court of Appeals agreed
with the Tribe that the question of whether the 2022 FWMP violates the Treaty was
sufficiently raised and that the County was obligated to make findings addressing it.
Therefore, following remand from the Court of Appeals, LUBA remanded the decision to the
County to address this issue (number 3 above), as well as the other issues it remanded in its
January 12, 2024, decision (numbers 1 and 2 above). The Appellants' other assignments of
error were denied.
IV. DELIBERATION
The following is a summary of the three remand topics and responses received during the
hearing and open record periods that the Board needs to consider and on which findings
are required. The Board also must make findings on record objections received during the
remand process. Staff has included a matrix to assist the Board in making findings and
reaching a decision.
1. FWMP and "No Net Loss" Standard:
Opponent Responses:
Opponents submit that simply providing the FWMP to OWRD, even if procedurally correct, is
insufficient to meet the substantive "no net loss" standard required by County and State
policy. Detailed critiques from technical consultants question whether groundwater
withdrawal limits, as stated in the FWMP, are backed by enforceable benchmarks orwhether
they rely on projected rather than empirically verified outcomes.
Opponents argue the plan's groundwater modeling, mitigation measures, and management
have not adequately accounted for fluctuations in aquifer health and stream flows, especially
under long-term climate variability or drought. Several letters suggest that OWRD's
administrative review does not substitute for the County's own independent ecological
assessment, which, under DCC 18.113, must be robust and transparent.
Opponents of the plan argue that the FWMP falls short in guaranteeing "no net loss" of fish
habitats. They highlight a perceived over -reliance on the OWRD's procedures, which, in their
view, lack the empirical rigor needed to ensure substantive habitat protection. Critics express
skepticism on the FWMP's water resource monitoring efficacy and suggest that the plan's
247-25-000229-A Page 4
management commitments do not adequately reflect the dynamic environmental needs of
the Deschutes Basin.
Applicant Responses:
Thornburgh maintains that mitigation strategies, outlined within the FWMP, clearly
demonstrate compliance with "no net loss" objectives. This is pursued through frameworks
reducing habitual groundwater utilization, enhanced by management commitments and
regulatory alignment with ecological standards.
The applicant, supported by analyses from engineering experts, asserts that the 2022 FWMP
is both scientifically credible and operationally robust. The plan reduces overall groundwater
withdrawal made pursuant to earlier entitlements, imposes an annual withdrawal cap, and
introduces management components that go beyond regulatory baselines.
The applicant places considerable emphasis on coordination with Oregon Department of
Fish and Wildlife (ODFW) and OWRD, highlighting water rights cancellation and aquifer
recharge as mitigation strategies. They point to the incremental streamflow benefits of
juniper thinning projects and argue these activities, when taken as a unified program,
produce greater net habitat benefits —meeting or exceeding "no net loss."
Thornburgh maintains that its strategy will result in significant reductions in groundwater
usage, effectively supporting habitat sustainability. It emphasizes that the mitigation
approach is robust and is supported by data -driven methods. Initiatives, like the reduction
of juniper trees, are highlighted as proactive measures to augment water flows beneficial to
the ecosystem.
2. Substantial Change and Economic Analysis:
Opponent Responses:
Appellants and LUBA frame the reduction in golf courses as a "substantial change" per local
code, arguing this triggers new economic analysis under DCC 18.113.070(C)(3), (4). They
argue that the current economic justification for project benefits —employment, visitor
spending, and tax revenue —relied on outdated or inflated assumptions about amenity
demand, and has not sufficiently considered post -pandemic recreation and tourism trends.
Opponents critique the applicant's employment and housing projections as inadequate for
assessing secondary impacts (e.g., employee housing demand, school enrollment, public
services). Several submittals question how lost amenity value is offset elsewhere, and
whether the record includes a net positive for the local economy rather than "selective
accounting."
LUBA acknowledged such adjustments disturb the originally calculated employment impact
of the resort, necessitating further evaluation under DCC 18.113.070(C)(3) and (4).
247-25-000229-A Page 5
Applicant Responses:
Thornburgh, supported by economic consultant analysis, counters that the amenity
modification (removal of one golf course) is an operational response, not a fundamental
shift. Submitted economic models and fiscal impact analyses anticipate continued job
creation, local business benefit, and sustained tax revenue, even with fewer total golf holes.
The applicant emphasizes that new and reallocated investments within the project —
additional trails, upgraded open space, or improvements to existing amenities —offset any
potential visitor or employment losses. Its analysis contends that core regional economic
links (e.g., hospitality, construction, outdoor recreation) remain and are not materially
undermined by the change.
The applicant submitted updated economic assessments showing the project's continued
viability despite these adjustments. Reports indicate that planned employment and revenue
remain strong, with the modifications aligning with broader regional economic strategies to
ensure long-term sustainability.
3. Treaty Compliance:
Opponent Responses:
The Confederated Tribes of Warm Springs (Tribe) and associated parties argue that the 2022
FWMP, especially in its groundwater approach, may infringe on rights reserved to the Tribe
in the 1855 Treaty. Their analysis emphasizes that treaty rights are not secondary to state or
local policy but are legally paramount, citing both case law and Oregon public trust doctrine.
They note that the region's fish habitats, critical to tribal culture and subsistence, are already
under stress from competing uses, and question whether the mitigation proposed by the
applicant is sufficient to avoid "measurable harm" (a.k.a. "no net loss").
Opponents also voice concern that the County has historically failed to adequately consult
with tribal governments on land use actions of this magnitude and urge that the record be
supplemented with direct tribal input and technical feedback.
Applicant Responses:
The applicant asserts that both the FWMP's content and associated public process afforded
on remand exceed typical standards of treaty compliance. It notes communication with tribal
technical representatives and inclusion of tribal comments in earlier proceedings.
Thornburgh asserts that, when all plan elements are implemented, the resulting fish habitat
conditions are either neutral or will actually result in a net improvement over previous
conditions, thereby avoiding a "take" of protected or endangered species under the
Endangered Species Act (ESA), or diminishment of tribal resources.
Thornburgh underscores that additional mitigation or monitoring will function as an added
check, ensuring that treaty -protected values are not merely theoretical but enforceable
throughout future resort operations.
247-25-000229-A Page 6
4. RECORD OBJECTIONS
A. REMAND PARTICIPATION
Deschutes County acknowledges the strong public interest and engagement in the
Thornburgh remand process and respects the fundamental importance of transparency and
due process under Statewide Planning Goal 1 in quasi-judicial land use matters. The County's
discernment of eligibility for participation in the remand process is governed by a
combination of local code, state law, and established case law precedent, and must be
applied neutrally regardless of the issues before the Board.
Deschutes County Code 22.34.030(A) states, "Unless state law requires otherwise, only those
persons who were parties to the proceedings before the County shall be entitled to notice
and be entitled to participate in any hearing on remand." In practical terms, this means that
only those who were parties, meaning those who provided testimony, evidence, or otherwise
established "party" status during the previous proceedings, are legally permitted to submit
testimony or evidence and receive formal notices of subsequent hearings on remand.
This restriction is intended to maintain fairness, preserve the integrity of the record, and
ensure that the remand proceeding remains focused on issues specifically identified by
LUBA, rather than opening up all issues as if the proceeding was a new original hearing on
the application.
ObJections
Some members of the public and groups argue that the County has too narrowly applied
DCC 22.34.030(A) by "denying" standing to those who did not participate previously, or by
sending emails that may have been perceived as overly restrictive or "chastising" of new
commenters3. The County did not intend to suppress viewpoints and comments but must
adhere to the statutory and local frameworks that govern the remand scope and prescribe
the County's determination of standing, as clarified in mailed hearing notices and the issue
Board Order. Only those commenters with standing may participate in remand proceedings.
This is not new evidence or testimony and is part of the record.
The Board did clarify participation limits in the public hearing notice: "you are receiving this
notice as County records show you were a party to the previous proceedings. Pursuant to
DCC 22.34.030(A) only those persons who were parties to the previous proceeding are
entitled to notice and entitled to participate in the remand hearing."
Some commenters cited cases such as Siporen v. Medford, 55 Or LUBA (2007), and Siporen v.
Medford, 349 Or. 247 (2010) and asserting that no person wishing to participate in the remand
proceedings should be denied that opportunity simply because they did not participate
previously.. The County recognizes these arguments but notes the importance of adhering
3 See Central Oregon LandWatch letter dated May 21, 2025, p. 3.
247-25-000229-A
Page 7
to the specific procedural posture of each remand —namely, whether the record is reopened
for new evidence and the precise scope defined by order and notice.
Summary
Deschutes County recognizes and appreciates the considerable public interest surrounding
the Thornburgh remand proceedings. The County's review process, however, is governed by
the requirements of DCC 22.34.030, which stipulates that, unless state law requires
otherwise, only those persons who were parties to the proceedings before the County are
entitled to notice and to participate in remand hearings. This rule preserves the focus of the
remand on specific legal and factual issues sent back to the County by LUBA and is rooted in
statewide mandated procedures applicable to quasi-judicial appeals.
In this remand, staff received a substantial volume of public comments submitted by
individuals and organizations who were not parties to the initial proceedings. A majority of
these comments were in direct response to a "call to action" circulated within the community.
As a result, the content of many of these submissions is nearly identical, often repeating the
same text. While staff acknowledges the strong feelings and desire for civic engagement
expressed by these individuals, it should be noted that the volume and similarity of such
responses do not, by themselves, constitute "substantial evidence" on the issues. Nor does
the volume of comments constrain the Board's weighing of competing evidence on the
remanded issues.
Consistent with best practices and out of an abundance of caution, staff proactively
contacted each commenting individual to confirm their participation history and eligibility
status. Although comments received from parties who did not participate in the original
proceedings were not required to be admitted to the official record under DCC 22.34.030(A),
staff nonetheless included them in the record, with a notation, to provide full transparency.
This is consistent with previous Board direction. However, inclusion in the record does not
alter the legal standard for standing: under local code and applicable state law, the Board is
compelled to disregard comments submitted by individuals who were not parties to the
earlier County proceeding.
Staff is committed to both transparency and fairness but advises the Board and participants
that only the testimony and evidence from eligible parties —those who actively participated, •
in the original County hearings —should be considered in the County's remand findings and
final decision.
If the Board has questions regarding the status of individual commenters or the application
of these rules to a particular procedural context, staff is prepared to provide further
documentation or clarification.
B. NEW EVIDENCE
During the Thornburgh remand proceedings, several objections were made to the content
and timing of materials submitted to the record. Notably, parties represented by Jennifer
Bragar objected to what they described as new evidence introduced by the applicant during
247-25-000229-A Page 8
the rebuttal period of the open record process. These parties contended that the applicant's
submittals included materials that were not "rebuttal," but presented substantive new
evidence that could and should have been provided earlier in the process. They argued that
this new evidence could unfairly prejudice their ability to respond and asked the Board to
disregard these materials. They emphasized that rebuttal evidence is intended to address
only material previously introduced in the new evidence period of the open record process,
and cannot introduce new factual content, referencing the requirement to preserve
objections for potential appeal and citing LUBA precedent on procedural due process.
In response, the applicant's legal counsel countered that the submittals in question fit within
the accepted definitions of "argument" and "evidence" as allowed under state rules, citing
both OAR 661-010-0025 and ORS 197.797(9). The applicant asserted that it had not, in fact,
exceeded what was permissible and pointed out that state law does not categorically
prohibit the introduction of documents during rebuttal, so long as those documents are
responsive to previously submitted material or serve to clarify the applicant's position on
issues raised in the open record. The applicant further contended that the definitions of
"argument" (as assertions and policy analysis) and "evidence" (as facts, documents, or data)
are to be construed with some flexibility per LUBA custom. Its response noted that prior case
law generally provides the Board discretion to determine how to handle record objections,
provided that the substantial rights of parties are not prejudiced and appropriate
opportunities to respond were provided or could be reasonably offered through process.
In remand proceedings, the statutory 120-day timeline, which cannot be extended, leaves
little time to offer additional response (rebuttal) timelines. Staff recommends the Board find
that there is no opportunity for response that could be "reasonably offered," in this process,
given limited Board availability and compliance with the statutory timeline.
From staffs perspective, the essential issue is whether the applicant's materials in fact
introduced new "evidence" outside the scope of what rebuttal is designed to address, and
whether parties were prejudiced in their right to respond as a result. LUBA case law
reiterates that the integrity of the record turns on whether all parties had a fair, clear
opportunity to provide substantive input and whether clear instructions regarding rebuttal
periods were followed. E.g., Trautman v. Eugene, 73 Or LUBA 209 (2016); Woodstock Neigh.
Assoc. v. City of Portland, 28 Or LUBA 146 (1994).
Ultimately, it is within the Board's discretion to accept or reject extraneous rebuttal material,
if it considers such material to be beyond the scope of rebuttal, provided its decision is made
with consideration of procedural fairness, transparency, and the preservation of all parties'
procedural rights in the process. Should there remain concern that any party's opportunity
for response was unfairly limited, the Board may consider reopening the record on a
targeted basis to cure such potential prejudice, in alignment with best practices and state
law requirements, although staff strongly recommends not to do so, due to the strict 120-
day time limit to issue a final decision and the Board's availability, and avoid a petition for
writ of mandamus.
247-25-000229-A Page 9
VI. NEXT STEPS AND TIMELINE
Due to the compressed timeline for remand proceedings (120 days instead of 150 days with
no option of extension), a final decision on remand must be issued by the County no later
than August 5, 2025.
Mon. June 18: Meeting to review the appeal on the record, deliberate the appeal topics, and
provide guidance and findings so that staff can draft a final decision.
Mon. July 23: Meeting to consider signature of the final decision.
Attachment(s):
Attachment A: Decision Matrix
247-25-000229-A Page 10
FWMP and "No Net Loss" Standard
Substantial Change and Economic
Opponent Responses
LUBA Remand Topic 1)
Opponents argue that simply
providing the FWMP to OWRD, even
if procedurally correct, is insufficient
to meet the substantive "no net loss"
standard required by County and
State policy. Detailed critiques from
technical consultants question
whether groundwater withdrawal
limits, as stated in the FWMP, are
backed by enforceable and measured
outcomes. Opponents argue the
plan's groundwater modeling,
mitigation measures, and
management have not adequately
accounted for fluctuations in aquifer
health and stream flows, especially
under long-term climate variability or
drought.
ialysis (LUBA Remand Topic 2)
Appellants and LUBA frame the
reduction in golf courses as a
"substantial change" per local code,
requiring new economic analysis.
Opponents argue that economic
justification for project benefits relied
on outdated assumptions about
amenity demand and overlooks post -
pandemic trends. They critique job
and housing projections as
inadequate, and question whether
lost amenity value is offset, or
whether selective accounting hides
negative net impacts.
Applicant Responses
Thornburgh maintains that mitigation
strategies, outlined within the FWMP,
clearly demonstrate compliance with
"no net loss" objectives, pursued
through a plan to reduce groundwater
utilization, and enhanced by
commitments and regulatory
alignment with ecological standards.
The applicant, supported by technical
experts, asserts the FWMP is
scientifically credible and
operationally robust, featuring annual
withdrawal caps and adaptive
management well beyond the
regulatory baseline.
The applicant places emphasis on
coordination with ODFW and OWRD,
highlighting water rights cancellation,
aquifer recharge, and juniper thinning
as mitigation strategies. They argue
that a unified program, including
these activities, produces net habitat
benefits meeting or exceeding "no net
loss."
The applicant responds that the
amenity modification is operational,
not fundamental to the resort; and
that fiscal impact analyses support
continued job creation, business
benefit, and tax revenue. New
investments in trails and other
upgraded spaces are offered as
offsets. Updated economic
assessments indicate ongoing
viability with these changes.
Staff Notes
Board Determination
0611812025 Item #22.
Yes/No: Does the Board find the 2022
None Fish and Wildlife Management Plan
(FWMP) is sufficient to satisfy the "no net
loss" standard with respect to
groundwater sources for fish habitat
mitigation?
None
Yes/No: Does the updated economic
record address and meet all impacts per
DCC 18.113.070(C)(3), (4)?
261
Compliance (LUBA Remand
Procedural
A. Remand Participation
B. New Evidence and Rebuttal
The Tribe and some public
commentors argue the 2022 FWMP,
especially its groundwater scheme,
may infringe on rights reserved in the
1855 Treaty, which they assert are
legally paramount. They highlight fish
habitat stress as an ongoing concern,
question whether any mitigation
offered can truly avoid "measurable
harm," and assert a lack of authentic
consultation with tribal aovernments.
Some members of the public and
community groups argue that
Deschutes County has applied DCC
22.34.030(A) too strictly, effectively
"denying" participation to those who
did not testify or submit evidence in
the original proceedings. Concerns
were also expressed over the tone or
content of County communications,
which participants felt chastised
engagement. Commenters also cited
the Siporen v. Medford cases, arguing
remand proceedings should be more
open or flexibly interpreted to allow
the broadest possible participation.
Objecting parties contended that the
applicant's rebuttal submissions
included not just responsive
arguments but also extensive new
facts and material that should have
been introduced earlier. They assert
that this practice both prejudiced their
ability to respond and violated the
procedural expectation that rebuttal is
not a second opportunity for new
evidence. They request that such
materials be excluded from the
The applicant asserts that the
FWMP's process has exceeded None
standard treaty compliance, citing
communication with tribal
representatives, incorporation of
feedback, and mitigation that either
leaves fish habitat unchanged or
improved. They argue monitoring and
dispute resolution processes will
ensure enforceability throughout
Yes/No: Do findings and process
adequately address the Tribe's treaty
rights?
0611812025 Item #22.
The County's application of Yes/No: Did the Board properly apply and
None participation limits is rooted in the communicate participation requirements,
statutory and code requirements, maintaining both transparency and
both state law and DCC procedural integrity?
22.34.030(A).
The applicant's counsel responds that
their rebuttal fits squarely within the
definitions of "argument" and
"evidence" accepted under state law
and implementing rules. They argue
state law does not ban the
introduction of clarifying or responsive
evidence during rebuttal as long as it
is directly linked to prior testimony or
public record submissions. They also
cite LUBA and statutory precedent
supporting a flexible approach and
urge the Board to exercise its
Staff reviewed eligibility on a case -by -
case basis, contacted individuals to
confirm standing, and included all
comments in the record out of
transparency —even those ineligible
for consideration as "substantial
evidence." However, staff
emphasizes that inclusion in the
record does not alter the legal
requirement: only evidence and
testimony from prior parties may be
considered by the Board in its final
decision and findings on remand.
Staff notes the 120-day statutory
deadline for remand limits capacity
for further rebuttal rounds. Staff
recommends the Board consider
whether material in rebuttal in fact
constitutes new, non -responsive
evidence, and, if so, whether parties
were materially prejudiced. LUBA
precedent affords the Board
discretion and expects substantial
fairness and record clarity. If
reopening the record is considered,
staff recommends strong caution,
Yes/No: Should the Board accept the
rebuttal evidence into the record, or
disregard/exclude it from consideration on
remand?
0611812025 Item #22.
record, or at minimum, disregarded in
discretion in weighing all such
given statutory and process
deliberations.
evidence.
constraints
663
T E 5 CMG
2� BOARD OF
COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS MEETING
9:00 AM, WEDNESDAY, JUNE 18, 2025
Barnes Sawyer Rooms - Deschutes Services Building - 1300 NW Wall Street - Bend
(541) 388-6570 1 www.deschutes.org
MEETING FORMAT: In accordance with Oregon state law, this meeting is open to the public and
can be accessed and attended in person or remotely, with the exception of any executive session.
Members of the public may view the meeting in real time via YouTube using this link:
http://bit.ly/3mminzy. To attend the meeting virtually via Zoom, see below.
Citizen Input: The public may comment on any topic that is not on the current agenda.
Alternatively, comments may be submitted on any topic at any time by emailing
citizen input@deschutes.org or leaving a voice message at 541-385-1734.
When in -person comment from the public is allowed at the meeting, public comment will also be
allowed via computer, phone or other virtual means.
Zoom Meeting Information: This meeting may be accessed via Zoom using a phone or computer.
To join the meeting via Zoom from a computer, use this link: http://bit.ly/3h3ogdD.
• To join by phone, call 253-215-8782 and enter webinar ID # 899 4635 9970 followed by the
passcode 013510.
• If joining by a browser, use the raise hand icon to indicate you would like to provide public
comment, if and when allowed. If using a phone, press *9 to indicate you would like to speak and
*6 to unmute yourself when you are called on.
• When it is your turn to provide testimony, you will be promoted from an attendee to a panelist.
You may experience a brief pause as your meeting status changes. Once you have joined as a
panelist, you will be able to turn on your camera, if you would like to.
Deschutes County encourages persons with disabilities to participate in all
programs and activities. This event/location is accessible to people with disabilities.
If you need accommodations to make participation possible, call (541) 388-6572 or
email brenda.fritsvold@deschutes.org.
Time estimates: The times listed on agenda items are estimates only. Generally, items will be heard in
sequential order and items, including public hearings, may be heard before or after their listed times.
CALL TO ORDER
PLEDGE OF ALLEGIANCE
CITIZEN INPUT
The Board of Commissioners provides time during its public meetings for citizen input. This is an
opportunity for citizens to communicate to the Commissioners on matters that are not otherwise
on the agenda. Time is limited to 3 minutes.
The Citizen Input platform is not available for and may not be utilized to communicate obscene or
defamatory material.
Note: In addition to the option of providing in -person comments at the meeting, citizen input comments
may be emailed to citizeninput@deschutes.org or you may leave a brief voicemail at 541.385.1734.
CONSENT AGENDA
Approval of Document No. 2025-609, a Dedication Deed for County -Owned Land
Containing a Portion of NW Davidson Way
2. Approval of Document No. 2025-615, an amendment to the IGA with Oregon Health
Authority for the funding of Public Health services #180009-20
3. Approval of Resolution No. 2025-032 authorizing the acquisition of Right of Way for the
construction of road improvements on South Century Drive and Huntington Road
4. Approval of Order No. 2025-022 changing the name of an existing 1,288-foot-long
existing right-of-way currently named Cardwell Road to Conquest Road
5. Approval of Document No. 2025-586, an Oregon Department of Human Services grant
agreement #185414 for the My Future - My Choice program
6. Approval of Resolution No. 2025-007 adopting a supplemental budget and adjusting
appropriations within the Fiscal Year 2025 Deschutes County budget
Convening as the Governing Body for the Sunriver Service District
7. Approval of Resolution No. 2025-029 adopting a supplemental FY2025 budget for the
Sunriver Service District to increase appropriations in the Public Safety Building Fund
and transfer appropriations from the General Fund
June 18, 2025 BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 4
Reconvening as the Governing Body for Deschutes County
8. Consideration of Board Signature on letter thanking Dan Holland for service on the Dog
Control Board of Supervisors
9. Approval of the minutes of the May 7, 2025 BOCC meeting
10. Approval of the minutes of the June 6, 2025 BOCC Legislative Update meeting
ACTION ITEMS
11. 9:10 AM Consideration of a Ground Lease with Mountain View Community
Development for use of +/- 0.25-acres of County -owned property for Safe
Parking at the Public Safety Campus
Convening as the Governing Body for the OSU Extension and 4H Service District
12. 9:15 AM Public Hearing and consideration of Resolution No. 2025-021 adopting the
Deschutes County Extension and 4H Service District FY 2026 Budget
Convening as the Governing Body for the 9-1-1 Service District
13. 9:20 AM Public Hearing and consideration of Resolution No. 2025-022 adopting the
Deschutes County 9-1-1 Service District FY 2026 Budget
Convening as the Governing Body for the Black Butte Ranch Service District
14. 9:25 AM Public Hearing and consideration of Resolution No. 2025-023 adopting the
Black Butte Ranch Service District FY 2026 Budget
Convening as the Governing Body for the Countywide Law Enforcement (District #1)
Service District
15. 9:30 AM Public Hearing and consideration of Resolution No. 2025-024 adopting the
Countywide Law Enforcement District (District #1) FY 2026 Budget
Convening as the Governing Body for the Rural Law Enforcement (District #2)
Service District
16. 9:35 AM Public Hearing and consideration of Resolution No. 2025-025 adopting the
Rural Law Enforcement District (District #2) FY 2026 Budget
June 18, 2025 BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 4
Convening as the Governing Body for the Sunriver Service District
17. 9:40 AM Public Hearing and consideration of Resolution No. 2025-026 adopting the
Sunriver Service District FY 2026 Budget
Reconvening as the Governing Body for Deschutes County
18. 9:45 AM Public Hearing and consideration of Resolution No. 2025-020 adopting the
Deschutes County FY 2026 Budget
19. 9:50 AM Public Hearing and consideration of Resolution No. 2025-028, increasing or
transferring appropriations in the ARPA Fund and the Campus Improvement
Fund for FY2025
20. 9:55 AM Consideration of First and Second Reading and emergency adoption of
Ordinance No. 2025-009: Clear and Objective Housing Text Amendments -
Goal 5 (Title 18)
21. 10:00 AM Public Hearing: Plan Amendment and Zone Change for approximately 22.5
acres south of Tumalo and west of Highway 20 (Cascades Academy)
22. 11:15 AM Deliberations: Remand of a Thornburgh Destination Resort Modification to the
Final Master Plan to amend the Fish and Wildlife Management Plan
LUNCH RECESS
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
EXECUTIVE SESSION
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation, ORS 192.660(2)(d), labor
negotiations, ORS 192.660(2)(b), personnel issues, or other executive session categories.
Executive sessions are closed to the public, however, with few exceptions and under specific guidelines,
are open to the media.
ADJOURN
June 18, 2025 BOARD OF COUNTY COMMISSIONERS MEETING Page 4 of 4