2025-314-Minutes for Meeting August 20,2025 Recorded 9/22/2025\3TEs Co o I Recorded in Deschutes County CJ2025-314
BOARD OF Steve Dennison, County Clerk
COMMISSIONERS Commissioners' Journal 09/22/2025 4:31 A0 PM
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1300 NW Wall Street, Bend, Oregon ,'}``\("• �I��l��flf"��'Ii��'I���� I� �I
(541) 388-6570 - 2025-314
FOR RECORDING STAMP ONLY
BOCC MEETING MINUTES
9:00 AM WEDNESDAY August 20, 2025 Barnes Sawyer Rooms
Live Streamed Video
Present were Commissioners Anthony De Bone, Patti Adair and Phil Chang.
Also present were Deputy County Administrator Whitney Hale; 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: None
COMMISSIONER ANNOUNCEMENTS:
Referring to her current service roles on the Central Oregon Health Council and the
State of Oregon Local Government Advisory Committee, Commissioner Adair
announced that she will attend the State of Reform Health Policy conference on
November 4th in Portland. The registration fee will be waived.
CONSENT AGENDA: Before the Board was Consideration of the Consent Agenda.
Adoption of Resolution No. 2025-035 to acquire Right of Way for the construction
of road improvements on Tumalo Reservoir Road
BOCC MEETING AUGUST 20, 2025 PAGE 1 OF 6
2. Consideration of Board Signature on letters appointing Marie Manes and Wendy
Jackson, and reappointing Lindsay Atagi, Sarah Baron, Sharity Ludwig, Robert
Ross and Colleen Sinsky for service on the Public Health Advisory Board
3. Approval of the minutes of the BOCC July 23, 2025 meeting
ADAIR: Move Board approval of the Consent Agenda as presented
CHANG: Second
VOTE: ADAI R: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 3 - 0
Commissioner Chang expressed his appreciation for those willing to serve on the
Public Health Advisory Board, saying he tremendously values their service as well as
the participation from others who present information on pertinent topics.
ACTION ITEMS:
4. Public Hearing and consideration of Order 2025-034 approving the
annexation of two properties in the 61000 block of Cabin Lane into the Bend
Park & Recreation District
Dave Doyle, County Counsel, said the proposed annexation meets all of the relevant
requirements to proceed.
The public hearing was opened at 9:05 am. There being no one who wished to testify, the
public hearing was closed at 9:06 am.
CHANG: Move approval of Board Order 2025-034 approving the Cabin Lane
annexation into the Bend Park & Recreation District
ADAIR: Second
VOTE: ADAIR: Yes
CHANG: Yes
DEBONE: Chair votes yes. Motion Carried 3 - 0
5. Public Hearing on an application submitted by BLC LLC to rezone 240 acres
from Exclusive Farm Use to Multiple Use Agricultural with a corresponding
Comprehensive Plan designation change from Agriculture to Rural
Residential Exception Area
BOCC MEETING AUGUST 20, 2025 PAGE 2 OF 6
Audrey Stuart, Associate Planner, reviewed the procedures for the hearing.
The public hearing was opened at 9:12 am.
Stuart provided background on the application submitted by BLC, LLC to rezone
four parcels from Exclusive Farm Use to Multiple Use Agricultural and shared a map
showing the location of the parcels which together total about 240 acres. Noting
that a significant portion of the property is within the Landscape Management
Combining Zone (LMCZ), Stuart added that the applicant is not seeking an exception
to Goal 3 as it argues that the property does not constitute agricultural land. The
Hearings Officer recommended approval of the application.
In response to Commissioner Chang, Stuart confirmed that because the soil maps
provided by the Natural Resource Conservation Service (NRCS) indicate that the land
is non-agricultural, no separate soil studies involving test pits or soil collected from
the property were conducted. Stuart agreed that the NRCS mapping is not site -
specific but more generalized.
Saying that soil quality can be amended with compost and irrigation, Commissioner
Chang added that the goal of the MUA10 zone is to serve as an orderly transition
from urban to rural areas.
Chris Koback, representing the applicant, said staff presented a detailed report to
the Hearings Officer on the rezone application, and the decision of the Hearings
Officer was likewise detailed. He referred to a recent decision of the Land Use Board
of Appeals with regard to the Destiny Court rezone matter and spoke to other
recent rezones of resource land to rural residential zoning in the area. He explained
the two primary ways in which soil conditions are determined and said the applicant
has shown that the property, which has no irrigation rights, cannot support any
farming activities for profit.
Continuing, Koback brought up Statewide land use Goal 14 and how rezoning rural
land to MUA10 has created exception areas. He summarized the reasons given by
the Hearings Officer to recommend approval of the application and said while the
existing solar farms would be made a non -conforming use upon a rezone to MUA10,
the fact of this non-conformance would not make them inconsistent with the
MUA10 zone. He said the solar farms, which are spread over 63 acres, were
specifically approved because the land they are on was deemed to be not suitable
for agricultural use. Adding that the solar farms utilize valuable equipment which is
not yet obsolete and expected they will continue to operate for another 10 or 20
years, he said the conditional use permit issued for the solar farms requires that the
equipment be removed at the end of its useful life, after which the land must be
restored to its previous condition.
BOCC MEETING AUGUST 20, 2025 PAGE 3 OF 6
Continuing, Koback rejected the assertion by Central Oregon LanclWatch that
farming activities other than grazing or hay production could possibly be conducted
on the properties, saying it is not sufficient to mention the possibility of such uses
without submitting evidence which supports such activities as viable. He spoke to
the high cost of investing in agricultural activities and to the need to weigh that
against the possibility of returning a profit, given that 100 acres of water rights is
currently being marketed for $2 million. Saying that the purpose of the MUA10 zone
is to allow rural development consistent with the character of the area and the
resources on the land, Koback said there is no intention of extending urban services
such as sewer and water to the properties.
Referring to future population trends developed by Portland State University which
indicate that the population of the rural part of Deschutes County will begin to
decline after 25 years, Commissioner Chang said sufficient residentially -zoned land
already exists to provide for the projected housing needs in the rural areas over that
time.
In response to Commissioner Chang, Koback agreed that the MUM 0 zone is meant
to provide an orderly transition from rural to urban areas and said this raises
complex issues, including how higher quality resource land will be protected as
Deschutes County continues to grow in population. Koback stressed that these
particular parcels —like others —will not be farmed due to poor soil conditions.
Rory Isbell, Central Oregon Land Watch (COLW), referenced written comments
submitted by COLW Associate Staff Attorney Robin Hayakawa. Isbell said that
although County Code requires ensuring that a proposed rezone aligns with the
intent of the new zone, because these particular properties contain solar farms
which are allowed in the EFU zone but not in the MUA10 zone, the proposed rezone
would create a non -conforming use.
With regard to the condition of the property's soils, Isbell said any soil analysis must
be certified by the State, which has not happened in this case. COLW believes the
land is suitable for agricultural uses and that it shows proof of previous farming
activity, including irrigation. He concluded that COLW is additionally concerned that
because the property is within one mile of the UGB, a rezone would allow the
application of a density bonus which could result in the development of a 48-unit
subdivision having no minimum lot size.
Brent Barnett sought information on potential impacts to wildlife in the area. Saying
that digging new wells could impact the supply of water to existing wells, he
questioned approving rural sprawl instead of urban infill and wondered if his
parents' property taxes would rise. He spoke to road safety, questioned how
BOCC MEETING AUGUST 20, 2025 PAGE 4 OF 6
increased traffic would be mitigated, and wondered if the local fire department
would be able to provide adequate response to a higher- population, in particular for
medical emergencies.
Following up to a question posed by Commissioner Chang, Senior Planner Nicole
Mardell spoke to the Future Urbanization Code Amendment project currently
underway, saying staff awaits information on changes to State law relating to urban
reserve rulemaking. She offered to provide more information at next month'sjoint
meeting between the BOCC and the Planning Commission.
In rebuttal for the applicant, Koback said even if the solar farms were rendered non-
conforming by a rezone, this does not mean that they would be inconsistent with
the new zone. He reminded that both cluster and planned developments require
that 65% of a property remain undeveloped and said the rezone application meets
all of the requirements for approval.
There being no one else who wished to testify, the public hearing was closed at 10:23 am.
Following discussion, the Board was in consensus to accept additional written
testimony until 4 pm on August 27th. The applicant's rebuttal will be due on
September 3rd with the applicant's final legal argument due on September 10tn
Commissioner Adair sought a follow-up on whether the roundabout at Ward and
Hamby has reduced accidents and improved safety in that area. Deputy County
Administrator Whitney Hale said Road Director Chris Doty will provide a report to
the Commissioners.
Commissioner DeBone commented that development pressure is real, and said this
is happening here in Deschutes County more than in other places.
OTHER ITEMS:
Commissioner Adair will attend a meeting of the Redmond Airport art selection
committee tomorrow.
• Commissioner DeBone reported on a community listening session in La Pine last
night which was hosted by Neighborlmpact and said other listening sessions will be
held in other areas.
• Commissioner Chang announced that Senator Merkley will be in town tomorrow for
a roundtable to discuss Medicaid reductions and how those are expected to impact
Oregon residents.
• Commissioner Adair attended an EDCO orientation yesterday.
• Commissioner Chang reported on yesterday's Solid Waste Advisory Committee
meeting, saying that the Roth Northeast and Dodds Road sites have been set aside
BOCC MEETING AUGUST 20, 2025 PAGE 5 OF 6
while the Roth East and Horse Ridge sites remain under consideration. The Moon Pit
site was withdrawn from consideration by its owners. He advocated for considering
more than one site for the sake of a competitive process.
EXECUTIVE SESSION: None
ADJOURN:
Being no further items to come before the Board, the meeting was adjourned at 10:39 am.
- VV ---
DATED this Day of 2025 for the Deschutes County Board of Commissioners.
ATTEST:
RECORDING SECRETARY
ANTHONY DEBONE, CHAIR
PATTI ADAIR, VICE CHAIR
PHIL CHANG, COMMISSIONER
BOCC MEETING AUGUST 20, 2025 PAGE 6 OF 6
�vIES CO
BOARD OF
-•�,,,� COMMISSIONERS
MEETING DATE: August 20, 2025
SUBIECT: Public Hearing on an application submitted by BLC LLC to rezone 240 acres from
Exclusive Farm Use to Multiple Use Agricultural with a corresponding
Comprehensive Plan designation change from Agriculture to Rural Residential
Exception Area
RECOMMENDED MOTION:
Following the hearing, the Board may choose to:
• Continue the hearing to a date certain;
• Close the oral portion of the hearing and leave the written record open to a date
and time certain;
• Close the hearing and commence deliberations; or
• Close the hearing and schedule deliberations for a date and time to be
determined.
BACKGROUND AND POLICY IMPLICATIONS:
The Board of Commissioners will hold a public hearing to consider a Comprehensive Plan
Amendment and Zone Change request submitted by BCL LLC. The applicant requests to
change the zoning designation of 240 acres from Exclusive Farm Use (EFU) to Multiple Use
Agricultural (MUA10). The applicant also requests a concurrent change in the
Comprehensive Plan designation from Agriculture to Rural Residential Exception Area. The
full record is available at the following link: https://www.deschutes.org/cd/page/247-24-
000097-pa-247-24-000098-zc-bcl-Ilc-comprehensive-plan-amendment-and-zone-change
BUDGET IMPACTS:
None
ATTENDANCE:
Audrey Stuart, Associate Planner
FIT, IV4[a] ;7_101011J►Ti
TO: Board of County Commissioners
FROM: Audrey Stuart, Associate Planner
DATE: August 12, 2025
SUBJECT: August 20" Public Hearing for BCL LLC Plan Amendment and Zone Change
The Board of County Commissioners ('Board") will conduct a public hearing on August 20, 2025, to
consider a Comprehensive Plan Amendment and Zone Change (file nos. 247-24-0000097-PA, 98-ZC)
affecting a total of 240 acres.
I. BACKGROUND
The applicant, BCL LLC, is requesting a Comprehensive Plan Amendment to re -designate the subject
properties from Agriculture to Rural Residential Exception Area and a Zoning Map Amendment to
rezone the properties from Exclusive Farm Use - Tumalo-Redmond-Bend subzone (EFU-TRB) to
Multiple Use Agricultural - 10 Acre Minimum (MUA-10). The subject property consists of four tax
lots, which are located to the north and south of Highway 20, approximately 0.26 miles east of the
Bend Urban Growth Boundary. The subject property primarily consists of undeveloped land,
however, one of the tax lots is developed with a dwelling and one tax lot is developed with a solar
voltaic array (solar farm). Prior to the initial hearing, the applicant submitted a Modification of
Application (land use file no. 247-25-000021-MA) to reduce the size of the area to be rezoned from
259 to 240.17 acres.
The applicant argues that the subject property does not meet the definition of "agricultural land"
due to its poor soil quality, and there is no history of farm use on the subject property. For these
reasons, the applicant states a mistake was made when the propertywas originally zoned and MUA-
10 zoning is more appropriate.
The soils map available from Natural Resources Conservation Service (NRCS) indicates the soil on
the subject property is a complex that includes various classes of soils, as rated by the Land
Capability Classification. The applicant provided a memorandum from a certified soil scientist, who
concluded that the subject property predominantly consists of Class 7 and Class 8 soils, which are
not suitable for farm use. Additionally, the applicant has provided a traffic study, and findings within
the burden of proof that demonstrate compliance with state and local requirements and policies.
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
t®�(541)388-6575 @cdd9deschutes.org ®www.deschutes.org/cd
11. PUBLIC COMMENTS
Seven members of the public submitted comments in opposition prior to the initial hearing.
Comments cited concerns regarding increased traffic, impacts to wildlife, increased residential
density, and the existing solar array on the subject property.
The written record was left open following the close of the initial hearing, and the applicant and
Central Oregon LandWatch submitted additional written comments.
III. HEARINGS OFFICER RECOMMENDATION
The Deschutes County Hearings Officer held a public hearing on May 9, 2025. The written record
was proposed to be left open for seven (7) days for new evidence and testimony, seven (7) days for
rebuttal testimony, and seven (7) days for the applicant's final legal argument. However, a submittal
from the applicant during the initial seven-day new evidence period was not uploaded in a timely
manner. To ensure all parties had a sufficient chance to respond, staff recommended that the
Hearings Officer extend the open record period. In response, the Hearings Officer issued an order
extending the rebuttal period to a total of 14 days. Therefore, the open record period consisted of
seven (7) days for new evidence and testimony, 14 days for rebuttal testimony, and seven (7) days
for the applicant's final legal argument.
On July 9, 2025, the Hearings Officer issued a recommendation for approval of the proposed Plan
Amendment and Zone Change evaluating compliance with all applicable review criteria.
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. Per DCC Section 22.20.040(D), the review of the proposed quasi-judicial Plan
Amendment and Zone Change is not subject to the 150-day review period typically associated with
land use decisions. The record is available for inspection at the following link:
https://www deschutes or /g cd/page/247-24-000097-pa-247-24-000098-zc-bcl-Ilc-comprehensive-
plan-amendment-and-zone-change.
V. NEXT STEPS
At the conclusion of the public hearing, the Board can choose one of the following options:
• Continue the hearing to a date and time certain;
• Close the oral portion of the hearing and leave the written record open to a date and time
certain;
• Close the hearing and commence deliberations; or
• Close the hearing and schedule deliberations for a date and time to be determined.
ATTAC H M E NT(S):
1. Area Map
Page 2 of 3
2. Hearings Officer Recommendation
Page 3 of 3
Mailing Date:
Wednesday, July 9, 2025
RECOMMENDATION AND FINDINGS OF
THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBER: 247-24-000097-PA, 247-24-000098-ZC, 247-25-000021-MA
HEARING DATE: May 9, 2025
HEARING LOCATION: Videoconference and
Barnes & Sawyer Rooms
Deschutes Services Center
1300 NW Wall Street
Bend, OR 97708
SUBJECT PROPERTY/
OWNER: Mailing Name: ERICKSON-WARD LAND TRUST LLC
Map and Tax lot: 1712360000100
Account: 109118
Situs Address: 21875 NEFF RD, BEND, OR 97701
Mailing Name: ERICKSON-WARD LAND TRUST LLC
Map and Tax lot: 1712360000400
Account: 109115
Situs Address: 21850 HWY 20, BEND, OR 97701
Mailing Name: ERICKSON-WARD LAND TRUST LLC
Map and Tax lot: 1712360001000
Account: 111676
Situs Address: 21700 BEAR CREEK RD, BEND, OR 97701
Mailing Name: ERICKSON-WARD LAND TRUST LLC
Map and Tax lot: 1712360000900
Account: 111677
Situs Address: 62098 WARD RD, BEND, OR 97701
APPLICANT: BCL LLC
APPLICANT ATTORNEY: Christopher Kobak
REQUEST: The Applicant requested approval of a Comprehensive Plan Amendment to
change the designation of the Subject property from Agricultural (AG) to Rural
Residential Exception Area (RREA). The Applicant also requested a
corresponding Zone Change to rezone the Subject Property from Exclusive Farm
Use — Tumalo-Redmond-Bend subzone (EFU-TRB) to Multiple Use Agricultural
(MUA1 O).
STAFF CONTACT: Audrey Stuart, Associate Planner
Phone: 541-388-6679
Email: AudrStuai-toadeschutes.org
RECORD: Record items can be viewed and downloaded from:
https://www.descliutes. org/ed/page/247-24-000097-pa-247-24-000098-zc-bcl-llc-
comprehensive-plan-amendment-and-zone-chanize
L APPLICABLE CRITERIA
Title 18 of the Deschutes County Code, the County Zoning Ordinance:
Chapter 18.04, Title, Purpose, and Definitions
Chapter 18.16, Exclusive Farm Use Zones (EFU)
Chapter 18.32, Multiple Use Agricultural (MUA 10).
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 33, Agricultural Land
Oregon Revised Statutes (ORS)
Chapter 215.010, Definitions
Chapter 215.211, Agricultural Land, Detailed Soils Assessment
II. BASIC FINDINGS
LOT OF RECORD: The submitted Burden of Proof includes the following response regarding lot of record
status:
"Deschutes County determined that Tax Lots 100, 300, and 400 (combined with Tax Lot 1100) were a lot
of record in LR-91-54 and LR-91-55, as corrected by Planning Staff Letter dated December 17, 1998.
Exhibit 1. Deschutes County determined that Tax Lot 1000 was a lot of record in 247-20-000077-LR.
Exhibit 2. "
The application materials also include a request for Lot of Record Verification for Tax Lot 900 and provide an
analysis on the deed history of this tax lot. However, Staff noted (Staff Report, pages 2 & 3) that a Lot of Record
Verification is a separate application type that requires its own form and fee, which were not submitted. Staff
(Staff Report, pages 2 & 3) concluded that a lot of record analysis for Tax Lot 900 was not required in order to
process Applicant's current Comprehensive Plan Amendment and Zone Change requests.
DCC 22.04.040(B)(1) specifies the types of land use applications that require lot of record verification, and a
Comprehensive Plan Amendment and Zone Change is not listed. In the Powell/Ramsey (PA-14-2, ZC-14-2)
decision, a County Hearings Officer held to a prior zone change decision (Belveron ZC-08-04; page 3) that a
property's lot of record status was not required to be verified as part of a plan amendment and zone change
application. Rather, an applicant would be required to receive lot of record verification prior to any development
on the property. The Hearings Officer concurs with Staff s analysis and finds that this criterion does not apply.
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 2 of 51
SITE DESCRIPTION: The properties included in Applicant's proposal in this case (the "Subject Property")
consists of four tax lots, which are summarized in the table below.
Tax Lot
Size (Acres)
100
100.89
400
38.06
900
43.89
1000
57.33
Applicant's Burden of Proof for file 247-25-00002 1 -MA provides the following description of the Subject
Property:
"The subject tract is designated agricultural and zoned EFU. However, there is no history of any
agricultural use. As the Applicant will explain more below, the tract is comprised predominantly of 58C
soils which are not considered suitable for agricultural uses. Tax Lots 900, 1000, and 400 are, with the
exception of one dwelling recently constructed on Tax Lot 1000, vacant unirrigated parcels with no use.
Each tax lot has only a few trees and is primarily comprised of sagebrush, rabbit brush, and bunch
grasses. No part of Tax Lot 900 is irrigated, and it has no water rights. Tax Lot 100, like similar parcels
north and west, is developed with a solar farm that consumes all but the southeast corner of the lot, which
portion is vacant. No part of Tax Lot 100 is irrigated, nor does it have any water rights.
The subject tract extends east from Ward Road west to Erickson Road. The tract extends north to Neff
Road and south to Bear Creek Road. The following aerial photograph shows the approximate locations of
the subject property and the general character of the property and surrounding area. "
The parcels making up the Subject Property are located east of Bend, to the north and south of Highway 20. At its
closest point, the Subject Property is approximately 0.26 miles from the City of Bend's Urban Growth Boundary
(UGB). The Subject Property consists primarily of undeveloped land, with two exceptions. Tax Lot 1000 is
developed with a Lot of Record Dwelling which was approved through Deschutes County file 247-21-000119-
CU. Tax Lot 100 is developed with a solar voltaic array ("Solar Array") that was originally approved through
Deschutes County files 247-15-000170-CU, 171-SP and have subsequentially been modified. The fenced area
developed as the Solar Array encompasses an area of approximately 62.6 acres.
PROPOSAL: The Applicant requested approval of a Comprehensive Plan Map Amendment to change the
designation of the Subject Property from an Agricultural ("AG") designation to a Rural Residential Exception Area
("RREA") designation. The Applicant also requested approval of a corresponding Zoning Map Amendment to
change the zoning of the subject properties from Exclusive Farm Use (`EFU") to Multiple Use Agricultural
("MUA10"). The Applicant asked that Deschutes County change the zoning and the plan designation because the
Subject Property does not qualify as "Agricultural Land" under Oregon Revised Statutes ("ORS") or Oregon
Administrative Rules ("OAR") definitions.' The Applicant proposed that no exception to Statewide Planning Goal
3, Agricultural Land was required because the Subject Property is not "agricultural land."
The original proposal included five tax lots, with a total area of 259 acres. On January 8, 2025, the Applicant
submitted a Modification of Application (Deschutes County file 247-25-000021-MA). This modified the proposal to
reduce the size of the area to be rezoned, by removing Tax Lot 300 on Assessor's Map 17-12-36. The materials for
247-25 -00002 1 -MA also supplemented the analysis provided in the original application materials regarding
agricultural lands and provided a professional soil report.
1 As defined in OAR 660-033-0020, 660-033-0030
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 3 of 51
Submitted with the application is a review of the Subject Property soil characteristics, titled Bear Creek Analysis of
Agricultural Land (hereafter referred to as the "Red Hills Soils Report") prepared by soil scientist Andy Gallagher,
CPSSc/SC of Red Hill Soils. The Applicant also submitted a traffic analysis prepared by Ferguson and Associates,
Inc. dated February 28, 2025, hereafter referred to as the "Traffic Study." Additionally, the Applicant submitted an
application form, a Burden of Proof statement (the "Burden of Proof'), and other supplemental materials, all of
which are included in the record for the subject applications.
SOILS: According to Natural Resources Conservation Service ("NRCS") maps of the area, the Subject Property
contains three different soil types as described below. The Subject Property contains 58C — Gosney-Rock
Outcrop-Deskamp complex, 36B — Deskamp loamy sand (3 to 8 percent slopes) and 36A — Deskamp loamy sand
(0 to 3 percent slopes). The 36A and 36B soil units are defined as high -value soil by DCC 18.04 when it is
irrigated. The 58C soils complex is not defined as high -value farmland, regardless of irrigation.
The applicant submitted the Red Hills Soils Report (exhibit to 247-25-000021-MA application materials), which
was prepared by a certified soils scientist and soil classifier. The purpose of the Red Hills Soils Report was to
inventory and assess the soils on the Subject property and to provide additional insight related to the NCRS soil
classifications and ratings. Additional discussion of the Red Hills Soils Report can be found in the Preliminary
Findings section titled Certification of Soils Report (III.A.2).
The NRCS soil map units identified on the properties are described, for background information, below.
36A Deskamp loamy sand, 0 to 3 percent slopes: This soil complex is composed of 85 percent Deskamp
soil and similar inclusions, and 15 percent contrasting inclusions. The Deskamp soils are somewhat
excessively drained with a rapid over moderate permeability, and about 5 inches of available water capacity.
Major uses of this soil type are irrigated cropland and livestock grazing. The agricultural capability rating
for 36A soils are 3S when irrigated, and 6S when not irrigated. This soil is high -value when irrigated.
Approximately 33 percent of the subject parcel is made up of this soil type.
36B Deskamp loamy sand, 3 to 8 percent slopes: This soil is composed of 85 percent Deskamp soil and
similar inclusions, and 15 percent contrasting inclusions. This soil is somewhat excessively drained, with
rapid permeability and an available water capacity of approximately 3 inches. The major uses of this soil
are irrigated cropland and livestock grazing. This Deskamp soils have a capability rating of 6E when
unirrigated, and 3E when irrigated. This soil type is considered high -value when irrigated. The 36B soils
are limited to the northern, irrigated portion of the site and comprise approximately 0.2 percent of the
property.
58C Gosney-Rock Outcrop-Deskamp complex, 0 to 15 percent slopes: This soil type is comprised of 50
percent Gosney soil and similar inclusions, 25 percent rock outcrop, 20 percent Deskamp soil and similar
inclusions, and 5 percent contrasting inclusions. Gosney soils are somewhat excessively drained with rapid
permeability. The available water capacity is about 1 inch. Deskamp soils are somewhat excessively drained
with rapid permeability. Available water capacity is about 3 inches. The major use for this soil type is
livestock grazing. The Gosney soils have ratings of 7e when unirrigated, and 7e when irrigated. The rock
outcrop has a rating of 8, with or without irrigation. The Deskamp soils have ratings of 6e when unirrigated,
and 4e when irrigated. Approximately 66 percent of the subject properties is made up of this soil type, all
located within the northern parcel.
SURROUNDING LAND USES: The general surrounding area of the Subject Property is defined by the City of
Bend's Urban Growth Boundary ("UGB") to the west and then a mix of residential and agricultural uses
spreading out to the north, east, and south. Adjoining properties are zoned MUA10 and EFU, and range in size
and type of development. The general surrounding area includes small-scale farms that predominantly consist of
irrigated fields and pasture, and are located to the east of the Subject Property. The area to the west of the Subject
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 4 of 51
Property provides a transition from the UGB to rural land use, and is developed with a number of uses such as
solar farms, a church, a fire station, and a public park.
Applicant provided (Burden of Proof) the following description of adjacent properties:
"West: Tax Lot 900 fronts Ward Road. West of Ward Road, the majority of'properties are zoned MUA10
and not used for agricultural purposes. The property that abuts Ward Road on the west is an approximate
53-acre tract consisting of three tax lots, 17-12-36, Tax Lots 1400, 1600, and 1601. In 2018, in Files 24
7-18-000485 and 24 7-18-000486, the County approved a change in the designation to Rural Residential
Exception area and a change in the zoning to MUA10. In 2021, in Files 247-22-000353 and 354, the
County approved the same redesignation and zone change on a parcel identified as 18-12-02, Tax Lot
201. Northeast of Tax Lot 900, the parcel immediately east of Tax Lot 900 (17-12-36 Tax Lot 800), is a
vacant EFU-TBR. The other properties east of the Subject Property are either MUA10 with dwellings or
EFUparcels and most include dwellings and hobby farms uses.
The properties northwest of the Subject Property are a mixture of MUA10 land recently rezoned, EFU
land developed with commercial solar farms and institutional uses such as a church, a Christian Center,
and a Pacific Power facility. Just north of Highway 20 and west of Hamby Road, in 2022, the County
approved a similar request involving a 94-acre tract that consisted of two parcels identified as 17-12-35,
Tax Lots 1200 and 1201. There are a, few large acre dwellings as well. There does not appear to be any
active farming operations within close proximity to the Subject Property to the northwest.
North: The properties north of Tax Lot 900 are the same as that east of Tax Lot 100. They are EFU and
MUA-10 zoned parcels with the above -described commercial, institutional, and residential uses. The
property immediately north. of Tax Lot 100 is a 118-acre parcel zoned EFU and MUA-10. It has a
dwelling on pal i and a large solar farm on the remainder. Northeast of Tax Lot 100 the properties are
predominantly all MUA-10 zoned parcels developed with residential uses.
South: The land south and southeast of Tax Lot 900 is zoned MUA-10 and is developed with single-family
homes. Most of the parcels are within Dobbins Estate, a large acre subdivision. South of Tax Lot 100 the
properties are primarily EFUzoned parcels developed with large acre residential dwellings. One parcel
appears to have a small hobby horse farm on it. There are no active farming operations.
East: The properties east of Tax Lot 900 are predominantly EFU zoned with most being less than 20
acres and many less than 10 acres. The primary development pattern is large acre residential uses with
one horse farm noted above. One property directly east of Tax Lot 1000 appears to be developed with a
personal moto-cross course. East of Tax Lot 100 the properties lying east of Erickson Road are
predominantly all MUA-10 zoned parcels developed with large acre residential estate -type dwellings.
There is an irrigation canal that runs diagonally through some of those properties. "
PUBLIC AGENCY COMMENTS: The Planning Division mailed notice on March 12, 2024, to several public
agencies and received the following comments:
Deschutes County Senior Transportation Planner, Tarik Rawlings, March 5, 2025, Comments
I've reviewed the revised TPR analysis prepared by Ferguson & Associates, Inc dated February 28,
2025. Reflective of the applicant's pending Modification of Application file (no. 247-25-000021-MA) to
remove Tax Lot 300 from the scope of the project (resulting in a 12.41-acre reduction in acreage from the
original application), the revised analysis provides updated information related to the total—240.17 acres
of subject property. The full build -out scenario included in the revision (considering redevelopment of the
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 5 of 51
existing solar farm portions of the subject property) aligns with staffs comments from 6111124. The
report's inclusion of modified acreage and assumed development credit.for one existing single-family
dwelling complies with additional comments from staff's 6/I1!24 email correspondence regarding the
MUA10 Zone's worst case scenario analysis. 1 agree with the assumptions, methodologies, and
conclusions outlined in the revised analysis.
Deschutes County Senior Transportation Planner, Tarik Rawlings, June 11, 2024, Comments
Thank you for forwarding the revised TPR analysis produced by Ferguson & Associates, Inc., dated April
22, 2024.
While the revised TPR analysis has addressed some of the transportation -related comments issued on
behalf of the County Road Department on March 29, 2024, there are some outstanding issues with the
revised analysis that should be addressed by the applicant in order to comply with TPR:
1. The translation of the `farm manufacturing" analysis into the category of `farm stand" is not a
reasonable conclusion and the revised analysis does not clearly demonstrate how a `farm stand"
derived from the 18.16.025(1)(1-2) `facility for the processing offarm crops" (and termed `farm
manufacturing " at multiple points in the report) constitutes a reasonable worst case scenario for
outright EFU use categories even when compared to other uses within DCC 18.16.025. The
applicant should provide demonstrable analysis (derived from real local or regional examples of
farm crop'processing facilities) showing how this use category constitutes a reasonable worst
case scenario for outright EFU use categories.
2. At the conclusion of the "Trip Generation Forecast — Outright Permitted Uses — Land Use
Scenario for Existing EFU Zoning" section of the revised analysis (beginning on page 3 of the
revised report), the applicant concludes with an assumption that three of the five parcels making
up the subject properties would each respectively support a dog training class use, a farm stand
use, and a Winery/Farm Brewery/Cider business use. The remaining two parcels within the
subject properties are not included within this analysis and the applicant must account for these
additional 2 parcels in their reasonable worst case scenario analysis. If the applicant continues
their revisions under the analytical framework that each of the 5 individual lots within the subject
properties would support different reasonable worst case scenario uses, then the applicant must
clearly state which use is assigned to which tax lot. Further, that analysis should be tailored to
the unique aspects of each individual lot such as acreage and location. Alternatively, if the
applicant decides to revise their report to analyze all 5 lots as one contiguous property for the
purpose of reasonable worst case scenario analysis, that analysis should focus on one reasonable
worst case scenario use category across the contiguous 5 lots. Staff notes that, of the identified
EFU reasonable worst case scenario uses included on pages 3-6 of the revised report, winery or
dog training classes are likely the highest trip -generative uses. For the purposes of quantifying
the anticipated impacts from the EFU reasonable worst case scenario uses, staff encourages the
applicant to base any methods and assumptions of these uses on real local or regional examples.
3. Staff disagrees with the applicant's assertion that the existing solar farm would not be
redeveloped as part of the reasonable worst case scenario analysis for the requested MUA10
Zone. As the requested MUA10 Zone is outright permissive ofsingle family dwellings, stafffinds
that it would be reasonable to assume that the existing solar farm would be redeveloped with
single-family dwellings as an economically -advantageous land use and the applicant should
produce revised analysis reflecting the fill build -out of residential single-family dwellings as the
reasonable worst case scenario for the requested MUA10 Zone.
4. Pursuant to bullet #3, above, staff also requests that the applicant revise the single-family
dwelling analysis for the requested MUA10 Zone included in Table S (page 8 of the revised
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 6 of 51
report) to reflect a total "Number o,"Single-Family Residentials " of 25 (revised from 13). Based
on the acreage of the subject properties (252.58 acres), the ability to redevelop the existing solar
farm, and the purpose of this exercise as a scenario forecast for trip generation, staff finds that
the subject properties would be able to support a maximum of 25 single-family dwellings as the
reasonable worst case scenario for the requested MUA10 Zone.
5. Pursuant to bullets #3 and #4, above, the applicant must revise Table 7 (page 9 of the revised
report) to reflect a total of 25 single-family dwelling units for the purpose of P.M. Peale hour and
daily weekday trip generation forecasting.
Deschutes County Senior Transportation Planner, Tarik Rawlings, March 29, 2024, Comments
I have reviewed the transmittal materials.for 247-24-000097-PA, 98-ZC_for properties totaling
approximately 259 acres to change the Comprehensive Plan designation from Agriculture (AG) to Rural
Residential Exception Area (RREA) and the zoning from Exclusive Farm Use (EFU) to Multiple Use
Agricultural (MUA10). The properties are within the Exclusive Farm Use (EFU) Zone, and the Airport
Safety (AS) and Landscape Management (LM) Combining Zones associated with the following identifying
property information. -
Mailing Name: ERICKSON-WARD LAND TRUST LLC Mailing Name: ERICKSON-WARD LAND TRUST LLC
Map and Taxlot: 1712360000100 Map and Taxlot: 1712360001000
Account:109118 Account:111676
Situs Address: 21875 NEFF RD, BEND, OR 97701 Situs Address: 21700 BEAR CREEK RD, BEND, OR 97701
Mailing Name: ERICKSON-WARD LAND TRUST LLC Mailing Name: ERICKSON-WARD LAND TRUST LLC
Map and Taxlot: 1712360000300 Map and Taxlot: 1712360000900
Account:109116 Account:111677
Situs Address: **NO SITUS ADDRESS** Situs Address: 62098 WARD RD, BEND, OR 97701
Mailing Name: ERICKSON-WARD LAND TRUST LLC
Map and Taxlot: 1712360000400
Account:109115
Situs Address: 21850 HWY 20, BEND, OR 97701
I have reviewed traffic analysis provided by Ferguson & Associates, Inc., dated February 2, 2024,
included as Exhibit 12 of the submitted application materials. The analysis included within the submitted
Ferguson & Associates, Inc. report does not comply with the relevant provisions of OAR 660-012-0060,
known as the Transportation Planning Rule (TPR). In order to determine whether the proposal will
produce a significant effect on transportation facilities, the applicant must revise their traffic analysis to
comply with TPR including OAR 660-012-0060(1)(a-c). Due to the scope of the proposal, staff notes that
the applicant's revised analysis must comply with the requirements for a Traffic Impact Analysis (TIA)
(DCC 18.116.310(C)(3)(c)) outlined in DCC 18.116.310 including the minimum TIA requirements at
DCC 18.116.310(G)(1-16), the study time frame requirements at DCC 18.116.310(E), the operation and
safety standards at DCC 18.116.310(H) (20 year study time frame) and the mitigation standards at DCC
18.116.310(1), should any mitigations be required as the result of the revised analysis. The TIA should
include a review of existing and future levels of service (LOS), average vehicle delay, and
volume%apacity (VIC) ratios associated with the subject properties and surrounding project area. The
VIC ratios would be applicable to any ODOT facilities included in the TIA.
Regarding the reasonable worst case scenario(s) put forward in the submitted traffic analysis, staff
disagrees with the scenario proposed for the existing EFU Zone. For the existing EFU Zoning, staff does
not agree that `: farm use" or farm crop processing is the reasonable worst case scenario associated with
the EFU Zone and notes that "winery " has been used in past applications for PAIZC proposals from
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 7 of 51
EFU to MU410. The assertion that "farm use " constitutes the reasonable worst case scenario for the
EFU Zone is antithetical to the analysis provided in the submitted Burden of Proof statement,
demonstrating that the subject properties are not currently suited for farm use.
The properties have frontage on Highway 20, Bear Creek Road, Erickson Road, and Neff Road. Highway
20 is a public road maintained by the Oregon Department of Transportation (ODOT), functionally
classified as a Primary Arterial Highway. Staff recommends the applicant work closely with
representatives from ODOT fog° any access permitting or other requirements related to Highway 20.
Based on ODOT's jurisdiction over Highway 20, the access permit requirements of DCC 17, 48.210(A) do
not apply. Bear Creek Road and Erickson Road are Public roads maintained by Deschutes County and
functionally classified as Rural Collectors. Neff Road is a public road maintained by Deschutes County
and functionally classified as a Rural Arterial. If the applicant intends to utilize access from Bear Creek
Road, Erickson Road, or Neff Road, the applicant must address the provisions of DCC 17.48.210(B)
related to access on Rural Collectors and Arterials.
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $5, 603 per
p.m. peak hour trip. As the plan amendment/zone change by itself does not generate any traffic, no SDCs
apply at this time. SDCs will be assessed based on development of the property. When development
occurs, the SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not
applicable, then the SDC is due within 60 days of the land use decision becoming final.
THE PROVIDED SDC RATE IS ONLY VALID UNTIL JUNE 30, 2024. DESCHUTES COUNTY'S SDC
RATE IS INDEXED AND RESETS EVERYJULY 1. WHENPAYING AN SDC, THE ACTUAL AMOUNT
DUE IS DETERMINED BY USING THE CURRENT SDC RATE AT THE DATE THE BUILDING
PERMIT IS PULLED.
.BEGINNING JULY 1, 2024, THE SDC RATE WILL INCREASE AND LAST UNTIL JUNE 30,
2025. AGAIN, THIS IS INFORMATIONAL ONLYAS SDCS ARE NOT ASSESSED UNTIL
DEVELOPMENT OCCURS.
Oregon Department of Transportation, Principal Planner Ken Shonkwiler
Thank you for the opportunity to review 247-24-000097-PA, 247-24-000098-ZC: Erickson Ward Zone
Change. Our comments are attached in a comment log and I also provided a letter on the applicant's
TPR assessment memo with regards to OAR 660-012-0060.
Oregon Department of Agriculture, John Harrang
No involvement needed by ODA Food Safety Program.
Department of Land Conservation and Development Natural Resource Specialist Amanda Punton
Good to know, thanks. Do you anticipate including finding on how new uses allowed by the proposed
rezoning will affect the Goal 5 scenic resource? There is mention of the combining zone in the applicant's
material but nothing about the Goal 5 origins of the combining zone. This is the piece of OAR chapter
660, division 23 that speaks to new uses that could impact a significant Goal 5 resource.
OAR 660-023-0250(3)(b)
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 8 of 51
(3) Local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA
affects a Goal 5 resource. For purposes of this section, a PAPA _would affect a Goal 5 resource only if.• . .
(b) The PAPA allows new uses that could be conflicting uses with a particular significant Goal 5 resource
site on an acknowledged resource list; or• .. .
There is a good chance the county will find that no additional Goal 5 work is needed. I'm happy to
discuss further if you like.
The following agencies did not respond to the notice: Avion Water Company, Bend -La Pine School District,
Bend Fire Department, City of Bend Growth Management, Bend Municipal Airport, City of Bend Planning
Department, Central Oregon Irrigation District, Deschutes County Assessor, and Deschutes County Road
Department.
PUBLIC COMMENTS: The Planning Division mailed notice of the application to all property owners within
750 feet of the subject property on March 12, 2024. The Applicant also complied with the posted notice
requirements of Section 22.24.030(B) of Title 22. The Applicant submitted a Land Use Action Sign Affidavit
indicating the Applicant posted notice of the land use action on June 11, 2024.
Christopher Koback appeared at the Hearing and testified on behalf of Applicant. Robin Hayakawa appeared at
the Hearing and testified on behalf of COLW. Submissions were made into the public record, prior to the
Hearing, and are set forth below. Issues raised in the public comments below related to relevant approval criteria
are addressed in the findings of this recommendation.
Rory Isbell Central Oregon LandWatch, March 12, 2024
"Central Oregon LandWatch is concerned whether file no. 247-24-000097-PA198-ZC, an application that
proposes to redesignate and rezone 259 acres of agricultural land for residential use, meets the
applicable criteria. Please notes its of any decisions or hearings on the application. Our address is 2843
NW Lolo Drive Ste 200, Bend, OR 97703. "
Jordi Stiffler, March 19, 2024
"I'm writing on the proposed land use action regarding the applicant, which I believe is Mr. Steele and
his wife Shelby, petitioning to change their property, 21700 Bear Creek Rd, from Agricultural to Rural
Residential Exception Area (RREA).
I am contesting the right for the applicant to change the zoning. Two years ago the county sent out letters
to everyone in the vicinity of the applicants property when he wanted to split the land into separate tax
lots. When I talked to the county planner at that time he assured me that the land was zoned only for one
residential house and that other residential homes could not be built on it. The neigbors, including myself,
had to put up with 18 months of construction with dirt, heavy equipment, litter, excessive traffic, noise.
The land that they built on was home to coyotes, deer, and other wildlife which has pretty much
disappeared.
The narrow Ward Rd can't sustain more traffic to include a new residential area. The road is dangerous
as Ward Rd is used by the car dealers for test drives at high rates of speed, and young drivers who fly
down Ward Rd to "catch air" in the rise of the road heading east. I have seen numerous dogs and deer
get killed on that road in front of my house. The neighbor hood bought our houses outside the urban
boundary area for one main purposes ... acreage without multiple housing infringing on its. "
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 9 of 51
Audrey Henry, March 20, 2024
I am writing in response to the proposed land use application paperwork I received recently. I am an
adjacent property owner and I oppose this proposal for a number of reasons.
This land has been a wildlife habitat for many years and most recently has been home to red fox who
have finally come back to this area. There are deer who live there and many other wildlife as well. I
moved here over 15 years ago for the peacefulness and serenity and I would hate to see that taken away.
Recently, I was approached by a representative of the gas company that has an easement and line going
through that property. He stated one house needed to be removed due to the close proximity of the gas
line. It appears due to the new house construction on 21700 Bear Creek Road, they are over the amount
of housing allowed for that gas line so I am concerned that after recently being asked to sell nay home to
them so it could be vacated that we would now have to deal with additional homes, businesses here by the
gas line.
I will reach out to you via phone and in person soon to,further discuss. "
Courtney Eastwood, March 20, 2024
I am writing this email to inform you that as a property owner on Bear Creek Road - I am completely
opposed to this change in zoning. There is already a housing development going in on Bear Greek that is
going to bring more traffic and cars. Also the property across the street from the current development
was just approved to also rezone to Multiple Use. This open land should be protected. We have lots of
wildlife including deer, hawks, an eagle, and other critters that currently utilize these fields for their
survival. Also I, and my neighbors, purchased land because we wanted land - not to stare at homes and
increased traffic. Please re-evaluate how much land is going to be developed in this area and how much
more you are proposing. "
Amy and Matt Ruff, March 27, 2024
"We are responding to the mail correspondence in regards to File #247-24-000097-PA and File #247-
24-000098-ZC. As residents of Filly Court, we are opposed to the change of designation from
Agricultural (AG) to Rural Residential Exception Area (RREA) and the rezoning of Exclusive Farm Use
(EFU-TRB) to Multiple Use Agricultural (MUA10). We feel the current designations are appropriate as
is and there should be no further opportunity for building on those pieces of land.
With many people in the city and in the county wanting to expand the urban growth boundary, we feel we
need to hold the line firm. Part of the reason we chose to move to this area was because of the open
space. These changes in designation and rezoning are concerning due to the unknown type of housing
that may go in. We are DEFINITELY not infavor of managed campsites for the homeless or, for low
income properties that could lower the value of the nearby homes and be a safety concern. Furthermore,
additional residences could increase traffic.
It is difficult not knowing the fidl intentions of the land owner. We would appreciate transparency on this
matter and would like to be made aware of any hearings that relate to these file numbers. "
Rob DuValle, March 21, 2024
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 10 of 51
"Why would they want to rezone the land where they just put the solar panel farm in? That is concerning
from an impact on my quality of life/property value as a neighbor.
The whole land use process is very confusing from a community member perspective. I may be totally
supportive or not depending on what actually goes in the ground, but without that information it leaves
me without the ability to proved an informed response.
The list ofpotential `conditional uses' has many that I would be opposed to. Shouldn't the property owner
be required to declare their intentions upfront and be legally held to them upon approval? That would
seem to be the honorable way to do business. Please put me on the notification lists you mentioned.
NOTICE REQUIREMENT: On April 17, 2025, the Planning Division mailed a Notice of Public Hearing to all
property owners within 750 feet of the Subject Property and public agencies. A Notice of Public Hearing was
published in the Bend Bulletin on Sunday, April 13, 2025. Notice of the first evidentiary hearing was submitted to
the Department of Land Conservation and Development on April 3, 2025.
REVIEW PERIOD: According to Deschutes County Code 22.20.040(D), the review of the proposed quasi-
judicial plan amendment and zone change application is not subject to the 150-day review period.
III. FINDINGS & CONCLUSIONS
A. PRELIMINARY FINDINGS
1. Procedural Issues
Two record related procedural issues were raised in this case. Both issues relate to Central Oregon Land Watch
("COLW") submissions. The first dispute relates to a COLW May 23, 2025 submission and the second relates to
a COLW June 2, 2025 submission.
A brief background discussion should assist in understanding the Hearings Officer's findings related to both
record related issues. At the conclusion of the May 9, 2025 public hearing (the "Hearing") the Applicant
requested the record remain open for what is often referred to, in Deschutes County, as the "standard 7/7/7 open -
record period." The Hearings Officer, at the Hearing described the "standard 7/7/7 open -record period" as
allowing new evidence to be submitted by any interested person during the first 7 day open -record period ("1" 7-
day open -record period"), evidence in rebuttal to evidence submitted during the initial 7 day open -record period
("2nd 7-day open -record period") and an applicant has a right to submit final argument during the third open -
record period ("3'd 7-day open record period").
The Hearings Officer announced, at the conclusion of the Hearing, the following open -record periods:
Submission of new evidence to be received by the County until 4:00 pin on May 16, 2025 (1" 7-day
Open -Record Period); and
Submission of evidence in response to evidence submitted during the V Open -Record Period to be
received by the County until 4:00 pin on May 23, 2025 (2" d 7-day Open -Record Period); and
Submission by Applicant of its final legal argument until 4:00 pm on May 30, 2025 (3rd 7-day Open -
Record Period).
Deschutes County Planning Staff ("Staff') contacted the Hearings Officer (email sent at 4:14 pm on May 23,
2025) and informed the Hearings Officer, in part, the following:
"The applicant submitted timely testimony during the new evidence & testimony period which ended Friday,
May 16'. Unfortunately, that submittal was not uploaded to the record until today [May 23, 2025]. For this
247-24-000097' PA, 098-ZC, 247-25-000021-MA Page 11 of 51
reason, the county is requesting that the rebuttal period to be extended for a period of 7 days from the date
that a Hearings Officer Order can be sent to all parties or to some other date certain - assuming you consent
to the extended rebuttal period... "
The Hearings Officer issued a Hearings Officer Order Extending Written Record modifying the Open -Record
Periods that were announced at the Hearing. The Hearings Officer, in the Hearings Officer Order Extending
Written Record, allowed the submission of rebuttal evidence (original deadline May 23, 2025) to be submitted
until 4:00 pm on May 30, 2025 and the submission of Applicant's final argument (original deadline May 30,
2025) to be submitted until 4:00 pin on June 6, 2025.
On May 23, 2025 COLW submitted an open -record document which included the following statement:
"Central Oregon LandWatch (`LandWatch ) offers the following comments in response to Applicant's
submittal during the Hearings Officer Hearing's Open Record Period on May 9, 2025 (`2025-05-09
Applicant Submittal'). "
Applicant objected to COLW's May 23, 2025 submission and provided the following comments:
"In its May 30, 2025 letter, the applicant asserted an objection to the written testimony that Central Oregon
LandWatch (`COLW) submitted on May 23, 2025. The applicant renews that objection. In its May 23, 2025
letter, COLW acknowledged that its written testimony was directed at the applicant's May 9, 2025
submission. In an apparent effort to avoid the consequences of missing the submittal window for new
evidence in response to evidence submitted at the public hearing, COLW stated: 'LandWatch offers the
following comments in response to Applicants submittal during the open record period on May 9, 2025
(2025-05-09 Applicant Submittal.'
The May 9, 2025 Applicant submittal was not submitted during the open record period. It was submitted
prior to the public hearing on May 9, 2025. The submittal included a letter addressing the hearing issues and
the applicant's ESEE analysis chart. COLW requested that the record be kept open for new evidence to
address the evidence submitted at the public hearing. Under the order that the Hearings Officer entered, all
parties had until May 16, 2025, to submit any new evidence based on what was submitted at the public
hearing. The order allowed parties until May 23, 2025, to submit testimony and evidence strictly in rebuttal
to the new testimony and evidence submitted on May 16, 2025.
The applicant submits that under ORS 197.797, COLW was required to submit new evidence in response to
the applicant's May 9, 2025 material within the initial seven-day period, or by May 16, 2025. COLW did
not do that. It waited until May 23, 2025 to submit what it admits is testimony directed that the material
submitted before the public hearing on May 9, 2025. None of COLW's May 23, 2025 testimony is directed at
the applicant's May 16, 2025 submittal. COLW's May 23, 2025 submission should be stricken and
disregarded. "
It is clear to the Hearings Officer that COLW's May 23, 2025 submission was made during the originally
announced "rebuttal evidence" time -period (per discussion above during the 2nd Open -Record Period). It is also
clear to the Hearings Officer, based upon COLW's own statement (May 23, 2025 submission), that COLW's
evidence and arguments contained it the COLW May 23, 2025 submission was directed towards Applicant's May
9, 2025 Hearing submission. Restated, the Hearings Officer finds Applicant's primary concern about COLW's
May 23, 2025 submission was that the COLW May 23, 2025 evidence was directed towards Applicant evidence
submitted during the evidentiary Hearing (which preceded the Open -Record Period) and not directed towards
Applicant's evidence submitted during the "original" Open -Record Period (per discussion above the "original"
1st Open -Record Period).
The Hearings Officer finds that he explained the Open -Record process to all present at the Hearing and included a
statement that evidence submitted during the 2❑d Open -Record Period should be related to and in response to
evidence submitted during the 1st Open -Record Period. The Hearings Officer asked those present at the Hearing
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 12 of 51
if they had any questions related to the Hearings Officer's explanation of what was appropriate to be submitted
during each stage of the Open -Record. The Hearings Officer finds that the Applicant and COLW representatives
are experienced land use hearing participants and believes that they both understood the Hearings Officer's
expectations for Open -Record submissions.
The Hearings Officer finds that his decision related to the admission (or not) of the COLW May 23, 2025
submission is procedural in nature. The Hearings Officer finds that the appropriate legal procedural decision -
making standard is for the Hearings Officer to assess whether or not the admission would substantially prejudice
Applicant's and/or COLW's rights.
The Hearings Officer takes note that the Hearings Officer, in this case, issues a recommendation (not decision).
Pursuant to Deschutes County code the Hearings Officer's recommendation will undergo a de novo review before
the Deschutes County Commission (DCC 28.030). In this instance COLW will have the right to submit the
evidence and argument contained in its May 23, 2025 Open -Record submission to the Commission for its
consideration.
The Hearings Officer is disappointed in the approach taken by COLW and feels that technically the Hearings
Officer could reject the admission/consideration of the COLW May 23, 2025 submission. The Hearings Officer
does take note that Applicant provided, in its Final Argument Open -Record submission, a "precautionary"
response to evidence/argument raised by COLW in its May 23, 2025 submission.
The Hearings Officer finds it appropriate, in this case only, to admit and consider the COLW's untimely May 23,
2025 submission. The Hearings Officer finds such admission and consideration will not substantially prejudice
the Applicant's rights.
The Hearings Officer finds that COLW's June 2, 2025 email to Planner Stuart was filed/submitted during the
Applicant's final argument time and cannot be considered in this case.
2. Certification of Soils Report
COLW argued that the Red Hills Soils Report (soils report submitted by Applicant) was required to be certified
by the Oregon Department of Land Conservation and Development ("DLCD"). COLW (May 9, 2025, page 10)
provided the following comments:
"... OAR 660-033-0030(5)(d) provides that after October 1, 2011, `only those soil assessments certified by
the department under section (9) of this rule may be considered by local governments in land use proceedings
described in subsection (c) of this section. However, a local government may consider soils assessments that
have been completed and submitted prior- to October 1, 2011. '
Here, the Applicant has .submitted a soil assessment dated January 2, 2025, well after the effective date
provided in OAR 660-033-0030(5)(d). Furthermore, the Applicant did not submit that the soil assessment was
certified by the DLCD as complete and consistent with the Department's requirements. This application relies
heavily on the soils assessment from Mr. Gallagher in asserting that the subject property does not contain a
predominance of NRCS Class I- VI soils. Because the soils assessment was not certified by DLCD as required
under OAR " 660-033-0030(5)(d), the local government may not consider its contents as substantial evidence
of whether the subject property is agricultural land. "
COLW supplemented its above -quoted comments in an Open -Record submission, (May 30, 2025, pages 1 — 5).
The Hearings Officer includes a portion of the COLW May 30, 2025 comments below:
"In response to LandWatch's 51912025 submittal where we noted that the Applicant's Soil Assessment has not
been certified by DLCD, Mr. Gallagher of Red Hill Soils submitted a brief letter which concluded:
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 13 of 51
Because this is not a "Soil Assessment" this work does not need to be `certified by DLCD' or anyone
else. It is just an interpretive summary of the NRCS WEBSOILSUR VEY Data. No new information or
original or onsite information is provided or claimed in my report. The COLW has mistaken my report for
something it is not and has attached certain rules to it that do not apply.
2025-05-016 Applicant Submittal at p. 3-4
At issue here is whether the applicant has submitted `more detailed soils information than that contained in
the Web Soil Survey operated by the NRCS' in order to assist the county in making a determination of
whether the subject property qualifies as agricultural land. ORS 215.211(]); OAR 660-033-0030(5)(b). These
sections and OAR 660-033-0045 specifically apply to `change[s] to the designation of a lot or parcel planned
and zoned for exclusive farm use, forest use or mixed farm forest use to a non -resource plan designation and
zone on the basis that such land is not agricultural land'. OAR 660-033-0030(5)(c)(A). The purpose of
requiring DLCD review of the soil assessments that may be used to remove lands.fr•om the protections of Goal
3 is to ensure that `the soils assessment is soundly and scientifically based'. OAR 660-033-0045(6) (b) (B). If
more detailed information than what is contained in the NRCS Web Soil Survey was provided, then the
Applicant was required to request that DLCD arrange the soil assessment. ORS 215.21](1).
In this case, the Applicant has submitted `more detailed soils information' than what is contained in the
NRCS Web Soil Survey, necessitating DLCD's review and quality control. Specifically, Mr. Gallagher
provided more detailed information about the total amount of acreage contained in each NRCS soil mapping
unit within the subject property. "
Applicant, in its Final Argument (June 6, 2025, pages 5 & 6) responded to COM's comments set forth above, as
follows:
"COLW incorrectly asserts that the applicant was required to submit for DLCD approval the January 2,
2025 report prepared by Red Soils that explained the NRCS mapping for the property. COLW relied on and
quoted one subsection from OAR 660-033-0030. Specifically, COLW argues that under OAR 660-033-
0030(5)(b), if an applicant believes that a more detailed soil information, other than that contained in the
Websoils Survey operated by NRCS, would assist the county to make a better determination of whether the
land qualifies as agricultural land, the person must request that the department arrange for an assessment of
the capacity of the land by a professional soil classifier.
COLW is misconstruing the requirements in OAR 660-033-0030(5). The text, examine in context, informs
that a more detailed assessment of soil capacity is an assessment that relies on data other than that in the
NRCS maps and soil surveys. COLW did not mention OAR 660-033-0030(5)(a), which provides:
More detailed data on soil capability than is contained in the USDA Natural Resources Conservation
Service soil maps and soil surveys may be used to define agricultural land. However, the more detailed
soils data shall be related to the NRCS land capability classification system.
Clearly, the assessment referred to in OAR 660-033-0030(5)(b) is an assessment of detailed data on soil
capability not contained in the existing NRCS maps and soil surveys. Mr. Gallagher's report does not
contain data on soils from the .site or data other than what is contained in the existing NRCS maps and soils
surveys. Mr. Gallagher expressly stated in his report:
Baseline information for this report is the NRCS WEBSOILS SURVEY and does
not include an onsite evaluation or a Soil Assessment as defined by the State of
Oregon.
Mr. Gallagher is one of the certified professionals who DLCD lists on its website as a resource for people
who require an assessment of their soils. His professional statement that his report is not a soils assessment
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 14 of 51
as defined by the State is wholly credible and persuasive. Moreover, as the applicant testified, DLCD
received formal notice of the application and did not voice a position contrary to Mr. Gallagher.
Furthermore, Mr. Gallagher knows what a soil assessment under the State regulations looks like. The
applicant submitted a copy of the study that Mr. Gallegher prepared in File No. 247-000404-PA1000405-W
One can readily see a soils assessment under the regulations is based on soil data gathered from samples
taken from many locations on the property, which is then evaluated.
Mr. Gallagher's report further confirms that his work was based on the NRCS Websoils Survey and not on
more detailed soil data that one would obtain from an on -site evaluation. In section 3 of his report, Mr.
Gallagher explains only what the NRCS maps illustrate about the soil composition. In discussing soil fertility
and suitability for grazing, Mr. Gallagher relied on the existing information in the NRCS soil surveys. See
Table 5 of the NRCS Websoils Survey on page 4 of his report. He did not rely on soil data from the site. In
discussing existing and fixture availability of water for irrigation, Mr. Gallagher relied on the NRCS
information to conclude that the soil will remain Class 7 and Class 8 whether irrigated or not. None of the
issues that Mr. Gallagher addressed relied on more detailed soil data.
In response to COLW's May 9, 2025 testimony, Mr. Gallagher, an expert in the field, explained that his
report is not a soil assessment under OAR 660-003-0045 and did not have to be submitted to DLCD. The
applicant submitted an example of a soil assessment that Mr. Gallagher prepared pursuant to OAR 660-033-
0045 that was submitted to DLCD. It is easy to discern the remarkable difference between a report that relies
on soils studies that supplement the NRCS maps and a report that merely explains how the NRCS spoils
assessment works. "
The Hearings Officer finds the following are relevant subsections of OAR 660-033-0030:
(5)(a) More detailed data on soil capability than is contained in the USDA Natural Resources Conservation
Service (NRCS) soil maps and soil surveys may be used to define agricultural land. However, the more
detailed soils data shall be related to the NRCS land capability classification system.
(b) If a person concludes that more detailed soils information than that contained in the Web Soil Survey
operated by the NRCS, would assist a county to make a better determination of whether land qualifies as
agricultural land, the person must request that the department arrange for an assessment of the capability
of the land by a professional soil classifier who is chosen by the person, using the process described in
OAR 660-033-0045.
(d) This section and OAR 660-033-0045 implement ORS 215.211, effective on October 1, 2011. After this
date, only those soils assessments certified by the department under section (9) of this rule may be
considered by local governments in land use proceedings described in subsection (c) of this section.
However, a local government may consider soils assessments that have been completed and submitted prior
to October 1, 2011.
(e) This section and OAR 660-033-0045 authorize a person to obtain additional information for use in the
determination of whether a lot or parcel qualifies as agricultural land, but do not otherwise affect the
process by which a county determines whether land qualifies as agricultural land as defined by Goal 3 and
OAR 660-033-0020.
The Hearings Officer notes that OAR 660-033-0030 is titled "Identifying Agricultural Land." This section of the
Oregon Administrative Rules defines Agricultural Lands and provides guidance in how to determine if land is in
fact Agricultural Land. Subsection (5) deals, in part, with the possibility of using more detailed "soil
assessments" to demonstrate that certain land is, or is not, Agricultural Land. COLW argues that the Red Hills
Soil Report is a "soil assessment" that required Applicant to secure DLCD approval/certification. Applicant
counters that its soil expert simply interpreted existing NCRS information and therefore Applicant was not
required to secure DLCD approval/certification.
OAR 660-033-0030 (5)(a) states, in part, that "more detailed data on soil capability than is contained in the
USDA Natural Resources Conservation Service (NCRS) soil maps and soil surveys may be used to define
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 15 of 51
agricultural land" [bolding and italics added by the Hearings Officer]. The Hearings Officer reviewed the Red
Hills Soils Report to determine if the report in fact provided more detailed data than what is contained in the
NCRS soils maps and soil surveys.
Gallagher, in the Red Hills Soils Analysis, concluded:
"The NRCS WEBSOILSUR VEY shows the subject property is predominantly non -high value farmland, Class
7 and 8 and does not meet the definition of agricultural land within the meaning of OAR 660-033-0020(1)(b),
as it is not adjacent to or intermingled with land in capability classes 1-6 within a farm unit. "
Gallagher, in a May 15, 2025 letter (Applicant May 16, 2025 submission, attachment), stated
"I want to clarify for the record that my report only contained information taken from the NRCS database,
and it did not include nor pretend to include any results from onsite investigations, and it is not an Order-1
Soil Survey. It is not a `Soil Assessment' by the definition cited in OAR. It was not presented as such and was
not called such in the title or body of the report. The specific reason I did not do a `Soil Assessment' of this
property is that the NRCS maps already showed a predominance of Class 7 and 8, non -high value farmland
soils on these properties. There was no `Soil Assessment' done or submitted so there is no failure to comply
with OAR, as COL stated in their letter. "
The Hearings Officer finds, based upon a review of the Red Hills Soils Report and Gallagher's May 15, 2025
letter, that Gallagher did not generate, produce or otherwise utilize more detailed data on soil capability than what
is contained in the NCRS soil maps and surveys. The Hearings Officer finds, consistent with OAR 660-033-0030
(5)(a), that the Red Hills Soils Report is not a "soil assessment" requiring DLCD certification.
The Hearings Officer also finds that Gallagher, in the Red Hills Soils Report, was "interpreting" existing NCRS
maps and data. The Hearings Officer finds that if "interpreting" NCRS maps and data necessitated DLCD
certification then COLW's "interpretation" (See, for example, COLW comments in its May 9, 2025 and May 30,
2025 submissions) of the NCRS maps and data would require DLCD certification. It is not unusual in cases
involving disputes as to whether a particular property is Agricultural Land to have multiple "interpretations" of
NCRS maps and data. The Hearings Officer finds mere interpretation of existing NCRS maps and data does not
trigger the need for OAR 660-033-0030 DLCD certification.
Title 22 of the Deschutes County Code, Procedures Ordinance
Chapter 22.20, Review of Land Use Action Applications
Section 22.20.055, Modification Of Application
A. An applicant may modify an application at any time during the approval process up until the
close of the record, subject to the provisions of DCC 22.20.052 and DCC 22.20.055.
FINDING: The Applicant submitted a Modification of Application (Deschutes County file 247-25-000021-MA)
on January 8, 2025. The Applicant provided the following description of the Modification in the submitted
Burden of Proof:
"The Applicant has reevaluated the application and is proposing to modify the application to reduce the
number of acres subject to the request to 240.17 acres... The modification application also supplements
certain evidence included in the original application demonstratingfurther that the subject property is
not agricultural land as defined in the applicable laws and regulations. The Applicant is submitting a
supplemental report from a certified soils scientist who applied an accepted weighted distribution
analysis to the NRCS mapping and determined that the subject property is comprised predominantly of
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 16 of 51
Class 7 and Class 8 soils which are not agricultural soils. "
The Hearings Officer concurs with Applicant's above -quoted statement.
B. The Planning Director or Hearings Body shall not consider any evidence submitted by or on
behalf of an applicant that would constitute modification of an application (as that term is
defined in DCC 22.04) unless the applicant submits an application for a modification, pays all
required modification fees and agrees in writing to restart the 150-day time clock as of the date
the modification is submitted. The 150-day time clock for an application, as modified, may be
restarted as many times as there are modifications.
FINDING: The Applicant provided the following response to this criterion:
"The Applicant is providing additional evidence within an application for a modification of application
and with the required fee. Thus, the hearing body may consider the new evidence. "
The Hearings Officer concurs with Applicant's above -quoted statement.
C. The Planning Director or Hearings Body may require that the application be re -noticed and
additional hearings be held.
FINDING: The Modification of Application was submitted prior to the date the Notice of Public Hearing was
mailed, and the Modification materials were available as part of the public record. Furthermore, Staff (Staff
Report page 14) noted that the Modification reduced the size of the Subject Property and therefore would have
reduced the size of the mailing radius. For these reasons, Staff concluded that an additional mailed notice of
application or notice of hearing date are not required. The Hearings Officer concurs with Staff's statement and
conclusion.
D. Up until the day a hearing is opened for receipt of oral testimony, the Planning Director shall
have sole authority to determine whether an applicant's submittal constitutes a modification.
After such time, the Hearings Body shall make such determinations. The Planning Director or
Hearings Body's determination on whether a submittal constitutes a modification shall be
appealable only to LUBA and shall be appealable only after a final decision is entered by the
County on an application.
FINDING: Staff (Staff Report, page 14) stated that it agreed with the Applicant's conclusion that the materials
submitted with 247-25-000021-MA constituted a Modification of Application. The Hearings Officer concurs
with this Staff conclusion.
Title 18 of the Deschutes County Code, County Zoning
Chapter 18.136, Amendments
Section 18.136.010, Amendments
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or legislative map
changes shall be as set forth in DCC 22.12. A request by a property owner for a quasi-judicial map
amendment shall be accomplished by filing an application on forms provided by the Planning
Department and shall be subject to applicable procedures of DCC Title 22.
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 17 of 51
FINDING: The Applicant, with written consent from the property owner, requested a quasi-judicial plan
amendment and filed the applications for a plan amendment and zone change. The Applicant filed the required
Planning Division land use application forms for the proposal. The application will be reviewed utilizing the
applicable procedures contained in Title 22 of the Deschutes County Code.
Section 18.136.020, Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the public interest is best served by
rezoning the property. Factors to be demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and the change is consistent with the
plan's introductory statement and goals.
FINDING: The Applicant provided the following comments in its Burden of Proof statement:
"The Comprehensive Plan's introductory statement explains that land use must comply with the Statewide
Planning System and sets out the legal framework set by State law. It summarizes the Statewide Planning
Goals. It also explains the process the County, used to adopt the current Comprehensive Plan. This
application is consistent with this introductory statement because the requested change has been shown
to be consistent with State law and County plan provisions and zoning code that implement the Statewide
Planning Goals.
The following provisions of Deschutes County's Amended Comprehensive Plan set out goals or text that
may be relevant to the County's review of this application. Other provisions of the plan do not apply. "
The Applicant utilized the above -referenced analysis, as well as analyses provided in prior Hearings Officers'
decisions to determine and respond to only the Comprehensive Plan Goals and policies that apply, which are
listed in the Comprehensive Plan section of this recommendation in further detail. Staff (Staff Report, page 15)
generally agreed with the Applicant's analysis and finds the above provision to be met based on Comprehensive
Plan conformance as demonstrated in subsequent findings.
Staff requested that the Hearings Officer make specific findings regarding whether the Subject Property qualifies
as agricultural land, which may impact the findings for compliance with certain Comprehensive Plan policies.
The Hearings Officer provides such requested findings below and concludes that this criterion/standard is met.
B. That the change in classification for the subject property is consistent with the purpose and intent
of the proposed zone classification.
FINDING: Staff, Applicant and COLW raised a number of issues related to this criterion. Staff expressed
concern related to the Solar Array located on the Subject Property. Staff (Staff Report, page 17) asked the
Hearings Officer to determine "if the applicant has sufficiently addressed DCC 18.36.020 (B) demonstrating that
the change will be consistent with the purpose and intent of the proposed zoning classification, specifically with
respect to creation of a nonconforming use." COLW expanded upon Staff s above -quoted concerns and argued
that the Solar Array would not be consistent with the purpose statement for the MUA10 zone. (COLW
submissions: May 9 2025, page 2). Staff, Applicant and COLW also addressed this criterion during hearing
testimony.
The Hearings Officer finds Applicant (Final Argument, 6/2/2025, pages 2 — 5) best outlines the issues raised by
Staff and COLW. The Hearings Officer includes Applicant's final argument comments below:
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 18 of 51
"A. DCC 18.136.010 — Consistency with purpose and intent of MUA-10 zone.
COLW asserts that rezoning the subject 240 acres to MUA-10 is not consistent with the purpose and intent of
the MUA-10 zone because 63 acres of the site has a previously approved solar farm on it. COLW does not
specifically argue that rezoning the remaining 177 acres is inconsistent with the purpose and intent of the
MUA-10 zone.
The purpose statement for the MUA-10 zone has several statements about the purpose of the zone, including:
• To preserve the rural character of various areas of the County while permitting development consistent
with the character;
• Preserve and maintain agricultural lands not suited to full-time commercial farming for diversified or
part time agricultural uses;
• Conserve open spaces and protect natural and scenic resources; to maintain and improve quality of air,
water and land resources;
• Establish standards and procedures, for the use of those lands designated for intense development by the
Comprehensive Plan;
• Provide for orderly and efficient transition from rural to urban land use.
COLW's argument has two fundamental flaws. First, COLW does not even attempt to apply DCC 18.136.010
to most of the site; it limits its argument to one 63-acre portion of the larger- 240-acre tract.Appticant s,/oolnole r
Second, COL Ws arguments are backed by nothing other than bare conclusions and unsupported supposition.
Applicant's footnote 1: The applicant notes that ironically, later in its May 9, 2025 opposition when asserting that
the subject site qualifies as agricultural land, COL advocates that one must take into account the entire site.
COL Ws argument is that rezoning just one part of the site that includes 63 acres is not consistent with the
purpose statement. As noted, COL never tried to address the remaining 177 acres. DCC 18.136.020(B) is
specifically directed at the entire subject property. It cannot be applied to isolated portions of an application
site. When applied to the entire subject tract, the standard in DCC 18.136.020(B) is satisfied. First,
hearings officers in Deschutes County have consistently found that the uses permitted in the MUA-10 zone are
rural in nature. LUBA has upheld those findings. See, Applicant's May 9, 2025 Letter citing file Nos. 247-
24-000392-PA, 247-24-000404-PA and Central Oregon LandWatch v. Deschutes County, _ Or LUBA
(LUBA No. 2023-049, Feb. 15, 2024). Consequently, it is appropriate far the Hearings Officer to find that, as
applied to the entire site, redesignating the subject site to MUA-10 is consistent with the purpose of
preserving the rural character.
Second, rezoning the property to MUA-10 is consistent with preserving land for diversified, part-time
agricultural use. Because the minimum parcel size in the MUA-10 zone is 10 acres, it is conducive to
creating parcels where owners can more economically maintain small hobby farm operations that require
less water, fertilizer, and labor. The application material establishes that the subject site with poor soil and
no water is not suitable for any large-scale farming. As the data included in the Amended Burden of Proof
Statement (page 23) and Mr. Gallagher's report illustrate, the cost of conducting such operations outweighs
the economic benefits. Permitting smaller parcels where hobby farming can occur is consistent with this
element of the purpose statement. Further, the application material demonstrates that there are other MUA-
10 parcels that have diversified, small-scale agricultural uses.
Rezoning the property to MUA-10 is consistent with preserving open space and natural resources.
For example, the MUA-10 does permit clustering of residential dwellings on parcels smaller than
10 acres. However, that permitted use is also consistent with the purpose statement. A cluster
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development requires that 65% of the sites be preserved as open space. Creating such an open
space preserves natural features and scenic resources. In turn, the low -intensity development
permitted maintains and improves the quality of air, water, and land resources.
Rezoning the land to MUA-10 is consistent with the purpose of establishing standards andprocedures for the
use of land unsuitable for intense development. DCC` 18.32.020 lists the uses permitted outright and they are
all low -intensity uses that the county has already deemed consistent with the rural MUA-10 zoning. DCC
18.32.030 lists the conditional uses which can be viewed as being slightly more intense than the permitted
uses. The county's conditional use standards ensure that uses conditionally permitted are developed to be
compatible with the properties in the area.
Finally, rezoning the subject site to MUA-10 will promote orderly transition to urban use. The subject site is
close to the current city limit and in an area of growth. A public street network and other public facilities are
close to the property and can be extended to serve it when the city expands east. The subject site is large
enough to accommodate annexation and any master planning that is appropriate.
COL supposes that an existing transmission corridor presents challenges to an attempt to rezone.
However, COL does not link that argument to any specific approval criterion. Many land use proposals
come with challenges. The amount of bare land in Deschutes County close to city limits is not increasing.
There will be challenges and competing interests. The reality is that there are utilities all over Deschutes
County, and in all zones. It is difficult to imagine a site that does not have some utility lines that impact the
site. However, a general concern over the existence of utilities is not a basis in the code to deny an
application to change a zoning designation. In fact, when one examines COL Ws diagrams in its May 9,
2025 letter, particularly Figure 9, the existing transmission lines run north/south through property east of the
subject site. Compared to the application material, one can see that the existing transmission lines continue
south through a residential development in an MUA-10 zone. That demonstrates that transmission lines are
commonplace in our world and not inconsistent with the purpose of the MUA-10 zone; the existence of
utilities is not a basis to reject a rezoning request.
In more rank speculation, COLW asserts that there are `almost certainly additional potential non -conforming
structures as DCC 18.32.040(C) prohibits structures from exceeding 30 feet in height within the MUA-10
zone.' Not only is that assertion void of all substances, COL does not even try to link it to any criterion
relevant to the application. How is the current rezoning request going to `potentially " create more non-
conforming structures? If the height limit in MUA-10 is 30 feet, there will be no structure approved that is
over 30 feet.
COLW further asserts that one can imagine more conflicts because PacifiCorp shows one possible route for a
transmission line near the subject tract. Based on the mere possibility of a new transmission line in the area,
COL Wprojects that conflicts are destined to occur. Where is the evidence to support such obvious
speculation? As of the time that the Hearings Officer must make a decision, any PacifrCorp transmission line
is theoretical.
B. The existence of a non -conforming use does not create an inconsistency with the purpose or intent of a
new zone.
On a related point, COL makes a very confusing non -conforming use argument. In response to a question
from county planning staff, the applicant explained that although solar farms are not permitted in the MUA-
10 zone, rezoning to MUA-10 is not inconsistent with the MUA-10 zoning standards because the solar farm
is a lawfully established use that will continue with non -conforming use rights until redevelopment presents
itself. That is not an uncommon situation in any jurisdiction. Indeed, if the existence of non -conforming
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use/development was a bar to rezoning, it is hard to imagine cities ever being able to annex property. When
property is annexed, it gets a city urban zone. Invariably, there will be older uses/developments that are not
in conformance with the new zoning. The, fundamental notion embodied in non -conforming use law is that
such uses may continue but the long-range goal is to bring such sites into conformity over time. Thus, the
existence of a non -conforming use is not an inconsistency that precludes rezoning. It is something that local
codes and state law accommodate in the process of rezoning.
COLW tries to twist the applicant's response to have said that the county must approve the rezoning because
the solar farm has non -conforming rights. That is entirely not true. That was the situation in Jackson v.
Clackamas County, where the petitioner argued that it was entitled to a conditional use permit for a use
because that use had lawful non -conforming use rights. The applicant here never asserted that the existence
of a non -conforming use entitles it to a rezone. The applicant merely pointed out to staff that approving the
rezoning request with a non -conforming use is not inconsistent with any county regulation and is
commonplace in most rezoning and annexation actions. "
The Hearings Officer finds no argument in the record that disputes the concept that if a zone change is granted
that the Solar Array, if confirmed as a legal nonconforming use, would have a legal right to continue. Holmes v.
Clackamas County, 265 Or 193 (1973) The Hearings Officer finds, however, that Staff is uncertain whether the
Solar Array can be considered consistent with the purpose and intent of the purpose statement of the MUA10
zone. COLW argued that the Solar Array (if in fact a legal nonconforming use) cannot be considered consistent
with the purpose and intent of the MUA-10 zone.
Applicant addressed Staff's and COLW's concerns in two ways. First, Applicant addressed the overarching issue
of nonconforming uses in the context of zone change applications. Second, Applicant addressed each of the
factors set forth in the MUA10 purpose statement.
The Hearings Officer first addresses the overarching issue involving zone change applications where a
nonconforming use may exist if the zone change application is approved. Applicant and COLW both cited, in
support of their position, Holmes v. Clackamas County, 265 Or 193 (1973) and Jackson v. Bd. Of Cnty. Comm 'rs
for Clackamas Cmy, 26 Or App 265 (1976).
COLW included the following excerpt from the Holmes Oregon Supreme Court opinion:
"In light of ORS 215.130, DCC 18.120.010, and Oregon Supreme Court precedent, it is not possible to find
that rezoning the subject property resulting in an existing use having lawful nonconforming status is
inconsistent with the MUA zone. Indeed, there are lawfully established nonconforming uses throughout the
county and the state. Each time the city or county rezones property in an area, it is common for there to be
uses that become nonconforming. The fact that those uses become lawfully established nonconforming uses
does not mean that having such use is inconsistent with the purposes of the new zone. The well -established
laws on nonconforming uses that allow them to continue in a new zone are designed to assure consistency
with the new zone. If the standard is that a rezoning can only be found consistent with the purpose of the new
zone if after the rezoning there are no lawfully established nonconforming uses, it would frustrate the city's
ability to rezone property as well. It makes no legal difference whether the County initiates a rezoning, or a
property owner exercises their right to request a rezoning. The law on nonconforming rights makes no legal
distinction. 2024-5-28 Applicant Response to Issues Letter at p. 4-5. "
COLW argued (following the above quote) that "Applicant mistakenly relies upon ORS 215.130(5) that the
proposed zone change complies with the requirements of DCC 18.136.020(B)" (footnote omitted). The Hearings
Officer finds that COLW mischaracterizes Applicant's argument and the clear and plain language set forth in the
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 21 of 51
above -quoted section of the Holmes Supreme Court decision. The Hearings Officer finds two sentences included
in the above -quoted Holmes Supreme Court decision are worthy of repeating:
"The fact that those uses become lawfully established nonconforming uses does not mean that having such
use is inconsistent with the purposes of the new zone. The well -established laws on nonconforming uses that
allow them to continue in a new zone are designed to assure consistency with the new zone. "
The Hearings Officer finds this language is clear and directly on point in this case. The Hearings Officer finds,
based upon the Holmes Supreme Court case, that the Solar Array if in fact a legal nonconforming use, can be
considered consistent with the purpose of the MUA10 zone.
Applicant and COLW also referenced Jackson v. Bd. Of Cmy. Comm 'rs for Clackamas Cnty in support of their
nonconforming use positions. The Hearings Officer, having reviewed the cited Jackson opinion and finds that
such opinion is not relevant to the nonconforming issue presented in this case.
Both Applicant and COLW addressed the introductory language of DCC 18.136.020 (B) and the purpose
statement for the MUA10 zone (See COLW 5/9/2025 submission pages 2-8 and Applicant 5/9/2025 submission
pages 2-4, and Applicant 6/2/2025 Final Argument, pages 2-5). Staff also addressed this MUA10 purpose
statement in the Staff Report (pages 15-20).
COLW provided the following statement related to DCC 18.136.020 (COLW 5/9/2025 submission, page 2):
"DCC 18.136.020 provides that the applicant for a quasi-judicial rezoning must establish the public interest
is `best served' by rezoning the subject property. Use of the word `best' in DCC 18.136.020 means that
rezoning of the property should be superior to the existing zoning classification based on the series of factors
provided in subsections (A) — (D). "
The Hearings Officer has not addressed COLW's "best" argument in prior zone change application cases. The
Hearings Officer notes that the DCC use of the word "best" in the DCC 18.136.020 introductory language is
difficult to harmonize with the language used in each of the "factors" listed in DCC 18.136.020 A., B., C and D.
For example, the language in DCC 18.136.020 A and B does not use comparative language (e.g., best or better,
etc.). Rather DCC 18.136.020 A and B utilize "consistent with" terminology. Being "consistent" does not imply
that the proposed zone classification is somehow "best" or even "better" than the existing zone. The factors listed
in DCC 18.136.020 C address adequacy of public services and facilities and impacts on surrounding land uses
will be consistent with the Comprehensive Plan. DCC 18.136.020 C, once again, does not imply a comparative
standard (e.g. "best" or "better") but rather requires "adequate" services and a determination that impacts on
surrounding uses will be "consistent" with the Comprehensive Plan.
The Hearings Officer, in this case, is asked to interpret the intent of the Deschutes County Commission when
drafting DCC 18.136.020; specifically, the import and meaning of the word "best." The Hearings Officer, takes
note of the following two Deschutes County Code sections:
1.04.030 Interpretation Of Language
All words andphrases not specifically defined in this title or elsewhere in this code shall be construed
according to the common and approved usage of the words or phrases. However, technical words and
phrases and such others as may have acquired a particular meaning in the law shall be construed and
understood according to such particular meaning.
1.04.060 General Construction
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The ordinances of the County, and all proceedings under them, are to be construed in order to carry out their
objectives and to promote justice.
The Hearings Officer finds, strictly from a definitional perspective (common and approved usage), that COLW's
interpretation of the word "best" in DCC 18.136.020 is reasonable. However, when considering the Hearings
Officer's context comments related to DCC 18.136.020 A., B., C and D the Hearings Officer finds that the word
"best" in the introductory language conflicts with the language used in each of the relevant factors.
The Hearings Officer finds applying the word "best" (as argued by COLW) would frustrate the clear intention of
the Board of County Commissioners adoption of the factors listed in DCC 18.136.020 A, B, C and D. The
Hearings Officer finds that following COLW's "best" argument would necessitate replacing the word "consistent"
in DCC 18.136.020 A, B and D with the word "best." The Hearings Officer finds following COLW's "best"
argument would require a finding that the word "presently" would be replaced with the word "best." The Hearings
Officer finds that DCC 136.020 C.1. simply requires a showing that public services and facilities are adequate and
presently available. DCC 18.136.020 C.1 does not require a demonstration that changing the zone will result in
"better" or "best" public services as compared to the existing zoning. DCC 18.136.020 C.2, once again uses the
word "consistent" and not the word "best." The COLW "best" argument is simply irrelevant to DCC 18.136.020
D.
The Hearings Officer finds that for the purposes of this recommendation the term "best" used in the introductory
statement to DCC 18.136.020 can be reasonably interpreted to mean that the public interest is "best served" if the
proposal meets the factors set forth in DCC 18.136.020 A, B, C and D.
The Hearings Officer finds the evidence set forth in Applicant's final argument (quoted above) is credible and
constitutes substantial evidence that the factors set forth in DCC 18.136.020 A., B., C and D are met. The
Hearings Officer concurs with Applicant's analysis of the evidence in the context of the factors set forth in DCC
18.136.020.
C. That changing the zoning will presently serve the public health, safety and welfare considering
the following factors:
1. The availability and efficiency of providing necessary public services and facilities.
FINDING: The Hearings Officer incorporates the findings for DCC 18.136.020 B set forth above as additional
findings for this criterion.
Staff included (Staff Report, pages 17 & 18) the following comments:
`Although there are no plans to develop the properties in their current state, the above criterion specifically
asks if the proposed zone exchange will presently serve public health, safety, and welfare. The applicant
provided the, following response in the submitted burden of proof statement:
Necessary public facilities and'services are available to serve the subject property. Central Oregon
Electric Cooperative, Pacific Power, and Avion Water Company, Inc. currently serve properties in the
area and can continue to serve the subject property if'rezoned. There is no perceived capacity issue and
that can be addressed in future development application if the property is rezoned.
The subject property is located along Highway 20 east of the roundabout in Ward Road/Hamby Road and
west of Erickson Road. Neff Road is to the north and Bear Creek Road is to the south, all of which can
accommodate added traffic that may result from rezoning. The impact of rezoning the subject property
will be extremely minor. Withh its current zoning, it is theoretically possible to divide the propel iy into 10-
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acre parcels. However, with the solar farm on a large part of Tax Lot 100, the amount of property that
could be developed with houses in the foreseeable future is much less. The existing road network is
available to serve the use. This is confirmed by a transportation system impact review conducted by Scott
Ferguson.
The property receives police services from the Deschutes County Sheriff. The southern half of the
property is in a rural fire protection district and the nearest fire station is less than one mile away. All of
the property is located in the Rural Fire District #2. Access to the subject property by fire trucks is
provided by aerial streets. It is efficient to provide necessary services to the propel iy because the
property is already served by these service providers and adjacent to large tracts of land zoned MUA-10
that have been extensively developed with rural residences on small lots and parcels.
Adjacent properties include a mix of vacant land, residential development, and utility facilities, and the
general surrounding area includes several other public and commercial uses. Neighboring properties are
served by wells, on -site sewage disposal systems, electrical service, and telephone service. No issues have
been identified in the record regarding service provision to the surrounding area. The southwest corner of the
subject property is located 0.26 miles from the City of Bend UGB. This close proximity to urban development
will allow for efficient service provision.
There are no known deficiencies in public services or_facilities that would negatively impact public health,
safety, or welfare. Prior to development of the properties, the applicant would be required to comply with the
applicable requirements of the Deschutes County Code, including possible land use permit, building permit,
and sewage disposal permit processes. Through these development review processes, assurance of adequate
public services and facilities will be verified. Staff finds this provision is met. "
The Hearings Officer concurs with Staff's above -quoted comments.
2. The impacts on surrounding land use will be consistent with the specific goals and
policies contained within the Comprehensive Plan.
FINDING: The Hearings Officer incorporates the findings for DCC 18.136.020 B set forth above as additional
findings for this criterion.
Staff included (Staff Report, pages 18 & 19) the following comments:
"The applicant provided the following response in the submitted burden of proof statement.•
The MUA-10 zoning is consistent with the specific goals and policies in the Comprehensive Plan
discussed above. The MUA-10 zoning is the same as the zoning of many other properties in the area of
the subject property and is consistent with that zoning.
The only adjoining or nearby lands in farm use is a single property east of Tax Lot 1000. The proposed
zone change and plan amendment will impose no impacts on this EFU zoned farmland because these
lands are separated from the subject property by a large rock rim and that property is isolated with its
own water supply and access. There is smaller scaled farming on discrete parcels in the greater area
ancillary to the primary residential use but said farming is so far removed from the subject property, it
has no bearing on this application.
In addition to these comments, the applicant provided specific findings for each relevant Comprehensive Plan
goal and policy, which are addressed below. Stafffinds the applicant has demonstrated the impacts on
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surrounding land use will be consistent with the specific goals and policies contained within the
Comprehensive Plan, but asks the Hearings Officer to amend or add to these findings as the Hearings Officer
sees fit. "
The Hearings Officer concurs with Staff s above -quoted comments and conclusions. The Hearings Officer finds
no need to amend or add to Staff s comments/findings.
D. That there has been a change in circumstances since the property was last zoned, or a mistake
was made in the zoning of the property in question.
FINDING: The Hearings Officer incorporates the findings for DCC 18.136.020 B set forth above as additional
findings for this criterion. The Applicant proposed to rezone the properties from EFU to MUA 10 and re -designate
the properties from Agriculture to Rural Residential Exception Area. The Applicant provided the following
response in the submitted burden of proof statement:
"There has been a change in circumstances since the subject property was last zoned and a mistake in
designating the subject property EFU/Agriculture when soils did not merit a designation and protection as
Agricultural Land. ' This zone was applied to the property in 1979 and 1980 when Deschutes County adopted
zones, a zoning ordinance, and comprehensive plan that complied with the Statewide Goals.
In 1979 and 1980, undeveloped and undeveloped rural lands that contained poor soils, but were zoned EFU
without regard to the specific soil characteristics of the property. Landowners were required to apply for a
zone change to move their unproductive EFUproperties out of the EFUzone. The County 's zoning code
allowed these owners a one-year window to complete the task. This approach recognized that some rural
properties were mistakenly classified as EFU because their soils and other conditions did not merit inclusion
of the property in the EFU zone.
Some of the other property owners of lands east of Bend received approval to rezone their properties fi^om
EFU to MUA-10 because their properties contained poor soils and were improperly included in the EFU
zone. The soils on the subject property are similarly poor and also merits MUA-10 zoning. The NRCS maps
and how the County Board has determined they should be used confirm that the subject property is not
agricultural land. Since 1979 and 1980, there has been a change of circumstance related to this issue. The
County's Comprehensive Plan has been amended to specifically allow individual property owners to have
improperly classified land reclassified.
Additionally, circumstances have changed since the property was zoned EFU. The City of Bend has been
developed to the east toward the subject property. The Bend Airport has grown significantly in this time
period and now provides many aviation -related jobs. The property is located within easy commuting distance
of Saint Charles Medical. It has grown significantly and its need for workers has increased. The area now
includes large solar farms, churches, a Christian Center, and utility facilities.
Specific to the subject property, Tax Lot 100, which is about 100 acres, has been committed to use as a
commercial solar farm. It has been irrevocably removed from farming due to the poor soil and other factors
making farming infeasible. The proposed zone change to MUA-10 will not impact that use. Because it was
lawfully established on the applicable zoning, pursuant to DCC 18.120.010, that use has the right to continue
operating on the subject property. Thus, Tax Lot 100 will never be available for farming alone or in
combination with any other parcel. The County should include a finding to this effect.
Since the property was zoned, it has become evident that farm uses are not viable on the property or on other
area properties. The economics of farming have worsened over the decades making it difficult for most
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 25 of 51
Deschutes County property owners to make money_ farming good ground and impossible to earn a profit. from
attempting to farm Class 7 and 8 farm soils. In 2022, according to Table 4 of the 2022 US Census of
Agriculture, Exhibit 8, only 18.6% of farm operators achieved a net profit from farming (293 of 1572 farm
operations). In 2017, according to Table 4 of the 2017 US Census ofAgriculture, Exhibit 9, only 16.03% of
farm operators achieved a net profit from farming (238 of ' 1484 farm operations). In 2012, the percentage
was 16.45% (211 of 1283 farm operations). In 2007, according to the 2012 US Census ofAgriculture, that
figure was 17% (239 of 1405 farm operations). Exhibit 10. The number of farms with net losses increase from
1,246 in 2017 to 1,279 in 2022. The vast majority of farms in Deschutes County have soils that is superior to
those found on the subject property. As farming on those soils is typically not profitable, it is reasonable to
conclude that no reasonable farmer would purchase the subject property for the purpose of attempting to
earn a profit in money from agricultural use of the land.
The Hearings Officer incorporates findings for Deschutes County Comprehensive Plan, Goal 2 and the findings
for OAR 660-033-0020 as additional findings for this goal.
The Hearings Officer finds, based upon the Applicant's above -quoted Burden of Proof Statement and the record
as a whole, that there has been a change in circumstances since the Subject Property was last zoned. The Hearings
Officer finds changes in circumstances include the clarification of the correct soil classification of the Subject
Property as evidenced by the Red Hills Soils Report and the evolution of development progressing eastward from
the City of Bend. Further, based upon Applicant's above -quoted statement the Hearings Officer finds the current
Comprehensive Plan and zoning designation were based upon a mistake. The Hearings Officer finds the specific
mistake was that the current zoning was selected based upon an incorrect designation of the Subject Property as
Agricultural Land. Based upon the Red Hills Soils Report the Subject Property is not Agricultural Land as that
phrase is defined in law.
Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Section 2.2 Agricultural Lands
Goal 1, Preserve and maintain agricultural lands and the agricultural industry.
FINDING: The Hearings Officer notes that there are numerous relevant goals and approval criteria relating to the
preservation and maintenance of Agricultural Lands. The Hearings Officer has attempted to include findings for
many of the Agricultural Land criteria issues within the findings for Goal 1. Where appropriate the Hearings
Officer incorporates the findings for Goal 1 into the findings for other relevant goals and/or approval criteria.
Applicant provided the following overview of the Agricultural Land issue (Burden of Proof):
"The Applicant presented in the original application that the County's historic reliance on the NRCS
mapping for determining whether parcels are comprised predominantly of agricultural land or not. If the
NRCS maps are not adequate to make that determination, the County can consider a site -specific soil
study prepared by a certified soil scientist. In this matter, the NRCS maps require a finding that the
subject property is predominantly not agricultural land.
To supplement the application in this modification request, the Applicant is submitting a detailed report
from Red Hill Soils. The report is primary to provide more detail on the composition of the two soil types
mapped on the property because each soils type is a complex soil type. The majority of the property is
comprised of 58C-Gosney Rock Outcrop-Deskamp complex. The following table from the Red Hills Soils
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 26 of 51
Report breaks out each soil type found on the subject property. The Red Hill Soils report presents a
detailed evaluation of the soil on the subject property accounting for each component in the 58C complex
soil type...
The Red Hills Soils Report confirms that the subject property is comprised predominantly of Class 7 and
Class 8 soils which are not agricultural land.
The Red Hill Soils Report also evaluated soil fertility concluding that that the soil fertility and
productivity are very limiting to crop production. The soil has low fertility, lacking nutrients, and has a
limited capacity for retaining water.
The vast majority of the subject property is comprised of Class 7 and Class 8 non-agricultural soils, and
the property has no known history of agricultural use. As noted in the Eastside Bend decision, Class 7
and Class 8 soils have severe limitations for farm use as well as poor soil fertility, shallow and very
shallow soils, surface stoniness, low available water capacity, and limited availability of livestock forage.
According to Agricultural Handbook No. 210 published by the Soil Conservation Service of the USDA,
soils in Class 7 `have very severe limitations that make them unsuited to cultivation and that restrict their
use largely to grazing, woodland, or wildlife.' Class 8 soils `have limitations that preclude their use for
commercial plant production and restrict their use to recreation, wildlife, or water supply or to esthetic
purposes.
Applicant, in its Final Argument, provided the following comments relating the evidence in the record to the
relevant Agricultural Land law:
"D. The subject site is not agricultural land under OAR 660-033-0020.
COL asserts that notwithstanding the NRCS maps and soil data that demonstrates that the property is
predominantly not agricultural land, it is suitable for farm use considering the factors in OAR 660-033-
0020(1)(a)(B): Soil fertility, Suitability for grazing, Climate Conditions, Existing and future availability of
water for farm. irrigation, existing land use patterns, technology and energy inputs, and accepted farming
practices.
COL completely ignores a fundamental issue that has been decided against it in prior cases. In applying
the factors identified above, it is appropriate for counties to also consider economic factors, particularly the
profitability or lack thereof of farming specific property. Wetherall v. Douglas County, 342 Or 666 (2007);
Central Oregon LandWatch, et al v. Deschutes County, Or LUBA _ (LUBA No. 2023-006, July 28,
2023). As LUBA noted in Central Oregon LandWatch. v. Deschutes County, ORS 215.203(2)(a) defines farm
use as the current employment of land for the primary purpose of obtaining profit in money. The applicant
provided data from reliable sources that demonstrates the economic infeasibility of conducting profitable
farming on the subject site. The cost to fertilize poor spoil, deal with lack of water, and the limited amount of
crops that will grow even with those costly measures makes it unreasonable for any owner to expect to make
any profit.
COL also does not effectively address the applicant's evidence on how the above factors illustrate that the
subject site is not agricultural land.
Soil fertility: COLW's discussion on this topic is more speculation that someone could, in theory, add enough
amendments to the soil to improve fertility or make some use of the property that does not require fertile soils.
The application demonstrates that one could expect, at best, about $4,181.40 in annual gross profit from dry
grazing. Adding in the cost of amending soil, , fertilizer, and other expenses, no reasonable farmer will
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 27 of 51
attempt to, farm the subject property. Further, Mr. Gallagher's professional report explains that the lack of
soil fertility makes it impracticable to engage in farm use on the property. As to other farming use activities
that may not rely on fertile soil, the applicant used dry grazing because it is anticipated to be the most
profitable of all activities. Amended Burden of Proof Statement, p. 22. The suggestion that someone could
board horses for a profit is unreasonable. One can imagine the enormous cost of constructing facilities that
do not now exist to even begin such an operation. It does not square with the definition of current
employment of land,for obtaining a profit in money.
Suitability for grazing: Again, the application material and Mr. Gallagher explained in detail why the
economics of dry grazing in this area on bad soil is not practicable and economically infeasible. Economic
infeasibility is a valid consideration that COLWjust ignores. Interesting though, when discussing this
element, COLW agrees that the entire subject tract must be evaluated, as the applicant and Mr. Gallagher
did. However, when discussing whether a change in the zoning to MUA-10 is consistent with the purpose and
intent of that zone, COLW does not address the entire tract.
Climactic conditions: Mr. Gallagher addressed this element in detail, including data from reliable sources.
COLW does nothing to refute his conclusions.
Existing and future availability of water for irrigation: COL W did not even address the issue. Mr. Gallagher
confirmed what the applicant provided that the property does not have irrigation rights. COLW focuses on
whether it is possible to get irrigation equipment on the property. Mr. Gallagher addressed this issue, but the
main point is the equipment on the property does nothing without water flowing through it. COLW ignored
that aspect altogether.
COLW relies on old photographs that illustrate that up to about 1968, there may have been pocketfarming on
portions of the subject property. The photographs alone do not establish what activity was being conducted
at that time. Moreover, the definition of farm use is the current employment of'land for farming activities.
ORS 215.203. There is no evidence in the record that there has been any farming conducted in the past 56
years. The material in the application supported by Mr. Gallagher supports a finding that the poor soil, lack
of irrigation, and rising cost of farming on dry land made it infeasible to currently conduct any farming on
the property.
Existing land use patterns: COLW confirms that to the extent there is any agricultural use in the area, it is
isolated to small hobby farms. The application included a detailed chart of the surrounding properties, and
which ones had any such activity. The chart confirms that much of the hobby farming is being done on
smaller MUA-10 parcels. That fact supports the finding that rezoning to MUA-10 is consistent with the
existing land use pattern and consistent with the purpose and intent of the MUA-1Ozone.
Technology and energy inputs required: COLW does not address this topic in substance. It does not refute
the evidence in the application and the information from Mr. Gallagher that technology will not overcome the
fact that the property has shallow soils with abundant rocks and no possibility of irrigation water.
Accepted farming practices: COLW provided nothing beyond its unsupported opinion that "nothing about
the subject property indicates that it could not operate with accepted farming practices common in the area. "
COL Ws May 9, 2025 Letter, p. 18. The detailed material in the application and supported by Mr. Gallagher
demonstrates that the only large-scale farming p-actice in the area is irrigated hay production. The
application material explains in detail why that cannot be done on the subject property. Mr. Gallagher
further explains that the only agricultural use in the area is small-scale farming that can be managed with the
limitations posed and is consistent with rezoning. The existing small agricultural uses are largely on MUA-
10 property. Rezoning the subject property to MUA-10 will have no negative impact on the continuation of
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 28 of 51
that activity. In fact, by allowing the creation of 10-acre parcels, rezoning to MUA-10 will afford more
opportunities for small-scale farming on parcels that are manageable from a cost/labor standpoint.
E. The subject property is not necessary to permit farming on adjacent land.
The applicant provided detailed information on why the subject property is not necessary to conduct farming
on adjacent or nearby properties. Amended Burden of Proof Statement, pp. 25-27. COLW does not dispute
that the subject property is not necessary to conduct farming on any of the parcels included in the applicant's
charts. Rather, COLW argues that the subject property is necessary to permit farming on a 12-acre parcel
adjacent to it at the intersection of Highway 20 and Erickson Road (TL 300). COLW offers no evidence to
support that argument but rather provides more subjective opinions. It recites that TL 300 is likely not large
enough to support a dryland grazing operation or other- farm practices on its own, but it "almost certainly
would" be with the subject property. COLW does not offer any explanation for how TL 300 could support a
farming operation even if it were used with the subject property. The evidence is to the contrary.
The overwhelming evidence in the application material and supported by Mr. Gallagher proves that dry
grazing and other farm operations are not feasible on the subject property. The question that COLW avoids
is if the subject property itself is not suitable to support farm operations, how would it be necessary to support
farm operations on adjacent property that is also unsuitable for farm practices? Stated otherwise, how would
the subject property that is not suitable, for, farming, facilitate, farming on the adjacent parcel that COLW
agrees is, by itself, not suitable for farming? It is intuitive that if one has 12 acres that is not suitable for
farming and one combines it with adjacent property that is also unsuitable for farming, the combined
properties are not magically suitable for farming. The subject property is not even a source for access to TL
300. One can easily see from the photographs in the record that it is not even possible to access TL 300 from
the subject property due to the location of the solar farm and associated fencing.
COLW, as noted in the above -quoted Applicant comments, argued the Subject Property was properly classified
by the NCRS maps as Agricultural Land (COLW, 5/9/2025, pages 10 — 20 and 5/30/2025, pages 6 — 8). COLW
asserted that the Red Hills Soil Report omitted the area under the Solar Array during its consideration of the
suitability for grazing factor. The Hearings Officer review of the Red Hills Soils Report confirms the area under
the Solar Array was not considered in the suitability for grazing analysis. The Hearings Officer responds
threefold. First, the Hearings Officer would have preferred the area under the Solar Array to have been included
in the suitability for grazing analysis. Second, the Hearings Officer finds that a rational and reasonable inference,
based upon evidence contained in the NCRS mapping and the Red Hills Soil Report, may be drawn that suitability
for grazing under the Solar Array is functionally the same as the remainder of Subject Property. Third, the
Hearings Officer finds no evidence in the record submitted by COLW supporting the proposition that adding the
area under the Solar Array to the balance of the Subject Property analyzed in the Red Hills Soils Report would
change the Red Hills Soils Report conclusion that the Subject Property is not suitable for grazing.
While the Hearings Officer would have preferred the Red Hills Soils Report consider the entire Subject Property
in its suitability for grazing analysis the Hearings Officer finds that omission alone is not sufficient to alter the
Hearings Officer's conclusion that the Subject Property is not Agricultural Land.
The Hearings Officer finds that the most persuasive Agricultural Land evidence in the record is the Red Hills
Soils Report. The Hearings Officer finds that the Red Hills Soils Report, in addition to other evidence supplied
by Applicant into the record, is substantial evidence and justifies the conclusion that the Subject Property is not
Agricultural Land.
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 29 of 51
Policy 2.2.2 Exclusive Farm Use sub -zones shall remain as described in the 1992 Farm Study
and shown in the table below, unless adequate legal findings for amending the sub -zones are
adopted or an individual parcel is rezoned as allowed by Policy 2.2.3.
FINDING: The Applicant did not ask to amend the subzone that applies to the subject property; rather, the
Applicant requested a change under Policy 2.2.3 and has provided evidence to support rezoning the Subject
Property to MUA-10.
Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including for those that
qualify as non -resource land, for individual EFUparcels as allowed by State Statute, Oregon
Administrative Rules and this Comprehensive Plan.
FINDING: The Hearings Officer incorporates the findings for the Deschutes County Comprehensive Plan,
Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1 as set forth above as additional findings
for this policy.
The Applicant requested approval of a plan amendment and zone change to re -designate the Subject Property
from Agricultural to Rural Residential Exception Area and rezone the property from EFU to MUA10. The
Applicant did not seek an exception to Goal 3 — Agricultural Lands, but rather to demonstrate that the Subject
Property does not meet the state definition of Agricultural Land as defined in Statewide Planning Goal 3 (OAR
660-033-0020).
The Applicant provided the following response in the submitted Burden of Proof statement:
"The Applicant is seeking a comprehensive plan amendment from Agriculture to RREA, and a zone
change from EFU-TRB to MU4-10 for non -resource land. This is the same change approved by
Deschutes County in the Division of State Lands file PA-11-71ZC-11-2. In findings attached, Deschutes
County determined that State law, as interpreted in Wetherell v. Douglas County, 52 Or LUBA 677
(2006), allows this type of amendment. LUBA said, in Wetherell at pp. 678-679:
As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are two ways
a county can justify a decision to allow nonresource use of land previously designated and zoned
for farm use or forest uses. One is to take an exception to Goal 3 (Agricultural Lands) and Goal 4
(Forest Lands). The other is to adopt findings which demonstrate the land does not qualify either
as forest lands or agricultural lands under the statewide planning goals. When a county pursues
the latter option, it must demonstrate that despite the prior resource plan and zoning designation,
neither Goal 3 or Goal 4 applies to the property. Caine v. Tillamook County, 25 Or LUBA 209,
218 (1993); DLCD v. Josephine County, 18 Or LUBA 798, 802 (1990). '
LUBA's decision in Wetherell was appealed to the Oregon Court of Appeals and the Oregon Supreme
Court but neither court disturbed LUBA's ruling on this point. In fact, the Oregon Supreme Court used
this case as an opportunity to change the test for determining whether land is agricultural land to make it
less stringent. Wetherell v. Douglas County, 342 Or 666, 160 Pad 614 (2007). In that case, the Supreme
Court stated that:
`Under Goal 3, land must be preserved as agricultural land if it is suitable for farm use' as
defined in ORS 215.203(2)(a), which means, in part, `the current employment of land for the
primary purpose of obtaining a profit in money' through specific farming -related endeavors. '
Wetherell, 343 Or at 677.
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The Wetherell court held that when deciding whether land is agricultural land, 'a local government may
not be precluded from considering the costs or expenses of engaging in those activities.' Wetherell, 342
Or at 680. In this case, the Applicant has shown that the subject property is primarily composed of Class
VII and VIII non-agricultural soils when irrigated and when not irrigated making farm -related endeavors
unprofitable. The property is not currently employed for any type of farm use and has no known history of
that use. Accordingly, this application complies with Policy 2.2.3. "
Staff (Staff Report, page 23) generally agreed with Applicant's above -quoted Burden of Proof statements. Staff
(Staff Report, page 23) found that Applicant provided sufficient evidence in the record addressing whether the
Subject Property qualifies as non -resource land. Staff concluded that the Applicant "has the potential to prove the
properties are not agricultural land and do not require an exception to Goal 3 under state law."
Based upon the incorporated findings, Applicant's Burden of Proof statements quoted above and Staff's analysis
the Hearings Officer finds this policy can be satisfied.
Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity on when and
how EFUparcels can be converted to other designations.
FINDING: This plan policy provides direction to Deschutes County to develop new policies to provide clarity
when EFU parcels can be converted to other designations. Staff stated (Staff Report, page 23) that it concurred
with the County's previous detenninations in plan amendment and zone change applications and concluded that
Applicant's proposal in this case is consistent with this policy. The Hearings Officer agrees with Staff s analysis
and conclusion and finds Applicant's proposal in this case is consistent with this policy.
Goal 3, Ensure Exclusive Farm Use policies, classifications and codes are consistent with local and
emerging agricultural conditions and markets.
Policy 2.2.13 Identify and retain accurately designated agricultural lands.
FINDING: The Hearings Officer incorporates the findings for the Deschutes County Comprehensive Plan,
Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1 as set forth above as additional findings
for this policy.
This plan policy requires the County to identify and retain Agricultural Lands that are accurately designated. The
Applicant argued that the Subject Property was not accurately designated as demonstrated. Based upon the
incorporated findings found later in this recommendation the Hearings Officer finds this policy can be satisfied.
Section 2.5 Water Resources Policies
Goal 6, Coordinate land use and water policies.
Policy 2.5.24 Ensure water impacts are reviewed and, if necessary, addressed for significant
land uses or developments.
FINDING: The Applicant has not proposed a specific development in this application. The Hearings Officer
finds that the Applicant is not required to address water impacts associated with development. The Hearings
Officer finds that the Applicant will be required to address this criterion during development of the Subject
Property, which would be reviewed under any necessary land use process for the site (e.g. conditional use permit,
tentative plat). The Applicant provided the following response in the submitted Burden of Proof.
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 31 of 51
"Irrigation is essential for commercial farm use in Central Oregon. Irrigating poor farm ground
consumes a large amount of the area's precious water resources without the resulting economic benefits
of profitable agricultural production. Homes consume less water than would be needed for farm field
irrigation on the subject property.
In its findings in Division of State Land, Deschutes County found that impacts of any proposed future
development of the state property on water resources would be reviewed by Deschutes County in future
development applications. That finding was sufficient to demonstrate compliance with this plan policy.
Together with the findings above and then later review by Deschutes County, this policy is satisfied. "
Staff (Staff Report, page 24) agreed with the Applicant's above -quoted analysis. Staff (Staff Report, page 24)
also provided a portion of the findings from Aceti IV (247-20-000438-PA, 439-ZC). Staff stated that in the Aceti
IV decision the Hearings Officer and the Board of County Commissioners (Board) made the following findings
which appear to support the Applicant's analysis:
"The Hearings Officer,found in Aceti 1 that this policy is directed at the County. In said decision, the
Hearings Officer cited a previous decision of Hearings Officer Green for file nos. PA-14-2 and ZC-14-2
that stated, "Nevertheless, in my decision in NNP I held it is not clear from. this plan language what
`water impacts' require review -- impacts to water supplies from use or consumption on the subject
property, or Impacts to off -site water resources.from development on the subject property.' The Applicant
has not proposed any particular land use or development, and any subsequent applications for
development of the subject property would be reviewed under the County's land use regulations that
include consideration of a variety of on- and off -site impacts.
The Hearings Officer finds it is premature to review "water impacts" because the Applicant has not
proposed any particular land use or development. Thus, there are no `significant land uses or
developments' that must be reviewed or addressed in this decision. Any subsequent applications for
development of the subject property will be reviewed under the Countv's land use regulations, which
include consideration of a variety of on- and off -site impacts. Notwithstanding this statement, the
Hearings Officer includes the following findings.
The Applicant's requested zone change to RI would allow a variety of land uses on the subject property.
The land east of the subject property (57 acres) is zoned RI and developed with a variety of rural
industrial uses. Consequently, it is likely that similar development may occur on the property if it were re-
designated and rezoned to RL In light of existing uses in the surrounding area, and the fact that Avion
Water Company provides water service in the Deschutes Junction area, and a 12-inch diameter Avion
water line and two fire hydrants are already installed on site, future development of the subject property
with uses permitted in the RI Zone will have water service.
The subject property has 16 acres of irrigation water rights and, therefore, the proposed plan amendment
and zone change will result in the loss or transfer of water rights unless it is possible to bring some
irrigated water to the land for other allowed beneficial uses, such as irrigated landscaping. As stated in
the Applicant's Burden of Proof, the 16 acres of irrigation water rights are undeliverable and are not
mentioned in the property deed. The Applicant has not grown a crop on the subject property or effectively
used his water right since the overpass was constructed in 1998.
The Hearings Officer finds that the proposal will not, in and of itself, result in any adverse water impacts.
The proposal does not request approval of any significant land uses or development.
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 32 of 51
The Hearings Officer finds Staffs reference to Aceti IV (quoted above) to be relevant and persuasive. Based upon
the Staffs analysis and conclusions and the findings for Aceti IV the Hearings Officer finds Applicant
demonstrated compliance with this Comprehensive Plan policy.
Section 2.7 Open Spaces, Scenic Views and Sites
Goal 1, Coordinate with property owners to ensure protection of significant open spaces and scenic
view and sites.
Policy 2.7.3 Support efforts to identify and protect significant open spaces and visually important
areas including those that provide a visual separation between communities such as the open
spaces of Bend and Redmond or lands that are visually prominent.
Policy 2.7.5 Encourage new development to be sensitive to scenic views and sites.
FINDING: The Hearings Officer adopts as additional findings for this policy the findings for Goal 5 (including
analysis of Applicant's submitted ESEE). Staff (Staff Report, pages 25 & 26) stated that these policies are
fulfilled by the County's Goal 5 program. Staff stated that the County protects scenic views and sites along major
rivers and roadways by imposing Landscape Management (LM) Combining Zones to adjacent properties. A
portion of the Subject Property is located within the LM associated with Highway 20.
Staff (Staff Report, page 25) noted in Te Amo Despacio, File 24 7-22-000313/314 that the standards and
requirements of that overlay can be implemented at the time of any future development. The Hearings Officer
finds that these provisions of the plan are not impacted by approval of the proposed zone change and plan
amendment.
Chapter 3, Rural Growth
Section 3.2, Rural Development
Growth Potential
As of 2010, the strong population growth of the last decade in Deschutes County was thought to have
leveled off due to the economic recession. Besides flatter growth patterns, changes to State regulations
opened up additional opportunities for new rural development. The following list identifies general
categories for creating new residential lots, all of which are subject to specific State regulations.
• 2009 legislation permits a new analysis of agricultural designated lands
• Exceptions can be granted from the Statewide Planning Goals
• Some farm lands with poor soils that are adjacent to rural residential uses can be rezoned as
rural residential
FINDING: This section of the Comprehensive Plan does not contain Goals or Policies, but does provide the
guidance above. The Applicant provided the following response to this section in its Burden of Proof:
"This part of the Comprehensive Plan is not a relevant approval criterion. for a plan amendment and zone
change application. Instead, it is the County's assessment of the amount ofpopulation growth that might
occur on rural residential lands in the fitture based on its understanding of the types of changes allowed
by law. Comprehensive Plan Policy 2.2.3 specifically authorizes rezoning and comprehensive plan map
amendments for any property zoned EFU and is the code section that defines the scope of allowed zone
changes.
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 33 of 51
This section makes it clear, however, that EFU zoned land with poor soils adjacent to rural residential
development is expected to be rezoned for rural residential development during the planning period. The
subject property has extremely poor soils that does not qualify as agricultural land that must be protected
by Goal 3. The subject property is sandwiched between large areas recently rezoned to MUA-10 to the
west and MUA zoned property to the east. Most of the intervening EFU land interspersed is committed to
rural residential uses. There is a single active farming operation in the immediate vicinity. The property
east of Erickson Road is developed with single-family homes.
The MUA-10 zone is a rural residential zone. It will provide for an orderly and efficient transition from
rural to urban land use as intended by the purpose of the MUA-10 zone. As a result, rezoning the subject
property MUA-10 is consistent with Section 3.2. "
Staff provided (Staff Report, pages 26 & 27) the following comments related to this section:
"Staff notes that the MUA10 Zone is a rural residential zone and as discussed in the Findings of Fact
above, adjacent properties to the north, northwest, and southwest are zoned MUA10. One of these
surrounding MUA10 properties has received approval for a Comprehensive Plan Amendment and Zone
Change to change the zoning of the property from EFU to MUA10. This property is identified on
Assessor's Map 17-12-35 as Tax Lot 1600, and is located adjacent to the subject property, to the west of
Tax Lot 900. Staff'notes this policy also references the soil quality, which staff discusses in more detail
below. Staff is uncertain if this policy is met by the available information in the record and requests the
Hearings Officer make specific findings on this topic. "
The Hearings Officer agrees with Applicant that this part of the Comprehensive Plan is not a relevant approval
criteria. The Hearings Officer finds the language in this section is purely aspirational and provides no clear and
objective standards which must be met by an applicant for a plan and zone change. The Hearings Officer finds
the aspirational issues raised by this section are addressed throughout this recommendation.
Section 3.3, Rural Housing
Rural Residential Exception Areas
In Deschutes County most rural lands are designated for farms, forests or other resources and
protected as described in the Resource Management chapter of this Plan. The majority of the land not
recognized as resource lands or Unincorporated Community is designated Rural Residential Exception
Area. The County had to follow a process under Statewide Goal 2 to explain why these lands did not
warrant farm or forest zoning. The major determinant was that many of these lands were platted for
residential use before Statewide Planning was adopted.
In 1979 the County assessed that there were over 17,000 undeveloped Rural Residential Exception
Area parcels, enough to meet anticipated demand for new rural housing. As of 2010 any new Rural
Residential Exception Areas need to be justified through initiating a nonresource plan amendment and
zone change by demonstrating the property does not meet the definition of agricultural or forest land,
or taking exceptions to farm, forest, public facilities and services and urbanization regulations, and
follow guidelines set out in the OAR.
FINDING: The Applicant provided the following response to this provision in the burden of proof:
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 34 of 51
"Staff and the County Board have conformed in prior decisions that the quoted language is part of the
background text of the County's Comprehensive Plan. It is not a plan policy or directive, and it is not an
approval standard for this application. Staff made this point in (Porter Kelly Burns). County zone change
and plan amendment use decisions adopted by the Board of Commissioners have so found. "
The Applicant also provided an alternate argument that applying the RREA Comprehensive Plan designation to
the subject property does not require an exception to a Statewide Planning Goal, even if this policy were
interpreted as an approval criterion.
Staff (Staff Report, page 27) stated that it agreed with prior Deschutes County Hearings Officer interpretations
and concluded that the above language in this section is not a policy and does not require an exception to the
applicable Statewide Planning Goal 3. The Applicant provided evidence in the record addressing whether the
property qualifies or does not qualify as agricultural or forest land. Staff asks the Hearings Officer to make
specific findings related to this language.
The Hearings Officer concurs with Applicant and Staff that the language in this section is not an independent
relevant approval criterion. In the alternative, the Hearings Officer incorporates the findings for the Deschutes
County Comprehensive Plan, Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1 as set
forth above as additional findings for this policy. The Hearings Officer finds, based upon the incorporated
findings and findings found throughout this recommendation, that the Subject Property does not meet the
definition of Agricultural Land.
Section 3.7, Transportation
Appendix C— Transportation System Plan
ARTERIAL AND COLLECTOR ROAD PLAN
Goal 4. Establish a transportation system, supportive of a geographically distributed and diversified
economic base, while also providing a safe, efficient network for residential mobility and tourism.
Policy 4.4 Deschutes County shall consider roadway function, classification and capacity as
criteria for plan map amendments and zone changes. This shall assure that proposed land uses
do not exceed the planned capacity of the transportation system.
FINDING: This policy applies to the County and advises it to consider the roadway function, classification and
capacity as criteria for plan amendments and zone changes. The Hearings Officer finds that the County will
comply with this direction by determining compliance with the Transportation Planning Rule (TPR), also known
as OAR 660-012, as described below in subsequent findings.
OREGON ADMINISTRATIVE RULES CHAPTER 660, LAND CONSERVATION AND
DEVELOPMENT DEPARTMENT
Division 6, Goal 4 — Forest Lands
OAR 660-006-0005, Definitions
(7) "Forest lands" as defined in Goal 4 are those lands acknowledged as forest lands, or, in the
case of a plan amendment, forest lands shall include:
(a) Lands that are suitable for cofnmercial forest uses, including adjacent or nearby lands
which are necessary to permit forest operations or practices; and
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 35 of 51
(b) Other forested lands that maintain soil, air, water and fish and wildlife resources.
FINDING: The Subject Property is not zoned for forest lands, nor are any of the properties within a 4.5-mile
radius. The Subject Property does not contain merchantable tree species and there is no evidence in the record that
the Subject Property has been employed for forestry uses historically. The Hearings Officer finds this section is
not relevant/applicable because the Subject Property is not "forest land."
Division 33 - Agricultural Lands & Statewide Planning Goal 3 - Agricultural Lands;
OAR 660-015-0000(3)
To preserve and maintain agricultural lands.
Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future
needs for agricultural products, forest and open space and with the state's agricultural land use policy
expressed in ORS 215.243 and 215.700.
FINDING: Goal 3 defines Agricultural Land, which is repeated in OAR 660-033-0020(1). The Hearings Officer
incorporates the findings for the Deschutes County Comprehensive Plan, Chapter 2, Resource Management,
Section 2.2 Agricultural Lands, Goal 1 as set forth above as additional findings for Goal 3, OAR 660-015-
0000(3).
OAR 660-033-0020, Definitions
For purposes of this division, the definitions in ORS 197.015, the Statewide Planning Goals, and OAR
Chapter 660 shall apply. In addition, the following definitions shall apply:
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as
predominantly Class I -IV soils in Western Oregon and 1- VI soils in Eastern Oregon 2;
FINDING: The Hearings Officer incorporates the findings for the Deschutes County Comprehensive Plan,
Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1 as set forth above as additional findings
for this section. The Hearings Officer also incorporates as additional findings for this section the Preliminary
Findings for Certification of Soils Report (III.A.2).
The Red Hills Soils Report included the following conclusion language:
"The NRCS WEBSOILSURVEYshows the subjectproperty is predominantly non -high value farmland,
Class 7 and 8 and does not meet the definition of agricultural land within the meaning of OAR 660-033-
0020(1)(b), as it is not adjacent to or intermingled with land in capability classes 1-6 within a farm unit.
There is no clear evidence that the Capability Class 6 non -irrigated soils on the subject property were
farmed or utilized in conjunction with any farming. "
As noted in prior findings the Hearings Officer finds the Red Hills Soils Report to be prepared by a qualified
professional soil scientist. The Hearings Officer finds the Red Hills Soils Report is credible and persuasive
evidence. Based upon the incorporated findings and the Red Hills Soils Report the Hearings Officer finds the
Z OAR 660-033-0020(5): "Eastern Oregon" means that portion of the state lying east of a line beginning at the intersection of the northern
boundary of the State of Oregon and the western boundary of Wasco County, then south along the western boundaries of the Counties of
Wasco, Jefferson, Deschutes and Klamath to the southern boundary of the State of Oregon.
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 36 of 51
Subject Property is made up of predominately NCRS Class 7 and 8 soils. Considering all relevant factors,
including the soil characteristics, the Hearings Officer finds the Subject Property is not Agricultural Land as
defined by relevant laws/regulations.
(B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a),
taking into consideration soil fertility; suitability for grazing; climatic conditions;
existing and future availability of water for farm irrigation purposes; existing land use
patterns; technological and energy inputs required, and accepted farming practices;
and
FINDING: The Hearings Officer incorporates the findings for the Deschutes County Comprehensive Plan,
Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal I as set forth above as additional findings
for this section. The Hearings Officer also incorporates as additional findings for this section the Preliminary
Findings for Certification of Soils Analysis (III.A.2).
Staff concluded its findings for this criterion by stating:
"Staff agrees with the applicant that many of the factors surrounding the subject property — such as level
of development in the surrounding area, soil fertility, and amount of irrigation required result in a
relatively low possibility of farming on the subject property. Staff requests the Hearings Officer make
specific findings on this issue. "
The Hearings Officer responds to Staff s quoted request for "specific findings on this issue" by stating that the
Hearings Officer, based upon the incorporated findings and the Red Hills Soil Report, finds that Applicant
considered and addressed each of the factors set forth in the criterion with substantial credible evidence. The
Hearings Officer finds that based upon the incorporated findings and the Red Hills Soil Report that each of the
relevant factors set forth in this criterion was adequately considered and addressed.
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby
agricultural lands.
FINDING: The Applicant offered the following response in its submitted Burden of Proof statement:
"The subject property is not land necessary to permit farrn practices to be undertaken on adjacent or
nearby lands. The following, facts are shown by the Applicant's discussion of surrounding development in
Section E of this application above, and by the additional information provided below. "
The submitted Burden of Proof also included the following summary of all EFU-zoned properties within an area
of approximately one mile of the subject property.
"West: Properties to the west of the subject property, with one exception, are separated from the subject
property by Ward/Hamby Roads. The road makes it infeasible to use the subject property for farm use in
conjunction with these properties and much of that property was recently rezoned to MUA-10 (Marken
Trust, East Bend LLC, and Te Amo Despacio). Additionally, the subject property is not necessary to
permit farm practices to be undertaken on adjacent or nearby lands to the west. There is no recent history
of farming on properties to the west.
ADJOINING PROPERTIES SOUTH OF PROPERTY
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 37 of 51
Tax Lots 900 and 1000 abut Bear Creek Road. The property south of Bear Creek Road is within Dobbin
Estates, an approved residential subdivision. There is no farming or potential for farming on that
property.
FARM PROPERTIES NEARBY TO WEST, SOUTHAND SOUTHWEST, AND NORTHWEST OF
ADJOINING PROPERTIES
North: Most of the land north of the subject property is privately owned and currently used for
institutional purposes and commercial enterprises. There are several large solar farms, a church, a
Christian center, and an electric power facility. Further to the northeast is Big Sky Park. Any farming is
far to the north, a significant distance, from the subject property. Moreover, it is separated physically
from the subject property by Highway 20, other major roads, and intervening non farm uses making it
infeasible to farm with the subject property.
East: The non -adjacent property to the east of Tax Lots 900 and 1000 is primarily devoted to large acre
residential uses and hobby farms. In light of the many surrounding non farm uses that have been in
existence for years and the amount of MUA-10 zoned property in the area already, rezoning the subject
property will not impact_ farming on that parcel. The properties east of Tax Lots 100, 300, and 400 are
primarily MUA zoned large estate properties that are not used in farming operations and are separated
by Erickson Road.
South: The property south of Tax Lots 300, 400, and 100 is either part of the subject property or the
property described above. As discussed earlier, the property south of Tax Lots 900 and 1000 are part of 'a
platted residential subdivision. Rezoning the subject property to MUA-10 will not impact farming on any
of that property. "
Pages 26 to 27 of the Burden of Proof include tables that list surrounding properties and include information on
potential farm uses. These tables provide detailed information on the existing surrounding uses, potential farm
practices, and reasons why they do not require the subject property to operate. Applicant also addressed this
criterion/standard in its Final Argument (June 6, 2025, page 9).
Staff (Staff Report, pages 33 & 34) addressed this criterion/standard as follows:
"Staff agrees with the applicant's analysis and finds no feasible way that the subject property is
necessary for the purposes of permitting farm practices on any nearby parcels discussed in the Findings
of Fact section above, or the larger area more generally. This finding is based in part on poor quality,
small size, and existing development on surrounding EFU and MUA10 properties. ff the Hearings Offi-cer
disagrees with Staff's assessment, Staff requests the Hearings Officer make specific findings on this
issue. "
The Hearings Officer does not disagree with Staff s above -quoted assessment. The Hearings Officer, based upon
the incorporated findings, the Red Hills Soil Report and Applicant's final argument statements finds that the
Applicant adequately address and consider the factors listed in this criterion/standard and that the conclusion
reached that the Subject Property is not Agricultural Land is reasonable and appropriate.
(b) Land in capability classes other than I-IVII--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;
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 38 of 51
FINDING: The Applicant provided the following response in its Burden of Proof:
"The subject property is not and has not been a part of a farm unit. It has not been farmed. As a result,
this rule does not apply to the County's review of this application.
Even if the subject property is considered to be a farm unit', despite the fact it has never been farmed,
Goal 3 applies a predominant soil test to determine if a property is `agricultural land. ' The predominant
soils classification of the subject property is Class VII and VIII which provides no basis to inventory the
property as agricultural land, unless the land is shown to be, in fact, productive farmland.
As confirmed by the accepted soils maps, the predominant soil types found on the property are Class VII
and VIII, non-agricultural land. Some Class VI soils are intermingled with the non-agricultural soil, not
vice versa. As a result, this rule does not require the Class VII and VIII soils to be classified agricultural
land. "
Applicant also included comments related to this criterion/standard in its Final Argument (page 9). The Hearings
Officer finds the Applicant's above -quoted comments, its Final Argument statements and the Red Hills Soils
Report to be credible and persuasive evidence and argument. The Hearings Officer finds, based upon evidence
contained in the Applicant's Burden of Proof, its Final Argument comments and the Red Hills Soil Report, that
Applicant considered and provided substantial evidence that it considered (inventoried) adjacent properties in the
context of this criterion/standard.
(c) "Agricultural Land" does not include land within acknowledged urban growth
boundaries or land within acknowledged exception areas for Goal 3 or 4.
FINDING: The Subject Property is not within an acknowledged urban growth boundary or land within
acknowledged exception areas for Goals 3 or 4.
OAR 660-033-0030, Identifying_ Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be inventoried as
agricultural land.
(2) When a jurisdiction determines the predominant soil capability classification of a lot or parcel
it need only look to the land within the lot or parcel being inventoried. However, whether land
is "suitable for farm use" requires an inquiry into factors beyond the mere identification of
scientific soil classifications. The factors are listed in the definition of agricultural land set
forth at OAR 660-033-0020(1)(a)(B). This inquiry requires the consideration of conditions
existing outside the lot or parcel being inventoried. Even if a lot or parcel is not predominantly
Class I -IV soils or suitable for farm use, Goal 3 nonetheless defines as agricultural "lands in
other classes which are necessary to permit farm practices to be undertaken on adjacent or
nearby lands': A determination that a lot or parcel is not agricultural land requires findings
supported by substantial evidence that addresses each of the factors set forth in 660-033-
0020(1).
FINDING: The Hearings Officer incorporates the findings for the Deschutes County Comprehensive Plan,
Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1 as set forth above as additional findings
for this section. The Hearings Officer also incorporates as additional findings for this section the Preliminary
Findings for Certification of Soils Analysis (III.A.2).
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 39 of 51
The Applicant argued that the Subject Property is not Agricultural Land, as referenced in OAR 660-033-0030(1)
above, because of the existence of barriers for farm use including poor quality soils and the development pattern
of the surrounding area. The Hearings Officer finds that Applicant adequately addressed OAR 660-033-0030(2)
by submitting substantial evidence addressing the factors set forth in the findings of OAR 660-033-00020(1),
including OAR 660-033-0020(1)(a)(b) in findings above. The Hearings Officer incorporates the findings for
OAR 660-033-00020(1), including OAR 660-033-0020(l)(a)(b) as findings for this criterion/standard.
The Hearings Officer, based upon the incorporated findings, the Red Hills Soil Report and Applicant's Final
Argument statements, finds that this criterion was adequately considered and addressed and that the Subject
Property is not Agricultural Land and is also "not suitable for faun use."
(3) Goal 3 attaches no significance to the ownership of a lot or parcel when determining whether it
is agricultural land. Nearby or adjacent land, regardless of ownership, shall be examined to the
extent that a lot or parcel is either "suitable for farm use" or "necessary to permit farm
practices to be undertaken on adjacent or nearby lands" outside the lot or parcel.
FINDING: The Hearings Officer incorporates the findings for the Deschutes County Comprehensive Plan,
Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1 as set forth above as additional findings
for this section. The Hearings Officer also incorporates as additional findings for this section the Preliminary
Findings for Certification of Soils Analysis and the findings for OAR 660-033-00020(1), including OAR 660-
033-0020(l)(a)(b).
The Hearings Officer finds that Applicant provided in the record substantial evidence showing the Subject
Property is not Agricultural Land, is not "suitable for farm use" and is not necessary to permit farm practices to be
undertaken on adjacent or nearby lands. The Hearings Officer finds that the ownership of the Subject Property
was not used to determine whether the parcel is Agricultural Land.
(S)(a) More detailed data on soil capability than is contained in the USDA Natural Resources
Conservation Service (NRCS) soil maps and soil surveys may be used to define agricultural
land. However, the more detailed soils data shall be related to the NRCS land capability
classification system.
(b) If a person concludes that more detailed soils information than that contained in the Web Soil
Survey operated by the NRCS as of January 2, 2012, would assist a county to make a better
determination of whether land qualifies as agricultural land, the person must request that the
department arrange for an assessment of the capability of the land by a professional soil
classifier who is chosen by the person, using the process described in OAR 660-033-0045.
FINDING: The Hearings Officer incorporates as additional findings for this section the Preliminary Findings for
Certification of Soils Analysis (III.A.2). The Hearings Officer finds that based on the incorporated Preliminary
Findings COLW's issue with this section is adequately addressed. However, as additional findings for this
criterion the Hearings Officer adopts the following Staff comments (Staff Report, pages 36 - 29).
"The soil study prepared by Mr. Gallagher provides more detailed soils information than contained in
the NRCS Web Soil Survey. NRCS sources provide general soils data for large units of land and provide a
Land Capability Classification (LLC) system that classifies soils class I through 8. An LCC rating is
assigned to each soil type based on rules provided by the NRCS, and the soil units that are mapped on the
subject property are complexes made up of soils with various LCC ratings.
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 40 of 51
The NRCS mapping for the subject properties is shown below in Figure 1. According to the NRCS Web
Soil Survey tool, the subject property contains approximately 80 acres of soil unit 36A, 0.6 acres of soil
unit 36B, and 160 acres of soil unit 58C.
The submitted soil study does not dispute the NRCS soils map for the subject property, or provide updated
mapping. Instead, the soil study provides a methodology for calculating the LCC rating for the complex
soil units identified within the subject property.
Table 1: Composition of Soil Types within Subject Property
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 41 of 51
Table 3. Coverage of soils after distributing weighted amounts of 58C by
Caoabiiity classification.
Map
Symbol
Map Unit
Component
High -value
Farmland
Status
Agricuitur
al lands
Nonirrigated
Capability
Class
Acre
NRCS soli
map by unit
Coverage
-0/®-
36A,
36B
Deskamp
N (not
irrigated)
'Yes
6
115
48
58C
Gosney
N
No
7
83
35
58C
Rock
outcrop
N
No
8
42
17
Total
P40
100
The soil study included the following conclusion regarding the productivity of soils within the subject
property:
The NRCS WEBSOILSURVEYshows the subject property is predominantly non -high value
farmland, Class 7 and 8 and does not meet the definition of agricultural land within the meaning
of OAR 660-033-0020(1)(b), as it is not adjacent to or intermingled with land in capability
classes 1-6 within a farm unit. There is no clear evidence that the Capability Class 6 non -
irrigated soils on the subject property were farmed or utilized in conjunction withh any farming
operation in the past.
The soil study applies a weighted average methodology to calculate the LCC rating of the 58C soil unit,
Gosney-Rock outcrop- Deskamp Complex, which comprises the majority of the subject property. As
described above, this soil unit is a complex and may contain both high value soils and non -high value
soils. Mr. Gallagher applied information from the NRCS, which estimates the following amount of Class
6, Class 7, and Class 8 soils within this complex:
The NRCS gives percentages of three of the main components of this map unit as 50 percent
Gosney (Class 7) 25 percent rock outcrop (Class 8) and 20 percent Deskamp (Class 6 and high
value). NRCS includes five percent unspecified contrasting soils in the map unit composition. In
my acreage calculations the unspecified five acres were equally divided between class 6, 7 and 8
soils.
In his report, Mr. Gallagher utilizes the information provided by NRCS on the typical composition of the
58C soil unit. He multiplies the 160 acres of 58C soils by the percentage of Class 6, 7, and 8 soils within
the 58C soil unit. This information appears to be based on general information provided by NRCS on the
composition of the 58C soil unit and is not specific to the subject property.
The applicant cites the Board of County Commissioners decision for file PA-11-7, ZC-I1-2 (Department
of State Lands) in support of this methodology3. In this prior Zone Change decision, testimony was
provided by staff from NRCS and a weighted average was presented as one of three potential
methodologies for calculating the LCC ratings within a complex soil unit. In the Department of State
Lands decision, the Board found that they had discretion to choose any of the three methodologies to
determine whether the soils on the property qualified as `agricultural land. 'Staff requests the Hearings
3 Staff references a letter from the Applicant dated May 28, 2024.
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 42 of 51
Officer make specific findings on this issue and determine whether the proposed methodology is
consistent with OAR 660-033-0030. "
The Hearings Officer finds that the Red Hills Soil Report was prepared by a certified soil scientist. As such, the
Hearings Officer finds that the author of the Red Hills Soil Report is a duly recognized expert in the soil science
field. The Hearings Officer also finds that COLW offered no evidence from a soil scientist. Rather, COLW soils
arguments were presented by a staff attorney who did not provide the Hearings Officer any evidence he was
trained or experienced as a soil scientist. The Hearings Officer, comparing the testimony of the Applicant's
recognized soil scientist and the testimony presented by COLW, finds that the testimony of the Applicant's soil
scientist is significantly more credible and persuasive than the statements and opinions offered by COLW. The
Hearings Officer also represents that he is not a professionally trained soil scientist and therefore finds that he
must rely upon the professional opinions to determine appropriate methodologies to assess the factors required in
OAR 660-033-0030. The Hearings Officer finds that there is simply no substantial and credible evidence in the
record to dispute the methodologies used in the Red Hills Soil Report.
(c) This section and OAR 660-033-0045 apply to:
(A) A change to the designation of land planned and zoned for exclusive farm use, forest
use or mixed farm forest use to a non -resource plan designation and zone on the basis
that such land is not agricultural land; and
FINDING: The Hearings Officer incorporates the findings for the Deschutes County Comprehensive Plan,
Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1 as set forth above as additional findings
for this section. The Hearings Officer also incorporates as additional findings for this section the Preliminary
Findings for Certification of Soils Analysis (III.A.2) and the findings for OAR 660-033-00020(1), including OAR
660-033-0020(1)(a)(b).
The Applicant requested approval of a non -resource plan designation on the basis that the Subject Property is not
Agricultural Land as that phrase is defined by relevant laws/rules. The Hearings Officer finds, based upon the
incorporated findings, that this criterion/standard is satisfied.
(d) This section and OAR 660-033-0045 implement ORS 215.211, effective on October 1, 2011.
After this date, only those soils assessments certified by the department under section (9) of this
rule may be considered by local governments in land use proceedings described in subsection
(c) of this section. However, a local government may consider soils assessments that have been
completed and submitted prior to October 1, 2011.
FINDING: The Hearings Officer incorporates as additional findings for this section the Preliminary Findings for
Certification of Soils Analysis (III.A.2).
(Staff Report, page 39) provided the following comments related to this criterion/standard:
"The applicant did not submit acknowledgement from Department of Land Conservation and
Development (DLCD) that the soil study is complete and consistent with DLCD's reporting requirements.
However, it is not apparent to staff whether a DLCD completeness review is required for this soil study,
since it expands on the NRCS soil map but does not include a full on -site assessment. The applicant relies
on the soils report ftom Mr. Gallagher to determine whether the subject property consists predominantly
of Class 1-6 soils. As described below, staff requests the Hearings Officer make specific findings
regarding the submitted soil study and whether it has been correctly applied in the context of this
section. "
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 43 of 51
The Hearings Officer, based upon the incorporated findings, finds that the Red Hills Soil Report is not a "soil
assessment" as referenced in this criterion.
(e) This section and OAR 660-033-0045 authorize a person to obtain additional information for
use in the determination of whether land qualifies as agricultural land, but do not otherwise
affect the process by which a county determines whether land qualifies as agricultural land as
defined by Goal 3 and OAR 660-033-0020.
FINDING: The Hearings Officer incorporates the findings for the Deschutes County Comprehensive Plan,
Chapter 2, Resource Management, Section 2.2 Agricultural Lands, Goal 1 as set forth above as additional findings
for this section. The Hearings Officer also incorporates as additional findings for this section the Preliminary
Findings for Certification of Soils Analysis (III.A.2) and the findings for OAR 660-033-00020(1), including OAR
660-033-0020(1)(a)(b).
Staff (Staff Report, pages 39 & 40) provided the following comments related to this criterion/standard:
"Based on the information above, it is not clear to staff if the submitted soil study was prepared
according to the procedures set forth in OAR 660-033-0045. Staff requests the Hearings Of make
findings regarding the submitted soil study, and whether it provides sufficient information to determine
the percentage of the subject property that is comprised of Class 7 and Class 8 soils. "
The Hearings Officer finds that the Red Hills Soil Report was prepared by a certified soil scientist and utilized
methodologies consistent with professional standards. The Hearings Officer finds the Red Hills Soil Report is not
a "soil assessment" as described in OAR 660-033-0030 and was prepared consistent with OAR 660-033-0045.
DIVISION 12, TRANSPORTATION PLANNING
OAR 660-012-0060 Plan and Land use Regulation Amendments
(1) If an amendment to a functional plan, an acknowledged comprehensive plan, or a land use
regulation (including a zoning map) would significantly affect an existing or planned
transportation facility, then the local government must put in place measures as provided in
section (2) of this rule, unless the amendment is allowed under section (3), (9) or (10) of this
rule. A plan or land use regulation amendment significantly affects a transportation facility if
it would.
(a) Change the functional classification of an existing or planned transportation facility
(exclusive of correction of map errors in an adopted plan);
(b) Change standards implementing a functional classification system; or
(c) Result in any of the effects listed in paragraphs (A) through (C) of this subsection
based on projected conditions measured at the end of the planning period identified in
the adopted TSP. As part of evaluating projected conditions, the amount of traffic
projected to be generated within the area of the amendment may be reduced if the
amendment includes an enforceable, ongoing requirement that would demonstrably
limit traffic generation, including, but not limited to, transportation demand
management. This reduction may diminish or completely eliminate the significant
effect of the amendment.
(A) Types or levels of travel or access that are inconsistent with the functional
classification of an existing or planned transportation facility;
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 44 of 51
(B) Degrade the performance of an existing or planned transportation facility such
that it would not meet the performance standards identified in the TSP or
comprehensive plan; or
(C) Degrade the performance of an existing or planned transportation facility that
is otherwise projected to not meet the performance standards identified in the
TSP or comprehensive plan.
FINDING: This above language is applicable to the proposal because it involves an amendment to an
acknowledged comprehensive plan. The proposed plan amendment would change the designation of the Subject
Property from AG to RREA and change the zone from EFU to MUA10. The Applicant is not, as part of this
current application, proposing any land use development of the Subject Property.
The Applicant submitted a Transportation Planning Rule ("TPR") assessment (Exhibit 12, dated February 2,
2024) prepared by Scott Ferguson of Ferguson and Associates, Inc. As noted in the agency comments section
above, the County Transportation Planner identified deficiencies with the submitted TPR analysis and requested
additional information. Specifically, the County Transportation Planner requested additional information to allow
a deterinination as to whether the proposal would have a significant effect on transportation facilities. The
Applicant then submitted a revised TPR analysis dated February 28, 2025, prepared by Scott Ferguson, PE, of
Ferguson and Associates, Inc.
The revised TPR assessment was reviewed by the County Transportation Planner, who agreed with the report's
methodologies and conclusions. The Hearings Officer finds that the proposed plan amendment and zone change
will be consistent with the identified function, capacity, and performance standards of the County's transportation
facilities in the area. The Hearings Officer finds that the proposed zone change will not change the functional
classification of any existing or planned transportation facility or change the standards implementing a functional
classification system. Regarding the TPR analysis dated February 28, 2025, the County Transportation Planner
provided the following comments in an email dated March 5, 2025:
"... The revised analysis provides updated information related to the total —240.17 acres of subject
property. The fill build -out scenario included in the revision (considering redevelopment of the existing
solar faun portions of the subject property) aligns with staff's comments from 6111124. The report's
inclusion of modified acreage and assumed development credit for one existing single-family dwelling
complies with additional comments from staff's 6111124 email correspondence regarding the MUA10
Zone's worst case scenario analysis. I agree with the assumptions, methodologies, and conclusions
outlined in the revised analysis. "
Based on the County Senior Transportation Planner's comments and the revised traffic study from Ferguson and
Associates, Inc., the Hearings Officer finds compliance with the Transportation Planning Rule has been
effectively demonstrated.
DIVISION 15, STATEWIDE PLANNING GOALS AND GUIDELINES
OAR 660-015 Division 15 Statewide Planning Goals and Guidelines
FINDING: The Statewide Planning Goals and the Applicant's proposed findings are set forth below:
"Goal 1, Citizen Involvement. Deschutes County will provide notice of the application to the public
through mailed notice to affected property owners and by requiring the Applicant to post a proposed
land use action sign ' on the subject property. Notice of the public hearings held regarding this
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 45 of 51
application will be placed in the Bend Bulletin. A minimum of two public hearings will be held to
consider the application.
Goal 2, Land Use Planning. Goals, policies, and processes related to zone change applications are
included in the Deschutes County Comprehensive Plan and Titles 18 and 23 of the Deschutes County
Code. The outcome of the application will be based on findings of fact and conclusions of law related to
the applicable provisions of those laws as required by Goal 2.
Goal 3, Agricultural Lands. The Applicant has shown that the subject property is not agricultural land,
so Goal 3 does not apply.
Goal 4, Forest Lands. The existing site and surrounding areas do not include any lands that are suited
for forestry operations. Goal 4 says that forest lands 'are those lands acknowledged as forest lands as of
the date of adoption of this goal amendment. ' The subject property does not include lands acknowledged
as forest lands as of the date of adoption of Goal 4. Goal 4 also says that '[w]here **a plan amendment
involving forest lands is proposed,,forest land shall include lands which are suitable for commercial
forest uses, including adjacent or nearby lands which are necessary to permit forest operations or
practices and other forested lands that maintain soil, air, water, and, fish and wildlife resources. ' This
plan amendment does not involve any forest land. The subject property does not contain any
merchantable timber and is not located in a. forested part of Deschutes County.
Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces. The subject property does not
contain any inventoried Goal 5 resources.
Goal 6, Air, Water, and Land Resources Quality. The approval of this application will not cause a
measurable impact on Goal 6 resources. Approval will make it more likely that the irrigation and pond
water rights associated with the property will ultimately be returned to the Deschutes River or used to
irrigate productive farm ground found elsewhere in Deschutes County.
Goal 7, Areas Subject to Natural Disasters and Hazards. This goal is not applicable because the subject
property is not located in an area that is recognized by the Comprehensive Plan as a known natural
disaster or hazard area.
Goal 8, Recreational Needs. This goal is not applicable because the property is not planned to meet the
recreational needs of Deschutes County residents and does not directly impact areas that meet Goal 8
needs.
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 impact economic activities of the state or area.
Goal 10, Housing. The County's Comprehensive Plan Goal 10 analysis anticipates that farm properties
with poor soils, like the subject property, will be converted from EFU to MU4-10 or RR-10 zoning, and
that these lands will help meet the need for rural housing. Approval of this application, therefore, is
consistent with Goal 10 as implemented by the acknowledged Deschutes County Comprehensive Plan.
Goal 11, Public Facilities and Services. The approval of this application will have no adverse impact on
the provision ofpublic facilities and services to the subject site. Utility service providers have confirmed
that they have the capacity to serve the maximum level of residential development allowed by the MUA-10
zoning district.
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 46 of 51
Goal 12, Transportation. This application complies with the Transportation System Planning Rule, OAR
660-012-0060, the rule that implements Goal 12. Compliance with that rule also demonstrates
compliance with Goal 12.
Goal 13, Energy Conservation. The approval of this application does not impede energy conservation.
The subject property is located in a part of the community that contains a large amount of rural
residential development. Providing homes in this location, as opposed to more remote rural locations,
will conserve energy needed for residents to travel to work, shopping, and other essential services.
Goal 14, Urbanization. This goal is not applicable because the Applicant's proposal does not involve
property within an urban growth boundary and does not involve the urbanization of rural land. The
MUA-10 zone is an acknowledged rural residential zoning district that limits the intensity and density of
developments to rural levels. The compliance of this zone with. Goal 14 was recently acknowledged when
the County amended its Comprehensive Plan. The plan recognizes the fact that the MUA-10 and RR zones
are the zones that will be applied to lands designated Rural Residential Exception Areas.
Goal 15, Willamette Greenway. This goal does not apply because the subject property is not located in
the Willamette Greenway.
Goals 16 through 19. These goals do not apply to land in Central Oregon."
Staff (Staff Report, page 43) provided the following comments:
"Staff generally accepts the applicant's responses and finds compliance with the applicable Statewide
Planning Goals has been effectively demonstrated. However, staff notes additional analysis may be
required regarding Goal 5, Natural Resources, Scenic and Historic Areas and Open. Spaces. A portion of
the subject property is located within the Landscape Management Combining Zone associated with
Highway 20, and this scenic corridor is identified in the County's Goal 5 inventory.
The Board decision for Deschutes County files 247-22-000573-ZC, 574-PA included the following
findings:
Pursuant to 660-023-0250(3), the county does not have to apply Goal 5 as part of a Post
Acknowledgement Plan Amendment (`PAPA ) unless the PAPA affects a Goal 5 resource.
Pursuant to OAR 660-023-250(3)(b), a PAPA affects a Goal 5 resource if the PAPA would allow
new uses that could be conflicting uses with a particular significant Goal 5 resource site on an
acknowledged resource list. In this case, the Goal 5 resource is the Highway 97 scenic corridor.
In the decision for files 247-22-000573-ZC, 574-PA, the Board ultimately determined that the proposed
Zone Change would not require a new Economic, Social, Environmental, and Energy (ESEE) analysis.
The Board found that the ESEE analysis that established the Highway 97 scenic corridor considered a
wide range of potential uses, and the change in zoning from EFU to Rural Industrial would not introduce
new conflicting uses. The applicant has not submitted specific arguments regarding whether the proposed
MUA10 zoning would allow new, conflicting uses within the Landscape Management Combining Zone
associated with Highway 20. Staff requests the Hearings Officer make findings on whether the applicant
has sufficiently demonstrated compliance with Statewide Planning Goal 5. "
The Applicant provided (May 9, 2025 submission, pages 7 — 11 [plus an attached ESEE analysis]) a general
response to Staff s above -stated Statewide Goals and a specific response to Staff s ESEE concerns. The Hearings
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 47 of 51
Officer finds it is important to include, within this recommendation, the entirety of Applicant's May 9, 2025
statement related to Statewide Goals. Applicant, in the May 9, 2025 submission, stated:
"OAR 660-015-0010, Statewide Planning Goals and Guidelines
A. Statewide Planning Goals
On pages 32 and 33 in the Burden of Proof, the applicant discussed each of the applicable Statewide
Planning Goals. Neither County staff nor any public participant provided any contrary position. Thus,
the applicant will not address each of the Goals again in this letter but will discuss the two that appear
most prominent in prior similar applications.
Goal 14-Urbanization: Goal 14 addresses how counties must evaluate urban uses on rural land. Goal
14 does not apply to this application and an exception to it is not required because the County has
consistently determined that the uses allowed in the MUA-10 zone are not urban uses. See File 247-24-
000392-PA/393-ZC. As the hearings of in that case noted, LUBA had accepted the Couniy's
determination. Central Oregon LandWatch v. Deschutes County, _ Or LUBA _ (LUBA No. 2023-049,
Feb. 15, 2024). This Hearings Officer made the same.finding in File 247-24-000404-PA/000405-ZC.
The recent decision in Department of Land Conservation and Development v. Clackamas County, 335 Or
App 207 (2024), does not impact the County and LUBA's conclusion. That case involved the regulation
that applies to amendments to properties already within a residential exception area reducing parcel size
from 10 acres to two acres. The applicant understands that this issue was addressed in File 247-24-
000404-PA1000405-ZC.
Goal 5-Natural Resources, Scenic and Historic Areas, and Open, Spaces: As County staff noted, there is
one Goal 5 resource on the subject property —a scenic corridor subject to the LM Overlay. The County
conducted its Goal 5 assessment in 1992. The LM Combining Overlay was implemented to achieve
consistency with Goal 5. However, in a recent hearings officer decision involving Cascade Academy, a
hearings off cer applied a recent LUBA decision to conclude that because a change to MUA-10 zoning
allows uses on the property that would not necessarily been considered then, a new ESEE and analysis is
required.
OAR 660-023-0250:
(3) Local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA
affects a Goal 5 resource. For Purposes of this section, a PAPA would affect a Goal 5 resource only if -
(a) The PAPA creates or amends a resource list or a portion of an acknowledged plan or land
use regulation adopted in order to protect a significant Goal 5 resource or to address specific
requirements of Goal 5;
(b) The PAPA allows new uses that could be conflicting uses with a particular significant Goal 5
resource site on an acknowledged resource list; or
(c) The PAPA amends an acknowledged UGB and factual information is submitted
demonstrating that a resource site, or the impact areas of such a site, is included in the amended
UGB area.
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 48 of 51
The applicant believes that the County is not required to apply Goal 5 to this application because uses
allowed in the requested MUA-10 zone will not conflict with the Goal 5 resources identified. First, the
uses allowed in the MUA-10 zone are rural, low -intensity uses that leave ample opportunity to preserve
any scenic view from Highway 20 that may exist. Second, development allowed under the MUA-10 zone
reviewed for consistency with the LMstandards will not have any negative impact on the view from
Highway 20. Indeed, even the formal agency comment from DLCD questioned the need for any new
ESEE evaluation in this application.
However, to the extent the applicant must address Goal 5, the applicant will demonstrate how the Goal 5
considerations in the OARS support a decision by the County to allow conflicting uses to compel a
conclusion that to the extent the MUA-10 zone allows for conflicting uses, those uses should be allowed in
a limited manner after the application of all applicable development standards in Chapter DCC 18.032
and the LM Overlay.
Impact of the Board's decision on File 247-21-00081-PA/247 21-000882-ZC (LBNW LLC)
The Board's recent decision in the above file is instructive and should guide the Hearings Officer here.
In that decision, the County Board explained in detail how the County applies the Goal 5 conflicting use
analysis.
OAR 660-23-0030-Inventory Process
In LBNW, LLC, the Board determined that the inventory process required under this rule does not have to
be completed for a PAPA zoning amendment. The County may rely on the existing inventory. As noted,
the existing inventory identifies a single resource -the scenic corridor.
OAR 660-023-0040-ESEE Decision Process
OAR 660-023-0040 describes the process for evaluating potentially conflicting uses.
OAR 660-023-0040(1):
(1) Local governments shall develop a program to achieve Goal 5 for all significant resource
sites based on an analysis of the economic, social, environmental, and energy (ESEE)
consequences that could result from a decision to allow, limit, or prohibit a conflicting use. This
rule describes four steps to be followed in conducting an ESEE analysis, as set out in detail in
sections (2) through (5) of this rule. Local governments are not required to follow these steps
sequentially, and some steps anticipate a return to a previous step. However, findings shall
demonstrate that requirements under each of the steps have been met, regardless of the sequence
followed by the local government. The ESEE analysis need not be lengthy or complex but should
enable reviewers to gain a clear understanding of the conflicts and the consequences to be
expected. The steps in the standard ESEE process are as follows:
(a) Identify conflicting uses;
(b) Determine the impact area;
(c) Analyze the ESEE consequences; and
(d) Develop a program to achieve Goal 5.
(a) Identify conflicting uses;
Consistent with the decision in File 247-21-000881-PA1247-000882-ZC, the potentially conflicting uses
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 49 of 51
are those uses permitted outright or conditionally in the proposed MUA-10 zone. DCC 18.32.020 lists
the outright permitted uses. Some uses present no conflict such as agriculture uses and propagation of
forest products. Some of the more common uses are large acre residential developments, accessory
dwellings, equestrian/horse facilities, home occupations, irrigation systems, and road projects.
DCC 18.32.030 identifies the conditional uses permitted in the MUA-10 zone. They include commercial
activities in conjunction with farm use, dude ranches, guest houses, private parks/playgrounds, personal
use landing strips, golf courses planned development, and cluster developments.
(b) Determine impact area;
For the Scenic LM resource, the impact area is portions of Tax Lots 900, 1000, 100, and 400 within .25
miles of the centerline of Highway 20.
(c) Analyze the ESEE consequences;
The applicant included a chart that presents the required ESEE analysis in a simple, short manner as
allowed under- OAR 660-023-0040(1). There is no requirement that an applicant has the analysis
prepared outside. Further, OAR 660-004-0040(4) directs that the County adopt the ESEE analysis. The
rules permit an applicant to present its information on the consequences and the County Board is allowed
to accept, reject, or supplement those during the review process. The applicant's chart allows the County
to make any required findings to support the application, for Goal 5 considerations.
The applicant submits that another factor to consider, as was the case in File 247-21-000881-PA/882-ZC,
is that as to the property north of Highway 20, the impact area has already been developed with uses at
least as intense and impactful as the conflicting uses allowed under the MUA-10 zoning that the applicant
requests. There is a church, a Christian Life Center, a PGE service building, and a large solar farm.
Any additionally approved uses will not have any further appreciable impact on that side of Highway 20.
(d) Develop a program to achieve Goal 5.
The County, after completing its ESEE consideration process, has three options for treating
conflicting uses.
(a) A local government may decide that a significant resource site is of such importance
compared to the conflicting uses, and the ESEE consequences of allowing the conflicting uses are
so detrimental to the resource, that the conflicting uses should be prohibited.
(b) A local government may decide that both the resource site and the conflicting uses are
important compared to each other, and, based on the ESEE analysis, the conflicting uses should
be allowed in a limited way that protects the resource site to a desired extent.
(c) A local government may decide that the conflicting use should be allowed fully,
notwithstanding the possible impacts on the resource site. The ESEE analysis must demonstrate
that the conflicting use is of sufficient importance relative to the resource site, and must indicate
why measures to protect the resource to some extent should not be provided, as per subsection (b)
of this section.
The applicant submits that based on the ESEE considerations, the County should find that both the scenic
resource and the conflicting uses allowed in the MUA-10 zone are important to each other and that
conflicting uses should be allowed in a limited manner that protects the resource site to the extent
desired. In other words, the applicant advocates for the middle ground in the above regulation.
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 50 of 51
Conflicting uses should be allowed only after the application of the development standards in DCC
Chapter 18.32 and the LM Overlay to ensure protection of any scenic resource. "
The Hearings Officer finds Applicant's above -quoted statement, along with the ESEE Analysis attached to the
May 9 2025 submission, is a comprehensive evidentiary presentation and accurately reflects relevant laws and
rules. The Hearings Officer finds the ESEE Analysis adequately addresses issues relevant to Goal 5. The
Hearings Officer finds Applicant's May 9, 2025 submission sufficiently addressed Goal 5 requirements.
The Hearings Officer agrees with Applicant's Goal 14 comments.
The Hearings Officer addressed the Applicant's May 9, 2025 nonconforming use issue in earlier findings. As
noted in those findings the Hearings Officer concluded that it would be inappropriate to opine as to the current or
fixture legality of the Solar Array as Applicant did not formally apply for a verification of the validity of the Solar
Array. If Applicant desires to "validate" the Solar Array the Applicant must follow relevant application steps
(including a formal application and payment of fees) to accomplish that goal.
IV. CONCLUSION & RECOMMENDATION
The application in this case is to change the comprehensive plan and zoning designations for the Subject
Property. Staff questioned, in the Staff Report, whether the Applicant provided adequate evidence to
support findings that various approval criteria/policies were met/satisfied. COLW argued that the
application should be denied for a number of reasons. COLW's primary issues related to whether or not
the application met the standards set forth in DCC 18.136.020 and whether the Subject Property is
Agricultural Land. COLW also argued that the Applicant's soil report (Red Hills Soils Report) could not
be considered by the Hearings Officer as evidence in this case because the Red Hills Soils Report had not
been certified by the Oregon Division of Land Conservation and Development.
The Hearings Officer addressed Staffs concerns and COLW's arguments in the findings for this
recommendation. The Hearings Officer, based upon the evidence in the record and the arguments made
by Staff, Applicant, COLW and other participants, concluded that all relevant approval criteria and goals
were, or could be, met/satisfied.
The Hearings Officer recommends approval of Applicant's proposal.
DESCHUTES COUNTY HEARINGS OFFICER
P-11.0 , W;
f
Gregory J. Frank
Deschutes County Hearings Officer
247-24-000097-PA, 098-ZC, 247-25-000021-MA Page 51 of 51
Zvi E S CO
G2 BOARD OF
COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS MEETING
9:00 AM, WEDNESDAY, AUGUST 20, 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
citizeninput@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
Adoption of Resolution No. 2025-035 to acquire Right of Way for the construction of
road improvements on Tumalo Reservoir Road
2. Consideration of Board Signature on letters appointing Marie Manes and Wendy
Jackson, and reappointing Lindsay Atagi, Sarah Baron, Sharity Ludwig, Robert Ross and
Colleen Sinsky, for service on the Public Health Advisory Board (PHAB)
3. Approval of the minutes of the BOCC July 23, 2025 meeting
ACTION ITEMS
4. 9:10 AM Public Hearing and consideration of Order 2025-034 approving the
annexation of two properties in the 61000 block of Cabin Lane into the Bend
Park & Recreation District
5. 9:15 AM Public Hearing on an application submitted by BLC LLC to rezone 240 acres
from Exclusive Farm Use to Multiple Use Agricultural with a corresponding
Comprehensive Plan designation change from Agriculture to Rural
Residential Exception Area
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.
August 20, 2025 BOARD OF COUNTY COMMISSIONERS MEETING Page 2 of 3
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
August 20, 2025 BOARD OF COUNTY COMMISSIONERS MEETING Page 3 of 3