HomeMy WebLinkAbout2026-118-Ordinance No. 2026-009 Recorded 4/21/2026REVIEWED
LEGAL COUNSEL
Recorded in Deschutes County CJ2026-118
Steve Dennison; County Clerk
Commissioners' Journal 04/21 /2026 1 1:07:15 AM
fps � 2026-113
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County
Code Title 23, the Deschutes County
Comprehensive Plan, to Change the
Comprehensive Plan Map Designation for
Certain Property From Agriculture to Rural
Residential Exception Area, and Amending
Deschutes County Code Title 18, the Deschutes
County Zoning Map, to Change the Zone
Designation for Certain Property From
Exclusive Farm Use to Multiple Use
Agricultural.
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* ORDINANCE NO. 2026-009
*
*
*
*
WHEREAS, Destiny Court Properties, LLC ("Applicant"), applied for changes to both the
Deschutes County Comprehensive Plan Map (247-22-000443-PA) and the Deschutes County
Zoning Map (247-22-000436-ZC), to change the Comprehensive Plan designation of the subject
property from Agricultural (AG) to Rural Residential Exception Area (RREA), and a corresponding
Zone Change from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10); and
WHEREAS, the Board of County Commissioners ("Board") issued a decision approving the
subject application on January 15, 2025, and the decision was thereafter appealed to the Oregon
Land Use Board of Appeals ("Land Use Board of Appeals"), which issued a Final Opinion and Order
on June 26, 2025, remanding the decision to the County for further review of two issues
("Remand"); and
WHEREAS, the Applicant initiated remand proceedings on December 23, 2025 (247-25-
000759-A) pursuant to Deschutes County Code ("DCC") Chapter 22.34; and
WHEREAS, as limited by the scope of the Remand, the Board reopened the record pursuant
to Order No. 2026-002 for submission of new testimony and evidence concerning the subject
property's suitability for farm uses identified in the record before the Board at the time of its
January 15, 2025 decision; and
PAGE 1 OF 3 - ORDINANCE NO. 2026-009
WHEREAS, after notice was given in accordance with DCC 22.34,030 and other applicable
law, a public hearing on remand was held before the Deschutes County Board of County
Commissioners on January 28, 2026, and the record closed on February 18, 2026; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as
follows:
Section 1. AMENDMENT. DCC Title 23, Deschutes County Comprehensive Plan Map, is
amended to change the plan designation for certain property described in Exhibit "A" and depicted
on the map set forth as Exhibit "B" from AG to RREA, with both exhibits attached and incorporated
by reference herein.
Section 2. AMENDMENT. DCCTitle 18, Zoning Map, is amended to change the zone designation
from EFU to MUA-10 for certain property described in Exhibit "A" and depicted on the map set forth
as Exhibit "C", with both exhibits attached and incorporated by reference herein.
Section 3. AMENDMENT. DCC Section 23.01.010, Introduction, is amended to read as
described in Exhibit "D" attached and incorporated by reference herein, with new language
underlined.
Section 4. AMENDMENT. Deschutes County Comprehensive Plan Section 5.12, Legislative
History, is amended to read as described in Exhibit "E" attached and incorporated by reference
herein, with new language underlined.
Section 5. FINDINGS. The Board adopts as its findings in support of this Ordinance the
Decision of the Board on remand as set forth in Exhibit "F" and incorporated by reference herein.
The Board also incorporates in its findings in support of this decision, the original Decision of the
Board attached as Exhibit "G", and the Recommendation of the Hearings Officer, attached as
Exhibit "H", each incorporated by reference herein.
Section 6. AGREEMENT. The Board adopts the Conditions of Approval Agreement as set
forth in Exhibit "I" that must be executed once this Ordinance becomes effective.
Section 7. EFFECTIVE DATE. This Ordinance takes effect on the 90t" day after the date of
adoption.
PAGE 2 OF 3 - ORDINANCE NO.2026-009
Dated this of �, 2026 BOARD OF COUNTY COMMiSSIONERS
OF DESCHUTES COUNTY, OREGON
— op po5 b
PHIL CHANG, Chair
ATTEST:
Recording Secretary
Date of 1 S` Reading: day of I , 2026.
Date of 2nd Reading: ) ,S day of 2026.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Phil Chang _ x
Anthony DeBone
Patti Adair X
Effective date: day of, 2026.
PAGE 3 OF 3 - ORDINANCE NO. 2026-009
Exliilu:it " " to Ordinance 2026-009
LEGAL DESCRIPTION
(TAX LOT 100, MAP 17-12-07)
A TRACT OF LAND IN THE NORTHEAST QUARTER OF SECTION 7, TOWNSHIP 17 SOUTH,
RANGE 12 EAST OF THE WILLAMETTE MERIDIAN, DESCHUTES COUNTY, OREGON, A PART
OF THAT CERTAIN TRACT OF LAND CONVEYED TO DESTINY COURT PROPERTIES, LLC, AN
OREGON LIMITED LIABILITY COMPANY, IN DOCUMENT NO. 2021-61291, DESCHUTES
COUNTY OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF SAID DESTINY COURT PROPERTIES, SAID
NORTHWEST CORNER BEING ON THE CENTERLINE OF THE DESCHUTES RIVER AND
BEARING, ALONG THE NORTH LINE OF SAID SECTION 7, S89°35'43"E 432.83 FEET FROM
THE NORTH QUARTER CORNER OF SAID SECTION 7; THENCE CONTINUING ALONG SAID
NORTH LINE, S89035'43"E 425.47 FEET TO A POINT; THENCE DEPARTING SAID NORTH LINE,
S13011'48"W 239.62 FEET TO A POINT; THENCE S3048'59"E 152.39 FEET TO THE TRUE
POINT OF BEGINNING; THENCE S89052'26"W 298.75 FEET TO A POINT; THENCE S0000'00"E
366.21 FEET TO A POINT; THENCE S5057'50"W 178.47 FEET TO A POINT; THENCE
S11 000'43"W 127.94 FEET TO A POINT; THENCE S15°48'44"W 92.60 FEET TO A POINT ON
SAID DESCHUTES RIVER CENTERLINE; THENCE ALONG SAID CENTERLINE, S16°08'19"W
179.19 FEET TO A POINT ON THE SOUTH LINE OF THE NORTHWEST QUARTER OF THE
NORTHEAST QUARTER OF SAID SECTION 7; THENCE ALONG SAID SOUTH LINE, S89038'02"E
914.03 FEET TO THE NORTHEAST SIXTEENTH (NE1/16) CORNER OF SAID SECTION 7;
THENCE ALONG THE WEST LINE OF THE SOUTHEAST QUARTER OF THE NORTHEAST
QUARTER (SE1 /4 NE1/4) OF SAID SECTION 7, S0012'11 "W 1320.01 FEET TO THE CENTER
EAST SIXTEENTH CORNER (CE1/16) OF SAID SECTION 7; THENCE ALONG THE EAST -WEST
CENTERLINE OF SAID SECTION 7, S89037'30"E 1318.35 FEET TO THE EAST QUARTER
CORNER OF SAID SECTION 7, BEING THE SOUTHEAST CORNER OF PARCEL C OF PARTITION
PLAT 1996-55; THENCE ALONG THE EASTERLY LINE OF SAID PARCEL C THE FOLLOWING
COURSES: N0008'26"E 1080.22 FEET; THENCE N89037'33"W 50.00 FEET; THENCE 193.64
FEET ALONG THE ARC OF A 50-FOOT RADIUS CURVE TO THE RIGHT, THROUGH A CENTRAL
ANGLE OF 221 °53'48" (THE CHORD OF WHICH BEARS N32°08'04"W, 93.39 FEET); THENCE
N0007'29"E 634.22 FEET TO A POINT ON THE EASTERLY LINE OF SAID DESTINY COURT
PROPERTIES, LLC TRACT; THENCE ALONG SAID EASTERLY LINE, N89036'12"W 1684.60 FEET;
THENCE N3d48'59"W 461.08 FEET THE TRUE POINT OF BEGINNING.
CONTAINING A TOTAL AREA OF 65.11 ACRES, MORE OR LESS.
Exhibit "A" to Ordinance 2026-009
URA
Plan Amendment Boundary
Comprehensive Plan
AG -Agriculture
RREA - Rural Residential Exception Area
OS&C - Open Space & Conservation
URA- Urban Reserve Area
17-12-07-00-00100
Proposed Plan Amendment
from Agriculture (AG)
to
Rural Residential
Exception Area (RREA)
RREA
PROPOSED
COMPREHENSIVE PLAN
Exhibit "B"
to Ordinance 2026-009
V V
0 200 400 800
Feet
March 16, 2026
N 0:ri3
_a
RREA
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
0?P0SIF1)-
Phil hang, C air
=Adair,om
hair
r
1a
ATTEST: Recording Secretary
Dated this Is day of 2026
Effective Date: -1 2026
OS&C
UAR10
Zone Change Boundary
Zoning
EFUTRB - EFU Tumalo/Redmond/Bend
MUA10 - Multiple Use Agricultural
OS&C - Open Space and Conservation
FP - Flood Plain
UAR10 - Urban Area Reserve
C
17-12-07-00-00100
Proposed Zone Change
from Exclusive Farm Use (EFUTRB)
to
Multiple Use Agricultural (MUA10)
MUA10
PROPOSED
ZONING MAP
Exhibit "C"
to Ordinance 2026-009
V V
0 200 400 800
Feet
March 16, 2026
MUA10
MUA10
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
-- 0 PP �GD
Phil Coang, C it
th ny DeBone, Vice Chair
PEilti Adair, Commissioner
ATTEST: Recording Secretary
Dated this IS day of�Q/�� 2026
Effective Date: 1� ° 2026
Exhibit "D" to Ordinance 2026-009
TITLE 23 COMPREHENSIVE PLAN
CHAPTER 23.01 COMPREHENSIVE PLAN
A. The Deschutes County Comprehensive Plan, adopted by the Board in Ordinance 2011-003 and
found on the Deschutes County Community Development Department website, is incorporated
by reference herein.
B. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2011-027, are incorporated by reference herein.
C. [Repealed by Ordinance 2013-001, §1]
D. [Repealed by Ordinance 2023-017]
E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-012, are incorporated by reference herein.
F. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2012-016, are incorporated by reference herein.
G. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-002, are incorporated by reference herein.
H. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-009, are incorporated by reference herein.
I. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-012, are incorporated by reference herein.
J. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2013-007, are incorporated by reference herein.
K. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-005, are incorporated by reference herein.
L. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-006, are incorporated by reference herein.
M. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-012, are incorporated by reference herein.
N. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-021, are incorporated by reference herein.
O. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2014-027, are incorporated by reference herein.
P. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-021, are incorporated by reference herein.
Exhibit "D" to Ordinance 2026-009
Q. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-029, are incorporated by reference herein.
R. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-018, are incorporated by reference herein.
S. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2015-010, are incorporated by reference herein.
T. [Repealed by Ordinance 2016-027 §1]
U. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-022, are incorporated by reference herein.
V. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-005, are incorporated by reference herein.
W. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-027, are incorporated by reference herein.
X. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2016-029, are incorporated by reference herein.
Y. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2017-007, are incorporated by reference herein.
Z. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-002, are incorporated by reference herein.
AA. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-006, are incorporated by reference herein.
AB. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-011, are incorporated by reference herein.
AC. [repealed by Ord. 2019-010 §1, 2019]
AD. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2018-008, are incorporated by reference herein.
AE. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-002, are incorporated by reference herein.
AF. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-001, are incorporated by reference herein.
AG. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-003, are incorporated by reference herein.
AH. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-004, are incorporated by reference herein.
Exhibit "D" to Ordinance 2026-009
Al. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-011, are incorporated by reference herein.
AJ. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-006, are incorporated by reference herein.
AK. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-019, are incorporated by reference herein.
AL. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2019-016, are incorporated by reference herein.
AM. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-001, are incorporated by reference herein.
AN. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-002, are incorporated by reference herein.
AO. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-003, are incorporated by reference herein.
AP. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-008, are incorporated by reference herein.
AQ. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-007, are incorporated by reference herein.
AR. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-006, are incorporated by reference herein.
AS. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-009, are incorporated by reference herein.
AT. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2020-013, are incorporated by reference herein.
AU. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2021-002, are incorporated by reference herein.
AV. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2021-005, are incorporated by reference herein.
AW. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2021-008, are incorporated by reference herein.
AX. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2022-001, are incorporated by reference herein.
AY. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2022-003, are incorporated by reference herein.
Exhibit "D" to Ordinance 2026-009
AZ. The Deschutes County Con+prehensive Plan amendments, adopted by the Board in Ordinance
2022-006, are incorporated by reference herein.
BA. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2022-010, are incorporated by reference herein.
BB. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2022-011, are incorporated by reference herein. (superseded by Ord. 2023-015)
BC. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2022-013, are incorporated by reference herein. (supplemented and controlled
by Ord. 2024-010)
BD. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2023-001, are incorporated by reference herein.
BE. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 202.3-007, are incorporated by reference herein.
BF. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-010 are incorporated by reference herein.
BG. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-018, are incorporated by reference herein.
BH. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-015, are incorporated by reference herein.
BI. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-025, are incorporated by reference herein.
BJ. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2024-001, are incorporated by reference herein.
BK. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2024-003, are incorporated by reference herein.
BL. The Deschutes County Comprehensive Plan, adopted by the Board in Ordinance 2024-007
and found on the Deschutes County Community Development Department website, is
incorporated by reference herein (superseded by Ord. 2025-007).
BM. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2024-010, are incorporated by reference herein.
BN. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-017, are incorporated by reference herein.
BO. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2023-016, are incorporated by reference herein.
Exhibit "D" to Ordinance 2026-009
BP. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2024-011, are incorporated by reference herein.
BQ. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2024-012, are incorporated by reference herein.
BR. The Deschutes County Comprehensive Plan amendments, adopted by the Board in
Ordinance 2025-001, are incorporated by reference herein.
BS. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2025-003, are incorporated by reference herein.
BT. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2025-010, are incorporated by reference herein.
BU. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2025-007, are incorporated by reference herein.
BV. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2025-014, are incorporated by reference herein.
BW. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2026-004, are incorporated by reference herein.
BX. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2026-005, are incorporated by reference herein.
BY. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance
2026-009, are incorporated by reference herein.
Click here to be directed to the Comprehensive Plan (http://www.deschutes.org/compplan)
Exhibit "D" to Ordinance 2026-009
Se0000, 57.12 L-e tstat%y
Background
This section contains the legislative history of this Comprehensive Plan.
Table 5.12.1 Comprehensive Plan Ordinance History
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
Ordinance
Date Adapted/
Chapter/Section
Amendment
Effective
All, except
Transportation, Tumalo
and Terrebonne
201 1-003
8-10-1 1/ 1 1-9-1 1
Community Plans,
Comprehensive Plan update
Deschutes Junction,
Destination Resorts and
ordinances adopted in
2011
2.5, 2.6, 3.4, 3.10, 3.5,
Housekeeping amendments
20 I I -027
10-3 I- I I/ I I -9- I I
4.6, 5.3, 5.8, 5.1 1,
to ensure a smooth
23.40A, 23.40B,
transition to the updated
23.40.065, 23.01.010
Plan
23.60, 23.64 (repealed),
Updated Transportation
2012-005
8-20-12/ 1 1-19-12
3.7 (revised), Appendix
System Plan
C (added)
2012-012
8-20-12/8-20-12
4.1, 4.2
La Pine Urban Growth
Boundary
Housekeeping amendments
2012-016
12-3-12/3-4-13
3.9
to Destination Resort
Chapter
Central Oregon Regional
2013-002
1-7-13/ 1-7-13
4.2
Large -lot Employment Land
Need Analysis
Comprehensive Plan Map
Amendment, changing
2013-009
2-6-13/5-8-13
1.3
designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan Map
Amendment, including
2013-012
5-8-13/8-6-13
23.01.010
certain property within City
of Bend Urban Growth
Boundary
Newberry Country: A Plan
2013-007
5-29-13/8-27-13
3.10, 3.1 1
for Southern Deschutes
Count
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
Comprehensive Plan Map
Amendment, including
2013-016
10-21-13/10-21-
23.01.010
certain property within City
13
of Sisters Urban Growth
Boundary
Comprehensive Plan Map
Amendment, including
2014-005
2-26-14/2-26-14
23.01.010
certain property within City
of Bend Urban Growth
Boundary
Housekeeping amendmentsto
2014-012
4-2- 14/7- I -14
3. 10, 3. I I
Title 23.
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver
2014-021
8-27-14/ 1 1-25-14
23.01.010, 5.10
Urban Unincorporated
Community Forest to
Sunriver Urban
Unincorporated Community
Utility
Comprehensive Plan Map
Amendment, changing
designation of certain
property from Sunriver
2014-021
8-27-14/ 1 1-25-14
23.01.010, 5.10
Urban Unincorporated
Community Forest to
Sunriver Urban
Unincorporated Community
Utility
Comprehensive Plan Map
Amendment, changing
2014-027
12-15-14/3-31-15
23.01.010, 5.10
designation of certain
property from Agriculture to
Rural Industrial
Comprehensive Plan Map
Amendment, changing
2015-021
1 1-9-15/2-22-16
23.01.010
designation of certain
property from Agriculture to
Surface Mining.
DESCHUTES COUNTY COMPREHENSIVE PLAN - LU I I
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
Comprehensive Plan Map
Amendment, changing
2015-029
1 1-23-15/ 1 1-30-
23 01.010
designation of certain
15
property from Tumalo
Residential 5-Acre Minimum
to Tumalo Industrial
Housekeeping Amendments
2015-018
12-9-15/3-27-16
23.01.010, 2.2, 4.3
to Title 23.
Comprehensive Plan Text
and Map Amendment
2015-010
12-2-15/ 12-2-15
2.6
recognizing Greater Sage -
Grouse Habitat Inventories
Comprehensive Plan Map
Amendment, changing
2016-001
12-21-15/04-5-16
23.01.010; 5.10
designation of certain
property from, Agriculture
to Rural Industrial (exception
area
Comprehensive Plan
Amendment to add an
exception to Statewide
2016-007
2-10-16/5-10-16
23.01.010; 5.10
Planning Goal I 1 to allow
sewers in unincorporated
lands in Southern Deschutes
Count
Comprehensive Plan
Amendment recognizing non-
2016-005
1 1-28-16/2-16-17
23.01.010, 2.2, 3.3
resource lands process
allowed under State law to
change EFU zoning
Comprehensive plan
Amendment, including
2016-022
9-28-16/ 1 1-14-16
23.01.010, 1.3, 4.2
certain property within City
of Bend Urban Growth
Boundary
Comprehensive Plan Map
Amendment, changing
2016-029
12-14-16/ 12/28/ 16
23.01.010
designation of certain
property from, Agriculture
to Rural Industrial
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
Comprehensive Plan Map
Amendment, changing
2017-007
10-30-17/10-30-
23.01.010
designation of certain
17
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan
2018-002
1-3-18/ 1-25-18
23.01, 2.6
Amendment permitting
churches in the Wildlife Area
Combining Zone
Housekeeping Amendments
correcting tax lot numbers in
Non -Significant Mining
2018-006
8-22-18/ 1 1-20-18
23.01.010, 5.8, 5.9
Mineral and Aggregate
Inventory; modifying Goal 5
Inventory of Cultural and
Historic Resources
Comprehensive Plan Map
Amendment, changing
2018-01 1
9-12-18/ 12-1 1-18
23.01.010
designation of certain
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan Map
Amendment, removing Flood
23.01.010, 2.5, Tumalo
Plain Comprehensive Plan
2018-005
9-19-18/ 10-10-18
Community Plan,
Designation; Comprehensive
Newberry Country Plan
Plan Amendment adding
Flood Plain Combining Zone
purpose statement.
Comprehensive Plan
Amendment allowing for the
2018-008
9-26-18/ 10-26-18
23.01.010, 3.4
potential of new properties
to be designated as Rural
Commercial or Rural
Industrial
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
Comprehensive Plan Map
Amendment changing
designation of certain
property from Surface Mining
to Rural Residential
2019-002
1-2-19/4-2-19
23.01.010, 5.8
Exception Area; Modifying
Goal 5 Mineral and
Aggregate Inventory;
Modifying Non -Significant
Mining Mineral and Aggregate
Inventor
Comprehensive Plan and
2019-001
1-16-19/4-16-19
1.3, 3.3, 4.2, 5.10, 23.01
Text Amendment to add a
new zone to Title 19:
Westside Transect Zone.
Comprehensive Plan Map
Amendment changing
02-12-19/03-12-
designation of certain
2019-003
23.01.010, 4.2
property from Agriculture to
19
Redmond Urban Growth
Area for the Large Lot
Industrial Program
Comprehensive Plan Map
Amendment changing
designation of certain
property from Agriculture to
2019-004
02-12-19/03-12-
23.01.010, 4.2
Redmond Urban Growth
19
Area for the expansion of
the Deschutes County
Fairgrounds and relocation of
Oregon Military Department
National Guard Armory.
Comprehensive Plan Map
Amendment to adjust the
Bend Urban Growth
Boundary to accommodate
the refinement of the Skyline
Ranch Road alignment and
2019-01 1
05-01-19/05- 16/ 19
23.01.010, 4.2
the refinement of the West
Area Master Plan Area I
boundary. The ordinance
also amends the
Comprehensive Plan
designation of Urban Area
Reserve for those lands
leaving the UGB.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION S.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
Comprehensive Plan Map
Amendment, changing
2019-006
03-13-19/06-1 1-
23.01.010,
designation of certain
19
property from Agriculture to
Rural Residential Exception
Area
Comprehensive Plan and
Text amendments
1 1-25-19/02-24-
incorporating language from
2019-016
20
23.01.01, 2.5
DLCD's 2014 Model Flood
Ordinance and Establishing a
purpose statement for the
Flood Plain Zone.
Comprehensive Plan and
Text amendments to provide
procedures related to the
2019-019
12-1 1-19/ 12-1 1-
23.01.01, 2.5
division of certain split zoned
19
properties containing Flood
Plain zoning and involving a
former or piped irrigation
canal.
Comprehensive Plan and
Text amendments to provide
procedures related to the
2020-001
12-1 1-19/ 12-1 1-
23.01.01, 2.5
division of certain split zoned
19
properties containing Flood
Plain zoning and involving a
former or piped irrigation
canal.
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
Comprehensive Plan Map
Amendment to adjust the
Redmond Urban Growth
Boundary through an equal
exchange of land to/from the
Redmond UGB. The
exchange property is being
offered to better achieve
land needs that were detailed
2020-002
2-26-20/5-26-20
23.01.01, 4.2, 5.2
in the 2012 SB 1544 by
providing more development
ready land within the
Redmond UGB. The
ordinance also amends the
Comprehensive Plan
designation of Urban Area
Reserve for those lands
leaving the UGB.
Comprehensive Plan
Amendment with exception
to Statewide Planning Goal
02-26-20/05-26-
23.0 I.0 I 5.10
11 (Public Facilities and
2020-003
20
,
Services) to allow sewer on
rural lands to serve the City
of Bend Outback Water
Facility.
Comprehensive Plan
Transportation System Plan
Amendment to add
roundabouts at US 20/Cook-
2020-008
06-24-20/09-22-
23.01.010, Appendix C O.B. Riley and US 20/01d
20
Bend -Redmond Hwy
intersections; amend Tables
5.33 1 and 5.332 and amend
TSP text.
Housekeeping Amendments
2020-007
07-29-20/ 10-27-
23.01.010, 2.6
correcting references to two
20
Sage Grouse ordinances.
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
Comprehensive Plan and
Text amendments to update
the County's Resource List
2020-006
08-12-20/ 1 1-10-
23.01.01, 2.1 I, 5.9
and Historic Preservation
20
Ordinance to comply with
the State Historic
Preservation Rule.
Comprehensive Plan
Transportation System Plan
Amendment to add
2020-009
080-19-20/ 1 1-17-
23.01.010, Appendix C
reference to J turns on US
97 raised median between
Bend and Redmond; delete
language about disconnecting
Vandevert Road from US 97.
Comprehensive Plan Text
And Map Designation for
Certain Properties from
Surface Mine (SM) and
Agriculture (AG) To Rural
2020-013
08-26-20/ 1 1 /24/20
23.01.01, 5.8
Residential Exception Area
(RREA) and Remove Surface
Mining Site 461 from the
County's Goal 5 Inventory of
Significant Mineral and
Aggregate Resource Sites.
Comprehensive Plan Map
2021-002
01-27-21 /04-27-
23.01.01
Designation for Certain
21
Property from Agriculture
AG To Rural Industrial RI
Comprehensive Plan Map
Amendment Designation for
Certain Property from
2021-005
06-16-21 /06-16-
23.01.01, 4.2
Agriculture (AG) To
21
Redmond Urban Growth
Area (RUGA) and text
amendment
Comprehensive Plan Map
Amendment Designation for
Certain Property Adding
2021-008
06-30-21 /09-28-
23.01.01
Redmond Urban Growth
21
Area (RUGA) and Fixing
Scrivener's Error in Ord.
2020-022
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
Comprehensive Plan Map
Amendment, changing
2022-001
04-13-22/07-12-
23.01.010
designation of certain
22
property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
Comprehensive Plan Map
Amendment, changing
2022-003
04-20-22/07-19-
23.01.010
designation of certain
22
property from Agriculture
(AG) to Rural Residential
Exception Area RREA
Comprehensive Plan Map
Amendment, changing
designation of certain
2022-006
06-22-22/08-19-
23.01.010
property from Rural
22
Residential Exception Area
(RREA) to Bend Urban
Growth Area
07-27-22/ 10-25-
Comprehensive Plan Map
2022-01 1
22
23.01.010
Designation for Certain
(superseded by
Property from Agriculture
Ord. 2023-015)
(AG To Rural Industrial RI
12-14-22/03-14-
Comprehensive Plan Map
23
Designation for Certain
2022-013
(supplemented
23.01.010
Property from Agriculture
and controlled by
(AG) to Rural Residential
Ord. 2024-010)
Exception Area RREA
Housekeeping Amendments
correcting the location for
2023-001
03-01-23/05-30-
23.01.010, 5.9
the Lynch and Roberts Store
23
Advertisement, a designated
Cultural and Historic
Resource
Comprehensive Plan Map
Designation for Certain
2023-007
04-26-23/6-25-23
23.01.010
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
10 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
Comprehensive Plan Map
Designation for Certain
2023-010
06-21-23/9-17-23
23.01.010
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
Comprehensive Plan Map
08-30-23/ 1 1-28-
Designation for Certain
2023-018
23
23.01.010
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
Comprehensive Plan Map
2023-015
9-13-23/ 12-12-23
23.01.010
Designation for Certain
Property from Agriculture
(AG) to Rural Industrial (RI)
Comprehensive Plan Map
Amendment, changing
designation of certain
2023-025
1 1-29-23/2-27-24
23.01.010
property from Rural
Residential Exception Area
(RREA) to Bend Urban
Growth Area
Comprehensive Plan Map
Amendment for Certain
2024-001
1-31-24/4-30-24
23.01.010
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
23.01(BM) (added), 4.7
Updated Tumalo Community
2023-016
5-8-24/8-6-24
(amended), Appendix B
Plan
(replaced)
23.01(D) (repealed),
2023-017
3-20-24/6-20-24
23.01(BJ) (added), 3.7
Updated Transportation
(amended), Appendix C
System Plan
(replaced)
DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
Comprehensive Plan Map
Amendment, changing
designation of certain
2024-003
2-21-24/5-21-24
23.01.010, 5.8
property from Surface Mining
(SM) to Rural Residential
Exception Area (RREA);
Modifying Goal 5 Mineral and
A re ate Inventor
10-02-24/ 12-31-
Repeal and Replacement of
24
23.01(A)(repealed)
2030 Comprehensive Plan
2024-007
(superseded by
23.01(13K) (added)
with 2040 Comprehensive
Ord. 2025-007)
Plan
Comprehensive Plan Map
10-16-24/01-14-
Designation for Certain
2024-010
25
23.01.010
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
Comprehensive Plan Map
1 1-18-24/02-17-
Designation for Certain
2024-01 1
25
23.01.010
Property from Agriculture
(AG) to Redmond Urban
Growth Area (RUGA)
Comprehensive Plan Map
Designation for Certain
2024-012
1-8-25/4-8-25
23.01.010
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
Comprehensive Plan and
Zoning Map Amendment
2025-001
2-5-25/2-5-25
23.01.010
updating the Greater Sage -
Grouse Area Combining
Zone boundary.
Comprehensive Plan
2025-003
4-2-25/7-1-25
23.01.010
Designation for Certain
Property from Agriculture
(AG) to Rural Industrial (RI)
12 DE.SCHUTES COUNTY COMPREHENSIVE PLAN -201 1
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
Comprehensive Plan Map
Designation for Certain
2025-010
6-25-25/9-23-25
23.01.010
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
Amendments to
Comprehensive Plan
2025-007
8-27-25/ 1 1-25-25
23.01(13U)
resulting from Deschutes
County 2040 Update
process.
Comprehensive Plan Map
Designation for Certain
Property from Forest (F) to
2025-014
10-6-25/ 10-6-25
23.01.010
Rural Residential Exception
Area (RREA)
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
2026-004
1-28-26/4-28-26
23.01.010
(AG) to Rural Residential
Exception Area (RREA)
Comprehensive Plan Map
Designation for Certain
Property from Agriculture
2026-005
3-1 1-26/6-9-26
23.01.010
(AG) and Surface Mine (SM)
to Rural Residential
Exception Area (RREA)
Comprehensive Plan Map
Designation for Certain
2026-009
TBD/TBD
23.01.010
Property from Agriculture
(AG) to Rural Residential
Exception Area (RREA)
13 DESCHUTES COUNTY COMPREHENSIVE PLAN - 2011
CHAPTER 5 SUPPLEMENTAL SECTIONS SECTION 5.12 LEGISLATIVE HISTORY
EXHIBIT "E" TO ORDINANCE 2026-009
EXHIBIT "F" of Ordinance 2026-009
BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FILE NUMBERS: 247-25-000759-A, 247-22-000443-PA, 247-22-000436-ZC, 247-
23-000651-MA
APPLICANT/OWNER: Destiny Court Properties, LLC
APPLICATION: Remand of Board of Commissioners' Decision Approving a
Comprehensive Plan Amendment to re -designate the subject
property from Agriculture ("AG") to Rural Residential Exception
Area ("RREA") and a corresponding Zone Change to change the
zoning of the subject property from Exclusive Farm Use -
Tumalo/Redmond/Bend Subzone ("EFU-TRB") to Multiple Use
Agriculture ("MUA-10").
SUBJECT PROPERTY: Address: 19975 Destiny Ct., Bend, OR 97703
Map and Taxlot: 1712070000100
STAFF PLANNER: Caroline House, Senior Planner
Caroline. House@deschutes.org, 541-388-6667
I. PROCEDURAL HISTORY:
This matter is on remand to Deschutes County from the Oregon Land Use Board of Appeals
("LUBA"). This decision ("Decision") addresses only those issues on remand to the County.
The Board of County Commissioners ("Board) does not revisit other findings that are outside
of the scope of remand; such issues are settled. The findings in this document supplement
the findings in the 2025 decision of the Board that approved the plan amendment and zone
change ("Application") requested by Destiny Court Properties, LLC ("Applicant"). The findings
herein control over any inconsistent findings in the Board's 2025 decision, including the
Hearings Officer's April 26, 2024, recommendation which was made a part of the Board's
2025 decision. Additionally, as stated in our 2025 decision, findings in this decision control
over inconsistent findings in the Hearings Officer's recommendation.
The County's land use Hearings Officer conducted the initial hearing regarding the
Application on February 27, 2024, and recommended approval of the Application to the
Board. The Board approved the Application (2-1) on January 8, 2025. Central Oregon
LandWatch ("COLW") filed an appeal to LUBA, which remanded the Board's decision on June
26, 2025. See Central Oregon LandWatch v. Deschutes County, _ Or LUBA _ (LUBA No. 2025-
015)("Destiny Court"). Although LUBA affirmed the Board on multiple assignments of error, it
remanded to address two discreet issues: (1) an alleged inconsistency with Deschutes
Exhibit' F" to Ordinance 2026-009
File No. 247-25-000759-A
County Comprehensive Plan ("DCCP") Policy 3.3.1 regarding lot sizes and density, and (2) to
complete the analysis and findings regarding the Subject Property's suitability for farm use
factors under OAR 660-033-0020(1)(a)(B) as it relates only to those farm uses that COLW had
identified in the record. Destiny Court, slip op 23.
On December 23, 2025, the Applicant initiated remand proceedings. On January 5, 2026, the
Board issued Order No. 2026-002 reopening the local record to address issue #2. On January
6, 2026, the County mailed its Notice of Public Hearing to all parties to the original
proceedings, and listed the issues remanded, and all relevant criteria, rules, and procedures
relating to the remand proceedings.
The Board held a hearing on January 28, 2026 ("Hearing"). At the Hearing, COLW raised an
objection, arguing that the County could not proceed with consideration of the remand
application at that time under ORS 197.797(3)(h) and Deschutes County Code ("DCC")
22.24.040(A)(9). DCC 22.24.040(A)(9) contains the same requirements as ORS 197.797(3)(h),
so we address both provisions together.
COLW claims error because of the "County's failure to ensure that the documents and
evidence submitted by the developer for the remand hearing were made available for public
inspection at no cost at least twenty days before the hearing[.]" COLW clarified at the Hearing
that its argument was that the County was required to make the Applicant submit evidentiary
documents in advance of the Hearing so that such evidence could be provided to the parties
prior to hearing. Staff submitted a memorandum addressing this objection on February 3,
2026, and we agree with Staffs analysis. While ORS 197.797(3)(h) requires any information
submitted by an applicant to be made available, it does not require an applicant to submit its
evidence in advance of a remand hearing. Staff confirmed that all documents submitted by
the Applicant were available to all parties. COLW's argument is without legal merit and is
properly denied.
The Board agreed to hold open the record to cure any potential procedural error alleged by
COLW. The Board permitted an additional 7 days for new evidence, followed by 7 days for
rebuttal evidence, and then 7 days for the Applicant to provide final legal argument. COLW
did not object to this procedure.
On March 4, 2026, the Board deliberated and considered all issues remanded to it by LUBA.
Thereafter, it voted 2-1 to again approve the Application. This Decision supports the Board's
action.
Exhibit T" to Ordinance 2026-009 2
File No. 247-25-000759-A
II. FINDINGS AND CONCLUSIONS OF LAW:
The Board approves the requested Application for the subject property ("Property") and
provides the following supplemental findings and conclusions of law.
A. Remand Issue 1: DCCP Policy 3.3.1 and Lot Size or Density Requirements
LUBA remanded the Board's 2025 decision to address a perceived conflict between DCCP
Policy 3.3.1 and the MUM zone. See Destiny Court, slip op 6-10. Because the arguments
presented to LUBA and the discussion around this issue was varied,' our findings are varied
as well, so as to consider all sub -issues addressed by LUBA.
Before turning to our findings, we note that the Applicant has withdrawn its initial and
tandem request for a planned unit development ("PUD"). This Decision, therefore, only
addresses the current and relevant Application. And, the Applicant has offered —and the
Board so imposes —a Conditions of Approval Agreement ("COAA") in a form substantially
similar to that attached as Exhibit A, that further resolves this issue. That COAA requires that
any future subdivision of the Property be limited to either 10-acre minimum lot sizes or to
1:10 (one unit per ten acre) equivalent density through a cluster development or PUD, as
permitted by the County's applicable codes, Comprehensive Plan and state law. This
equivalent density results in a limitation to a 2-acre minimum lot size with an associated 8
acres of preserved open space. Consistent with the findings below, the Board finds that
imposition of this COAA ensures the Application meets all applicable criteria and policies
contained in the DCCP.
As noted by COLW and LUBA, where there is a conflict between a comprehensive plan and a
zoning code, the comprehensive plan controls. Baker v. Milwoukie,271 Or 500, 533 P2d 772
(1975). Therefore, even if the MUA-10 zone did in fact conflict with the DCCP, the DCCP
controls and it is irrelevant as to whether or not the MUM 0 zone conflicts with the DCCP.
No party has raised any criteria or other legal reason for why the Application could not be
approved —just that the minimum lot size would be restricted. As such, even if LUBA
determines that the below interpretation is not plausible, this Board finds that the
Application should still be approved.
To address the alleged or perceived inconsistency between the DCCP and the MUM 0 zone,
the Board makes the following interpretations.
1 For example, LUBA addressed COLW's arguments that Goal 14 may be implicated, however LUBA
later found Goal 14 to be satisfied.
Exhibit T" to Ordinance 2026-009 3
File No. 247-25-000759-A
Interpretation of DCCP 3.3.1 and the MUA-10 Zoning District
The basis for LUBA's remand was focused on DCCP 3.3.1 which states that: "Except for
parcels in the Westside Transect Zone, the minimum parcel size for new rural residential
parcels shall be 10 acres." LUBA agreed with COLW that DCCP 3.3.1 could facially conflict with
then -existing DCC 18.32.040(A). DCCP 3.3.1 states:
"[t]he minimum lot area shall be 10 acres, except planned and cluster
developments shall be allowed an equivalent density of one unit per seven
and one-half acres and planned and cluster developments within one mile of
acknowledged urban growth boundary shall be allowed a five -acre minimum
lot area or equivalent density."
DCCP Policy 3.3.1 was amended as part of Ordinance No. 2019-001, which adopted the
Westside Transect Zone ("WTZ"). However, the policy was substantially the same before that
amendment. It previously stated, "The minimum parcel size for new rural residential parcels
shall be 10 acres." This policy had always been interpreted and applied by the County as
nonetheless allowing for potential PUDs and cluster developments, so long as an equivalent
density of 1:10 acres is met. The Board interprets DCCP 3.3.1 in this manner. DCCP Policy
3.3.1 was not intended to prevent cluster developments or PUDs with lot sizes smaller than
10 acres, provided such proposed developments are consistent with the Deschutes County
Code ("Code") and state law. The Board interprets DCCP Policy 3.3.1 to generally require 10-
acre minimum lot sizes, but nothing therein prohibits a PUD or cluster development that
complies with the Code and state law. The Board further finds that DCCP Policy 3.3.1 was not
intended to prevent the use of the Code's density bonus, which as discussed below, was re-
adopted and acknowledged after LUBA issued its Destiny Court decision.
As noted above, DCCP Policy 3.3.1 was changed as part of the adoption of the WTZ. The
objective of the WTZ was to create an orderly development from rural to urban uses. The
WTZ reduced the equivalent density of one unit per 10 acres, as otherwise permissible under
the RR-10, MUM 0, and UAR-10 zones, to one unit per 2.5 acres. As noted in Ordinance No.
2019-001, the concern is not related to minimum parcel size but is instead a concern related
to equivalent density. See e.g. Applicant's Exhibit UU, p. 4, 8, 9, etc., (ODFW recognizing the
density standards changing from 1:10 to just 1:2.5). This equivalent density intent is also
reflected in the WTZ itself, the purpose of which "provides a transitional residential
development pattern with densities ranging from one unit per 2.5 to 10 acres to guide
development[.]" DCC 19.22.010. Obviously, a revision to equivalent density from 1:10 down
to 1:2.5 is a significant change and one for which the County took an exception to Goal 14.
This circumstance is different than that under the existing RR-10 and MUM 0 zones, which
are acknowledged and have always required 1:10 equivalent densities and, under certain
circumstances, allow for a density bonus.
Exhibit "F" to Ordinance 2026-009 4
File No. 247-25-000759-A
As is clear throughout Ordinance No. 2019-001, the County has always considered an
equivalent density as the standard, and notjust minimum lot size. Confusion arises from using
the two terms interchangeably. The Board interprets DCCP Policy 3.3.1 to address minimum
equivalent densities.
The MUM 0 and RR-10 zones do require a minimum lot size of 10 acres. However, the County
also permits the use of PUDs and cluster developments which, upon imposition of other
restrictions, including the preservation of open space, reduce the subdivided lot size to
below 10 acres. PUDs are specifically permitted under state law. See e.g. OAR 660-004-0040.
It is through the use of PUDs and cluster developments that rural lot sizes may be below 10
acres, however a specific minimum equivalent density is still required, which is accomplished
through the preservation of open space. See e.g. DCC 18.128.200 and -.210. A contrary
interpretation would effectively strike those provisions from Code, which is not the intent of
DCCP Policy 3.3.1 as further evidenced by Ordinance No. 2019-001. The same is true
regarding the County's density bonus provisions that were re -codified in July 2025 and are
acknowledged —although the density bonus provisions are no longer codified in DCC
Chapter 18.32 (the MUA-10 zoning district).
The Board interprets DCCP Policy3.3.1 to require minimum lot sizes of 10 acres, except when
PUD or cluster developments are used, in which case equivalent densities of 1:10 are
permitted with the preservation of open space. This interpretation is plausible and should
be affirmed. Crowley v. City of Hood River, 294 Or App 240, 244, 430 P3d 1113 (2018).
The Board also notes that the standards related to the use of cluster and PUDs, including the
use of the "density bonus" (no longer included within the MUA-10 zoning district) was
recently re -acknowledged as being compliant with the Statewide Planning Goals and the
comprehensive plan. Ordinance No. 2025-009 was adopted on July 1, 2025, which re -codified
these standards. This ordinance was adopted after LUBA issued its decision in this case.
Ordinance No. 2025-009 amended the MUA-10 zone and readopted the standards related
to PUDs and cluster developments. That ordinance was not appealed, is final, and deemed
to be acknowledged. ORS 197.625. The Applicant and the County are entitled to rely upon
acknowledged zoning regulations and comprehensive plan provisions. Friends of Neabeack
Hill v. City of Philomath, 139 Or App 39, 1996, rev denied.
Even if LUBA determines that the above interpretation is incorrect or not plausible, the issue
is also not ripe before this Board. As noted, the Applicant has withdrawn its request for a
PUD. The issue of minimum lot sizes may be raised when and if the Applicant applies for a
subdivision of the Property. Until such time the DCCP governs and there is no conflict
because the Property is larger than 10 acres.
Exhibit "F" to Ordinance 2026-009 5
File No. 247-25-000759-A
B. Issue 2: Property Suitability for Farm Use
LUBA remanded to the County to "evaluate whether the subject property is suitable for the
farm uses petitioner identified in the record, including various types of animal husbandry
and equine facilities listed in ORS 215.203(2)(a)". Destiny Court, slip op 23. This Decision
confines review to the scope of the remand, which requires consideration only of those farm
uses previously raised in COLW's arguments; COLW waived its right to request consideration
of other uses by not raising those issues in the original proceedings. ORS 197.797(1), ORS
197.835(3), Currie v. Douglas County, 308 Or App 235, 482 P3d 427 (2020) ("Currie"); Devin Oil,
252 Or App at 1 11-13; Beck v. City of Tillamook, 313 Or 148, 831 P2d 678 (1992).
Notwithstanding the limited scope on remand, COLW did not confine its arguments to uses
it had previously raised for the Board's consideration. Instead, it presented a veritable
laundry -list of additional crops or uses it now claims, for the first time, could be supported
on the Property. We agree with Applicant and the Applicant's experts that COLW is both
incorrect that the Property is suitable for these uses and that COLW has waived its ability to
raise new potential farm uses on remand. To that end, we adopt Exhibit XX of Applicant's
Final Legal Argument herein and note that uses not previously raised in the original
proceedings cannot be raised on remand.' We also agree that the Property is not suitable
for these new uses given the factors under OAR 660-033-0020(1)(a)(B). Findings related to
these factors, individually, are provided below.
Factor Analysis
Some of the findings and evidence overlap and can be used to show why more than a single
factor points to the unsuitability of the Property for farm use. For example, findings related
to the soil fertility factor are also relevant to technological and energy inputs because of the
inputs required to increase or elevate the soil fertility that would be required for a viable
farm use. None of the factors or findings related thereto are intended to be read in a vacuum;
they may relate to additional factors.
No credible evidence by any party was submitted to refute Applicant's evidence and the
testimony of Brian Rabe, Greg Mohnen, Matt Cyrus, or Rand Campbell. The only contrary
testimony is conclusory statements from COLW and the opinions of its attorney —which is
not substantial evidence. Moreover, COLW's list of "farms" that it asserts are similar to the
Property was refuted on a farm -by -farm basis by the Applicant and we agree with the
Applicant's analysis.
2 To the extent the list of crops may be considered as part of a broader category of "irrigated
agriculture" it is addressed below.
Exhibit "F" to Ordinance 2026-009 6
File No. 247-25-000759-A
1. Soil fertility
The Property has poor soils comprised of approximately 65.8% Class VII and Vill soils, with
substantial rocky outcroppings that make use of traditional farm equipment difficult or
impossible. This was opined on by Applicant's experts Greg Mohnen and Rand Campbell and
was not refuted by any other party. COLW argued that the historic use of the Property should
control, and claims that there is "unrefuted photographic evidence" of past farm uses.
COLW's claims are misleading. Applicant supplied substantial evidence that the Property has
never had any history of agricultural activity except for two short-lived attempts in recent
history.
In response to COLW's claimed "unrefuted photographic evidence" the Applicant provided a
number of aerial photographs that detail the actual historical use of the Property. The aerial
photographs' that are instructive and show the following:
1994 - Property shown in natural state, including massive rock outcroppings and
scrub cover.
2000 - Property has some road improvements to prepare for potential development.
2005 - Road improvements are continued and a pond is established. Some earthwork
is started to try to clear to attempt a pasture.
2006 - More earthwork is completed and large rock outcroppings remain, including
in the intended pasture areas.
2011 -There is a gap from 2006 to 2011 in the aerial photograph materials. However,
by 2011 two irregular pasture areas have been partially established.
2012 - The rock outcroppings are beginning to show again in the pasture area.
2014 - Irrigation has fully ceased, although a small pond still exists. The larger of the
pasture areas shows clear signs of rock and almost no topsoil or other growth.
2017/2018/2024 - Rocks continue to peak out of the very shallow soil, with the most
illustrative shown in the 2024 aerial.
These aerials correlate to the testimony of Mark and Cathy Ferguson, who attempted to
graze cattle in 2012 but were unable to even recoup costs, and the Ferguson's grazing
agreement that was terminated after just a single month.
COLW's arguments are based on a photograph taken out of context; its statement that such
photo proves suitability is not persuasive. LUBA has previously found that even if there is a
3 Reference Applicant's Rebuttal submittal dated February 11, 2026, and identified as Exhibit 00.
Exhibit 'T'to Ordinance 2026-009 7
File No. 247-25-000759-A
history of attempted agricultural use —even going back decades —that is insufficient to
determine perse that a property is suitable for farm use under the factor analysis. See Central
Oregon LandWatch v. Deschutes County, — Or LUBA — (LUBA No. 2023-049)("Marken"). The
Board determines that the photograph offered by COLW does not constitute substantial
evidence of suitability for the farm uses identified in the record. We find other evidence in
the record more compelling. As determined in Marken, mere photographs, without more,
are not substantial evidence. Marken, slip op 11-12.
As is clear in the aerials and the testimony by Greg Mohnen, Matt Cyrus, Rand Campbell, and
soils expert Brian Rabe, even the "cleared" area on the Property remains extremely rocky.
Mr. Mohnen estimated that it would take at least $100,000 to attempt to remove rock such
that you may be able to use standard farm equipment. The Board finds the Applicant's
evidence and expert testimony to be persuasive and more reliable than evidence provided
by COLW.
At the remand hearing, a question was posed regarding whether soil fertility could be
improved through soil enrichment. Although consideration of this factor is focused on the
land itself and its capability, we address the question of soil enrichment here.' Applicant
provided pricing and bid information for soil enrichment from two sources - the County's
own facility and from High Desert Mulching. This information was reviewed by Applicant's
expert Mr. Rabe, who confirmed that importing enough soil/material to enrich the roughly
20-acre area on the Property that had previously been attempted for irrigation would cost
more than $1 million. And, as evidenced by Mr. Campbell's testimony, local fertilizer
availability has been diminished by the closing of such operations. This increases the cost of
additional enrichment. The Board finds there is substantial evidence to support our finding
that no reasonable farrner would make such an investment, rather thanjust purchasing land
that is not comprised of rock and includes Class VI or better soils.
As it relates to horse or equine uses, the Board finds substantial evidence in the record to
support our finding that no reasonable farmer would attempt to create a horse boarding
facility on the Property. As was shown by all of the examples of such operations submitted
by COLW, horse facilities commonly have additional facilities and infrastructure such as
barns, arenas, and irrigated and separated irrigated pasture lands for each boarded horse.
The Property has no such improvements. In fact, absent.some limited fencing and a lean-to
structure, there are no other improvements on the Property. Two examples provided by
COLW, Emboldened Equine Ranch and Silver Horse Ranch, both have facilities that are
assessed by the County's Assessor's Office as substantial improvements. These operations
are located on properties that have significant better soils that permit pasture use by
boarded horses, something that this Property lacks. The Board is persuaded by the
operational analysis provided by the Applicant which showed the costs associated with
establishing an equine operation on the Property. Applicant's Exhibit B. These costs include
4 This may also be relevant to the technological and energy input factor.
Exhibit "F" to Ordinance 2026-009 8
File No. 247-25-000759-A
boarding up to 20 horses per month, the cost of importation of feed, and typical operational
costs, but does not include the initial costs to build such facilities in the first place. Even still,
such an operation on the Property would result in more than a $50,000 annual loss. No
contrary evidence was provided. The Board finds the Applicant's evidence persuasive to
show that the Property is not suitable for equine facilities.
Lastly, COLW argued that the Property should have better soils through the removal of rock
and because the Property had "21.53 or more acres of irrigated, predominantly Class III
farmland." This ignores the expert testimony on the type and reality of the soils on the
Property. Expert Mr. Rabe refuted COLW's argument in a letter dated February 10, 2026,
calling it a "very inaccurate representation." Rocks in the types of soil on the Property are
common and the water holding capacity, along with the depth of the soil, is what partially
dictates just how bad the soils are. Moreover, as in COLW's own submittal of NRCS
publications, "the soils mapped across the property are not listed as having any potential for
other crops grown in Deschutes County." Mr. Rabe Letter, pg. 2. The Board finds Mr. Rabe's
expert testimony is more persuasive than the comments from COLW's attorney.
2. Suitability for grazing
No credible testimony was offered by any party that shows the Property is suitable for
grazing. COLW included in its laundry list of farm use claims that grazing or rearing of various
animals could occur, from cows to horses to goats to, remarkably, ostriches. Uses that were
not previously identified in the prior proceeding are waived —such as COLW's new claim
regarding ostriches. However, they are also simply unpractical and no reasonable farmer
would seek a grazing farm use on the Property.
In contrast to COLW's unsupported claims, the Applicant submitted evidence regarding the
significantly limited potential to use the Property for grazing. Taken individually or as a whole,
the weight of the evidence shows why the Property is not suitable for farm use or grazing.
Without fully re -stating all record evidence, the Board provides the following highlights:
• Exhibit 25 - 2022 Application: Ferguson ceased attempting grazing on the Property
after merely a month, due to lack of productivity and forage on the site even when
irrigated.
• Exhibit C - Mohnen, renting the Property is unlikely due to lack of forage and need
for significant upgrades to fencing, ponds, and new irrigation system that would be
costly.
• Exhibit D - Cyrus, no significant forage ability or shelter and it would be a "waste of
resource" to farm the Property. Raising cattle or other farm animals would be
unprofitable.
Exhibit "F" to Ordinance 2026-009 9
File No. 247-25-000759-A
• Exhibit E - Campbell, provided a detailed analysis regarding total amount of AUMs
that could be produced on the Property, which is relevant to multiple types of grazing
animals. That figure is approximately 12 AUMs, which results in no reasonable
operator attempting to graze the Property.
• Exhibit RR - Rabe, revenue produced on the Property based upon AUMs is extremely
low and would "not begin to cover the cost of inputs[.]"
We find substantial, persuasive evidence in the record that the Property is unsuitable for
grazing.
3. Climatic conditions
COLW did not previously argue that the climate conditions of the Property make it suitable;
therefore, this new challenge has been waived. Even still, the Board finds that the growing
season in Central Oregon is one of the shortest in the entire state. Mr. Campbell provided
testimony that Central Oregon spans a wide area and there are significant climactic
variations that impact precipitation, temperature, wind and frost -free days. Examples
offered by COLW included farms like Smith Rock Ranch, which are significantly lower in
elevation, and which make them more suitable for crops due to a longer growing season
with more frost -free days.
The Board's previous findings on this factor are reaffirmed.
4. Existing and future availability of water for farm irrigation purposes
LUBA's remand required the County to consider the Property as if it already had irrigation.
Testimony from both Greg Mohnen and Rand Campbell discussed the difficulty of installing
an irrigation system due to the extreme rockiness of the soils. Mr. Campbell estimated that
such a system would cost over $100,000 and specifically commented that the physical
characteristics of the Property make it unlikely to be successful. Therefore, no reasonable
farmer would expend the resources to establish a system on the Property. As was shown in
the aerials, any previous attempts to irrigate were short lived. The Board finds this is
persuasive evidence to support findings that the Property is not suited for irrigated
agriculture —especially when coupled with the soil fertility challenges on the Property.
This Board has previously found that irrigating Class VII and VIII soils is not an accepted
farming practice in Deschutes County. That finding was not upset in LUBA's review in Central
Oregon Landwatch v. Deschutes County, _ Or LUBA _ (LUBA No. 2022-075 December 6,
2022) (Aceti) and it remains true here. While the Property may have limited Class VI soils, we
find persuasive the testimony of Mr. Campbell and Mr. Mohnen that operators would not
seek to establish an irrigation system on the Property. Mr. Rabe's testimony is also
persuasive —the areas of better soils are irregular in shape and occur in 15 separate
Exhibit "F" to Ordinance 2026-009 10
File No. 247-25-000759-A
delineations as small as 0.12 acres in size. The rocky outcroppings and irregular shape of the
limited good soils make the Property unsuitable for irrigation.
5. Existing land use patterns
The Property is surrounded on all sides with rural residential uses. Multiple comments in the
record, including from Matt Cyrus and Rand Campbell, highlight that the adjacent properties
are developed for small residential lots and would interfere with agricultural practices
initiated on the Property. Applicant also provided an extensive analysis in the prior
proceeding regarding surrounding uses and that there were no other farm use parcels in the
area. Given that all of the surrounding areas or adjacent areas are in residential use, this is
a strong indicator that the Property is similarly not suitable for farm use. Additionally, the
Property in portions abuts the Deschutes River and is very close to significant recreation
including that at Tumalo State Park. This could provide additional conflict that, consistent
with Mr. Cyrus and Mr. Campbell's testimony, may provide additional reason why the
Property is unsuitable for farm uses due to potential conflicts.
6. Technological and energy inputs required
The Property has few improvements and would require substantial work, including new
fencing, in order to put to any sort of farm use. COLW argues that the property cannot be
considered in its "neglected" state; however, COLW ignores that there has never been an
actual farm use established or operated on the Property. Outlined above are the substantial
inputs that would be needed, including new fencing, irrigation equipment, and others.
Although relevant to other factors as well, one use that has been alleged for possibility on
the Property has been horse and equine uses, including boarding. However, the evidence
shows that such a use is impracticable at best and that no reasonable operator would seek
to start a horse facility on the Property. Horse facilities require substantial infrastructure,
including separate pastures for boarding, barns, storage, and arenas. These improvements
can require a significant investment in money. A specific operation and proforma was
generated for the Property, which shows the impracticality. In short, even assuming a
boarding operation —which would be large —at 20 horses consistently per month, there
would be operating losses of about $50,000. No reasonable farmer would seek to build an
equine operation on the Property —they would seek a propertythat already had the required
improvements. The same is true for soil enrichment because of its extreme cost.
7. Accepted farming practices
COLW uses the term "accepted farming practice" throughout its submittals claiming that
growing certain crops are accepted farming practices. COLW misunderstands that term. An
"accepted farming practice" is a mode of operation used by similarly situated or common
farms; it is not the growth of a particular crop.
Exhibit "F" to Ordinance 2026-009 11
File No. 247-25-000759-A
Given the poor soil quality on the site, none of the accepted farming practices in Deschutes
County would be appropriate on the Property. This includes irrigated agriculture. Deschutes
County has previously determined, in Aceti, that it is not an accepted farm practice to irrigate
Class VII and VIII soils, which is by far the predominant soil types here.
The Board is persuaded by the evidence provided by the Applicant, including the expert
testimony of Greg Mohnen, Matt Cyrus, and Rand Campbell that no reasonable farmerwould
seek to establish a farm on the Property and that no accepted farming practice is appropriate
on the Property.
Additional response to COLW Claims
In its Hearing submittal and in its rebuttal submittal dated February 11, 2026, COLW argues
that several "farms" are producing certain crops and that they are essentially
indistinguishable from the Property. The Board does not find COLW's arguments persuasive.
As an initial matter, COLW did not provide any reliable evidence that proves or substantiates
its claims. Mere statements by COLW's attorney are not evidence. Such statements, including
"Smiley Lavender Farm is operated in Central Oregon for the primary purpose of obtaining
a profit in money"' simply are not grounded on any factual basis. LUBA has long held that
the lay opinion of an attorney cannot form the basis for substantial evidence in a decision,
and we adhere to that precedent. Absent testimony from an owner or operator of Smiley
Lavender Farm itself there is nothing to corroborate the arguments of COLW's attorney.
COLW's submittal of web pages and statements, made without support of the farm owner,
do not establish that "Smiley Lavender Farm" (or any other example provided by COLW) is in
fact engaged in an ORS 215.203(2)(a) farm use, or whether such properties are merely being
used as a hobby farm. To properly consider COLW's arguments, the Board would need
evidence from the farmers or other experts or operators. COLW's supposition that such uses
are "farm uses" or are being operated to obtain a profit in money, as opposed to merely for
the purpose of engaging in a rural lifestyle, is unsupported by evidence.
The Board finds that the "farm" examples provided by COLW as similar in nature to the
Property are not persuasive. The Applicant provided contrary evidence regarding each
example and evidenced how each property and/or operation was substantially different than
the Property. We broadly agree with Applicant's analysis. We also disagree with COLW's base
premise. We find that an applicant need not prove that its property is different from each
and every other farm use in the County. An applicant must address the factors in OAR 660-
033-0020(1)(a)(B) and other relevant applicable criteria —none of which require a
comparative analysis between properties.6 To the extent COLW wishes to provide evidence
of farm uses and argue how a particular property is suitable for such, it may do so. However,
the lay opinion of its lawyer cannot form an adequate factual basis to satisfy the substantial
5 COLW L dated Feb 11, 2026, p. 2.
6 To the extent this could require an analysis of potential combined or conjoined use in a typical
review, that review was previously completed and is not within the scope of the remand here.
Exhibit "F" to Ordinance 2026-009 12
File No. 247-25-000759-A
evidence requirements in Oregon land use law. See Oregon Coast Alliance v. City of Brookings,
72 Or LUBA 222 (2015). We find the Applicant's expert testimony and evidence, including that
from Brian Rabe, Greg Mohnen, Matt Cyrus, and Rand Campbell more persuasive as to the
factors and a determination of whether the Property is suitable for farm use. Based on this
evidence, we find that the Property is not.
COLW's Record Objection to Applicant's Final Legal Argument
COLW submitted a record objection to the inclusion of several exhibits to Applicant's Final
Legal Argument. As stated at our deliberations, we overrule that objection and accept the
Applicant's exhibits. The Board agrees with staff that the Applicant's exhibits are not new
evidence and COLW is incorrect. The Applicant provided a tabular form that summarized
evidence already in the record, a proposed condition of approval, and provided us copies of
ordinances that are already the law of the land in this County and subject to official notice
under ORS 40.090. None of this is new evidence. Our procedural ordinance does not require
an applicant to make a separate motion for official notice, and we do not impose such a
requirement here. The Board therefore rejects COLW's objection made on February 19, 2026,
and its renewed objection on March 5, 2026.
C. Decision
THE BOARD HEREBY APPROVES THE APPLICATION SUBJECT TO THE FOLLOWING
CONDITION OF APPROVAL(S):
Conditions of Approval:
1) The attached Conditions of Approval Agreement, with restrictive covenants
enforceable by Deschutes County, must be recorded within 180 days of the date this
decision is final. If the decision is appealed, the 180-day period will run from the date
a final decision and, if applicable, judgment on appeal has been entered.
Exhibit "F" to Ordinance 2026-009 13
File No. 247-25-000759-A
EXHIBIT "A" to BOCC Remand Decision File No.
247-25-000759-A
After recording return to:
Deschutes County Community Development
117 NW Lafayette Avenue
Bend, OR 97703
CONDITIONS OF APPROVAL AGREEMENT
AND RESTRICTIVE COVENANT
This conditions of approval agreement is made this day of , 2026 by
Destiny Court Properties LLC, an Oregon limited liability company (hereinafter "Destiny
Court") and Deschutes County, a political subdivision of the State of Oregon (hereinafter
"County").
RECITALS
WHEREAS, Destiny Court sought approval of a plan amendment from Agricultural (AG)
to Rural Residential Exception Area (RREA) and zone change from Exclusive Farm Use —
Tumalo/Redmond/Bend subzone (EFU-TRB) to Multiple Use Agricultural (MUA-10) in File
Nos. 247-22-000436-ZC and 247-22-000443-PA for the property described on Exhibit A (the
"Property"), a copy of which is attached and incorporated by reference herein; and
WHEREAS, the applicant in the land use review process asked the County to impose a
condition of approval on future development of the Property that will apply while the Property is
zoned MUA-10: and
WHEREAS, the Board of Commissioners approved the land use applications and
imposed the condition of approval requested; and
WHEREAS, the condition of approval requires that an agreement be recorded that
memorializes the condition of approval and applies it to the rezoned property:
NOW THEREFORE, the parties agree as follows:
Any future subdivision shall be limited to equivalent density of 1 lot per 10-acres, which
can be accomplished through use of a cluster or planned unit development for a minimum
lot size of 2-acres with associated 8-acre reservation of open space. This condition shall
be required so long as the property remains outside of an urban growth boundary.
Page 1 of 4 - Conditions ofApproval Agreement
145226\295212\50063046.v2
DATED this
COUNTY
ATTEST:
Recording Secretary
STATE OF OREGON
day of , 20
COUNTY OF DESCHUTES
BOARD OF COMMISSIONERS OF DESCHUTES
COUNTY
PHIL CHANG, Chair
ANTHONY DeBONE, Vice -Chair
PATTI ADAIR, Commissioner
) SS.
This instrument was acknowledged before me on , 20 by Phil Chang,
Anthony DeBone, and Patti Adair, the above -named Board of County Commissioners of
Deschutes County, Oregon and acknowledged the foregoing instrument on behalf of Deschutes
County.
Notary Public
Print Name
My commission expires
Page 2 of 4 - Conditions of Appro>>al Agreement
145226\295212\50063046.v2
DATED this day of , 20
DESTINY COURT PROPERTIES LLC
By: Robert Cochran
Its:
STATE OF OREGON )
) SS.
COUNTY OF DESCHUTES )
This instrument was acknowledged before me on , 20 by Ronald
Cochran as of Destiny Court Properties LLC, an Oregon limited liability
corporation.
Notary Public
Print Name
My commission expires
Page 3 of 4 - Conditions of Approval Agreement
145226\295212\50063046.Q
EXHIBIT A
PROPERTY DESCRIPTION
(TAX LOT 100, MAP 17-12-07)
A TRACT OF LAND IN THE NORTHEAST QUARTER OF SECTION 7, TOWNSHIP 17 SOUTH,
RANGE 12 EAST OF THE WILLAMETTE MERIDIAN, DESCHUTES COUNTY, OREGON, A
PART OF THAT CERTAIN TRACT OF LAND CONVEYED TO DESTINY COURT PROPERTIES,
LLC, AN OREGON LIMITED LIABILITY COMPANY, IN DOCUMENT NO. 2021-61291,
DESCHUTES COUNTY OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF SAID DESTINY COURT PROPERTIES,
SAID NORTHWEST CORNER BEING ON THE CENTERLINE OF THE DESCHUTES RIVER AND
BEARING, ALONG THE NORTH LINE OF SAID SECTION 7, S89°35'43"E 432.83 FEET FROM
THE NORTH QUARTER CORNER OF SAID SECTION 7; THENCE CONTINUING ALONG SAID
NORTH LINE, S89°35'43"E 425.47 FEET TO A POINT; THENCE DEPARTING SAID NORTH LINE,
S13011'48"W 239.62 FEET TO A POINT; THENCE S3°48'59"E 152.39 FEET TO THE TRUE POINT
OF BEGINNING; THENCE S89°52'26"W 298.75 FEET TO A POINT; THENCE SO°00'00"E 366.21
FEET TO A POINT; THENCE S5°57'50"W 178.47 FEET TO A POINT; THENCE S11°00'43"W
127.94 FEET TO A POINT; THENCE S15°48'44"W 92.60 FEET TO A POINT ON SAID
DESCHUTES RIVER CENTERLINE; THENCE ALONG SAID CENTERLINE, S 16°08' 19"W 179.19
FEET TO A POINT ON THE SOUTH LINE OF THE NORTHWEST QUARTER OF THE
NORTHEAST QUARTER OF SAID SECTION 7; THENCE ALONG SAID SOUTH LINE,
S89038'02"E 914.03 FEET TO THE NORTHEAST SIXTEENTH (NE1/16) CORNER OF SAID
SECTION 7; THENCE ALONG THE WEST LINE OF THE SOU T HEAST QUARTER OF THE
NORTHEAST QUARTER (SE 1/4 NE 1/4) OF SAID SECTION 7, SO' 12' 11 "W 1320.01 FEET TO THE
CENTER EAST SIXTEENTH CORNER (CE1/16) OF SAID SECTION 7; THENCE ALONG THE
EAST -WEST CENTERLINE OF SAID SECTION 7, S89-37'30"E 1318.35 FEET TO THE EAST
QUARTER CORNER OF SAID SECTION 7, BEING THE SOUTHEAST CORNER OF PARCEL C
OF PARTITION PLAT 1996-55; THENCE ALONG THE EASTERLY LINE OF SAID PARCEL C
THE FOLLOWING COURSES: NO°08'26"E 1080.22 FEET; THENCE N89°37'33"W 50.00 FEET;
THENCE 193.64 FEET ALONG THE ARC OF A 50-FOOT RADIUS CURVE TO THE RIGHT,
THROUGH A CENTRAL ANGLE OF 221053'48" (THE CHORD OF WHICH BEARS N32°08'04"W,
93.39 FEET); THENCE NO°07'29"E 634.22 FEET TO A POINT ON THE EASTERLY LINE OF SAID
DESTINY COURT PROPERTIES, LLC TRACT; THENCE ALONG SAID EASTERLY LINE,
N89036'12"W 1684.60 FEET; THENCE N3d48'59"W 461.08 FEET THE TRUE POINT OF
BEGINNING.
CONTAINING A TOTAL AREA OF 65.11 ACRES, MORE OR LESS.
Conditions of Approval Agreement —Exhibit A
145226\295212\50063046.v2
EXHIBIT "G" to Ordinance 2026-009
Exhibit "F" to Ordinance 2024-012
BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
FINDINGS OF FACT AND CONCLUSIONS OF LAW
FILE NUMBERS: 247-22-000436-ZC, 247-22-000443-PA, 247-23-000651-MA
SUBJECT PROPERTY/
OWNER/ DESTINY COURT PROPERTIES, LLC
APPLICANT: Map and Taxlot: 171207A000100
Account:113037
Situs Address: 19975 DESTINY CT, BEND, OR 97703
APPLICANT'S
ATTORNEY: Elizabeth Dickson, Dickson Hatfield LLP
STAFF PLANNER: Caroline House, Senior Planner
Anthony Raguine, Principal Planner
REQUEST: Comprehensive Plan Amendment from Agricultural to Rural Residential
Exception Area and Zone Change from Exclusive Farm Use to Multiple
Use Agricultural Zone.
1. SUMMARY OF DECISION
In this decision, the Board of County Commissioners ("Board") considers whether to
approve the proposed Comprehensive Plan Amendment and Zone Change. Hearings
Officer Frank recommended approval in his April 26, 2024, recommendation, after a
Public Hearing held on February 27, 2024. No appeals were filed. Land Use File
Numbers 247-22-000436-ZC, 247-22-000443-PA and 247-23-000051-MA contain the
Hearings Officer's Recommendation ("Recommendation") and related documents as
referenced herein. The Board considered the applications de novo, incorporating the
Record below, and a public hearing before the Board was held on July 24, 2024.
On October 9, 2024, following deliberation, the Board voted 2-1 finding the applicant
had met their burden of proof, and moved to uphold the Recommendation and
approving the Comprehensive Plan Amendment and Zone Change applications on
the subject property.
Exhibit' F" to Ordinance 2024-012
File Nos. 247-22-000436-ZC, 247-22-000443-PA, 247-23-000651-MA 1
The Recommendation dated April 26, 2024, is hereby incorporated as part of this
decision, including any and all interpretations of the County's code, and modified as
follows. In the event of conflict, the findings in this decision control.
II. BASIC FINDINGS OF FACT:
The Board adopts and incorporates by reference the code interpretations, findings of
fact, and conclusions of law in the Recommendation as set forth in Section I,
Applicable Criteria, and Section II, Basic Findings. The Recommendation is attached
as Exhibit G to the Board's Decision. The following additions are made to the basic
findings in the Recommendation.
A. PROCEDURAL HISTORY: A public hearing was held before a Hearings Officer on
February 27, 2024, and the Recommendation was issued on April 26, 2024. The Board
conducted a de novo hearing on July 24, 2024. The Board left the record open until
August 7, 2024, for all parties to submit written legal argument; until August 14, 2024,
for all parties to submit rebuttal; and until August 21, 2024, for applicant's final
argument. The Board rendered its oral decision after deliberations on October 9,
2024, affirming the Recommendation and modifying the findings as described herein.
This written Decision memorializes that decision.
B. REVIEW PERIOD: The applications were submitted on May 27, 2022. Planning Division
deemed the applications incomplete on June 24, 2022. Applicant submitted First
Supplement on November 23, 2022, a Second Supplement and Modification of
Application on September 1, 2023. The 150-day clock does not apply to the
applications for the Comprehensive Plan Amendment and Zone Change.
The Board takes note that the subject property achieved its current configuration via
property line adjustment approval 247-23-000653-LL.
C. PUBLIC COMMENTS: Planning Division received three comments from the public
between the issuance of the Recommendation and the close of the Public Record for
public comment after the Board Public Hearing on August 14, 2024. The Planning
Division also received one comment from a public agency, Department of Land
Conservation and Development ("DLCD"), on August 7, 2024, in response to the
Planning Division's inquiry about applicability of a recent statute adopted to allow
Accessory Dwelling Units ("ADUs"). The Cherrie Brooks comment dated July 16, 2024,
did not address relevant criteria to the application. Consequently, the Board did not
consider these comments. Carol Macbeth filed two comments on behalf of Central
Oregon Land Watch, one on July 24, 2024, and a second comment on August 8, 2024.
Both contained arguments regarding subjects raised before the Hearings Officer
below, and introduced additional facts. Applicant addressed all relevant arguments
Exhibit T" to Ordinance 2024-012
File Nos. 247-22-000436-ZC, 247-22-000443-PA, 247-23-000651-MA 2
raised within the allowed time periods for rebuttal, submitting supplemental
evidence where needed. The Board considered all arguments raised in deliberations,
finding the Macbeth arguments unpersuasive.
Planning Division's inquiry to DLCD addressed whether ADUs could be allowed on the
Subject Property if it were rezoned. DLCD entered a comment into the Record on the
afternoon of the last day of the Open Comment Period, noting that the unusual
circumstances of the proposed rezone make the approval of ADUs "entirely up to the
county...." [underline original]. Applicant, in rebuttal period, addressed the possibility
of the rezone impact with additional evidence and argument. The Board considered
the argument in deliberations, finding Applicant addressed the issue to the Board's
satisfaction.
III. FINDINGS
This Board adopts the Recommendation for Approval, as supplemented by noted
Findings related to matters which arose after the Recommendation was issued.
1. Subject Property as "Agricultural Land" with respect to Soils
Statewide Planning Goal 3, OAR 660-033-0020(1)(a)(A)
FINDING: The Board adopts the Recommendation unanimously, finding that the
Subject Property is predominantly NRCS Class VII and VIII soils, and consequently is
not Agricultural Land.
2. Subject Property as "Agricultural Land" with respect to Factors
Statewide Planning Goal 3, OAR 660-033-0020(1)(a)(B)
This rule analyzes what constitutes "Agricultural Land" as referenced in Statewide
Planning Goal 3. One of those factors is "existing and future availability of water for
farm irrigation purposes." At the time of the Public Hearing before Hearings Officer
Frank and in the Open Record period leading up to draft of the Recommendation by
Hearings Officer Frank, confirmation from Swalley Irrigation District was not available
to verify the status of irrigation water appurtenant to the Subject Property. The
Hearings Officer's Findings noted on Page 46, paragraph 2, that irrigation rights did
exist at the Subject Property. He went on to note that existence may be suggestive of
agricultural land, but standing alone, did not determine that the land was agricultural
land.
Exhibit T" to Ordinance 2024-012
File Nos. 247-22-000436-ZC, 247-22-000443-PA, 247-23-000651-MA 3
On August 7, 2024, Applicant submitted Exhibit 42 into the Record before the Board.
That Exhibit conclusively determined by letter from Swalley Irrigation District dated
August 1, 2024, that there are no longer any Swalley water rights on the Subject
Property.
FINDING: The Board adopts the Recommendation regarding "Agricultural Land"
where it is determined that the Subject Property is not properly characterized as
Agricultural Land. By correction, the Board finds that no irrigation water rights exist
at the Subject Property, as evidenced by Exhibit 42 in the Record, Swalley Letter of No
Appurtenant Water Rights. This does not change the Hearings Officer's conclusion
that the Subject Property is not Agricultural Land.
The Board adopts the Recommendation by a vote of 2 to 1, finding that the Subject
Property is not Agricultural Land when considering factors established by the Goal,
the Administrative Rules, Oregon Revised Statutes, and relevant common law.
3. Subject Property as "Agricultural Land" when considering Adjacent or
Nearby Agricultural Lands
Statewide Planning Goal 3, OAR 660-033-0020(1)(a)(C)
FINDING: The Board unanimously adopts the Recommendation, finding no adjacent
or nearby agricultural lands and no evidence to suggest that a nearby farm would
benefit from agricultural use of the Subject Property including use as a storage or
maintenance facilitv.
4. Goal 14 Exception Requirement
Statewide Planning Goal 14
FINDING: The Board adopts the Recommendation by a vote of 2 to 1, finding that the
Plan Amendment / Zone Change proposed will not result in urbanization such that an
exception to Goal 14 is required.
Exhibit'T' to Ordinance 2024-012
File Nos. 247-22-000436-ZC, 247-22-000443-PA, 247-23-000651-MA 4
S. Allowance of Accessory Dwelling Units under ORS 215.495, ORS 215.501 on
Rural Lands, such as Subject Property
Transportation Planning Rule, OAR 660-012-0060, DCC 18.116.310(E)(4)
A question posed by a member of the public at a public hearing preceding the subject
application on July 24, 2024, raised the issue of whether ADUs would be allowed on
rural lands rezoned without necessity of exception to Statewide Planning Goals under
ORS 215.495 and ORS 215.501, recently effective. Such additional use could pose
concerns related to increased density on rural lands and rural roadways. Planning
Division staff addressed the question to the DLCD. DLCD's response was received and
submitted into the Record on August 7, 2024. The Department's response was
inconclusive, noting that "[t]he department concludes approved rezones of resource
land could result in the development of ADUs if the county permits rural ADUs on
non -resource lands."
Applicant subsequently submitted Transight Consulting Transportation's Errata,
providing an analysis of possible ADU impacts resulting from approval of the subject
rezone. It is entered into the Record as Exhibit 43. It concludes that the additional
ADU-related trips would not violate applicable standards.
FINDING: The Board finds unanimously that ADUs, if allowed on the Subject Property,
are not foreseen to reduce operation levels on OB Riley Road and Destiny Court to an
unacceptable level of service, based on the expected trip generation for 14 ADUs. The
Board further finds ADUs would not change the functional classification of existing
roads, change standards implementing a functional classification system, or result in
types of travel that are inconsistent with the functional classification of existing roads.
For purposes of the Transportation Planning Rule (OAR 660-012-0060) a significant
impact does not occur with or without the inclusion of ADUs on the Subject Property.
IV. DECISION:
Based upon the foregoing Findings of Fact and Conclusions of Law, the Board of
County Commissioners hereby APPROVES the Applicant's application for a Deschutes
Comprehensive Plan Amendment and Zone Change for the Subject Property.
Exhibit T" to Ordinance 2024-012
File Nos. 247-22-000436-ZC, 247-22-000443-PA, 247-23-000651-MA 5
EXHIBIT "H" to Ordinance 2026-009 i,2024
HEARINGS OFFICER RECOMMENDATION
FILE NUMBERS: 247-22-000436-ZC / 247-22-000443-PA / 247-23-000651-MA
HEARING: February 27, 2023, 6:00 p.m.
Zoom & Barnes & Sawyer Rooms
SUBJECT PROPERTY Mailing Name: DESTINY COURT PROPERTIES LLC ("Applicant")
APPLICANT/OWNER: Maps and Tax Lots: 17120700001001
Accounts: 113037
Situs Address: 19975 DESTINY CT, BEND, OR 97703
("Subject Property")
Note: The Subject Property has been recently reconfigured as part of a property
line adjustment.
APPLICANT'S ATTORNEY: Elizabeth Dickson ("Dickson"), Dickson & Hatfield LLP
REQUEST: The Applicant requested a Deschutes County Comprehensive Plan Amendment
to change the designation of the Subject Property from Agricultural ("AG") to
Rural Residential Exception Area ("RREA"); and a Zone Change to rezone the
Subject Property from Exclusive Farm Use — Tumalo/Redmond/Bend Subzone
("EFU") to Multiple Use Agricultural ("MUA").
Note: The Applicant also applied for conditional use and tentative plan approval
for a 14-lot residential Planned Unit Development ("PUD"). The development
proposal request is not a part of this review.
STAFF PLANNER: Caroline House, Senior Planner
Caroline. House@deschutes.org
RECORD: Record items can be viewed and downloaded from:
https://www.desch utes.org/cd/page/247-22-000436-zc-247-22-000443-pa-
destiny-court-properties-Ilc-comprehensive-plan-amendment
1. APPLICABLE CRITERIA
Deschutes County Code ("DCC")
Title 18, Deschutes County Zoning Ordinance
Chapter 18.04, Title, Purpose, and Definitions
Chapter 18.16, Exclusive Farm Use Zones ("EFU")
Chapter 18.32, Multiple Use Agricultural ("MUA10")
Chapter 18.56, Surface Mining Impact Area Combining Zone ("SMIA")
Chapter 18.84, Landscape Management Combining Zone ("LM")
Chapter 18.136, Amendments
The Deschutes County Assessor's Office updated the tax map between the mailing of the Notice of Public Hearing and the release of
The County Planning Staff Report. The Subject Property is now identified as a singular tax lot and account (ref. TL 100 / 113037).
Title 22, Deschutes County Development Procedures Ordinance
Chapter 22.20.055, Modification of Application
Deschutes County Comprehensive Plan ("DCCP")
Chapter 2, Resource Management
Chapter 3, Rural Growth Management
Appendix C, Transportation System Plan
Oregon Administrative Rules ("OAR") Chapter 660
Division 6, Forest Lands
Division 12, Transportation Planning
Division 15, Statewide Planning Goals
Division 33, Agricultural Land
II. BASF FINDINGS
LOT OF RECORD: The Subject Property is one (1) legal lot of record (County file no. 247-22-000433-LR) and its
current configuration reflects a recently perfected property line adjustment (County file no. 247-23-000653-LL).
The Hearings Officer incorporates as additional findings for this section the Applicant's comments (Supplemental
Rebuttal, 11/23/2022, pages 3 — 4) and the decisions rendered in 247-22-000433-LR/247-23-000653-LL.
ZONING: The Subject Property is zoned EFU-TRB subzone and is partially located in the LM and SMIA Combining
Zones. The recently perfected property line adjustment removed all Flood Plain ("FP") zoned areas on the Subject
Property (County file no. 247-23-000653-LL) and the Applicant filed a Modification of application to incorporate
the changes associated with the reconfigured property (County file no. 247-23-000651-MA).
SITE DESCRIPTION: According to the Applicant's materials, the Subject Property is +/-65.1 acres in size, irregularly
shaped, and there are no structures or improvements on the Subject Property except for a small pond adjacent
to the eastern property line and near the terminus of Destiny Court. Some areas of the Subject Property have
been previously used for raising livestock and/or horses. Irrigation water rights (Swalley Irrigation District), once
existing at the Subject Property but may have been transferred. The Subject Property is not currently being used
for farming purposes. The remaining undisturbed areas of the Subject Property consist of native vegetation and
rock outcroppings.
Destiny Court, a paved County Road', terminates at the northeastern Subject Property line and Northern Estates
Lane, a paved Local Access Road', terminates at the southern Subject Property line. As shown in Figure 1 below,
grade varies across the property with the most dramatic changes along the northwestern corner of the Subject
Property, which consists of rimrock along the Deschutes River canyon. The nearest boundary for the City of Bend's
Urban Growth Boundary ("UGB") is located approximately 2,000 feet to the southeast of the Subject Property.
Z Per DCC 12.04.060, "County Road" means a public road under the jurisdiction of a county that has been designated as a county
road under ORS 368.016 and maintained by Deschutes County.
3 Per DCC 12.04.060, "Local Access Road" means any public street or road which is not maintained by the County but over which the
County has jurisdictional authority.
Figure 1— Topographical Map of the Subject Property
SOILS: The Natural Resources Conservation Service ('"NRCS") map shown on the County's DIAL fJIS mapping
program identifies three (3) soil complex units on the Subject Property: 38B, Deskamp-Gosney complex, 0 to 8
percent slopes, 58C, Gosney-Rock outcrop-Deskamp complex, 0-15 percent slopes, and 106E, Redslide Lickskillet
complex, 30-50 percent slopes.
An Agricultural Soils Capability Assessment (Order 1 Soil Survey — referred to by the Hearings Officer as the "Site -
Specific Study") was conducted by Brian T. Rabe, CPSS, WWS, for the majority of the Subject Property and found
the following':
"Cascade Earth Sciences (CES) was retained to conduct a site -specific soil survey on a substantial portion
4 Ref. Applicant's Exhibit 3 and Exhibit 24.
3
of the above referenced parcels (Site) consisting of approximately 63 acres. The subject acreage is zoned
Exclusive Farm Use Tumalo Redmond Bend (EFUTRB). Those areas not specifically evaluated generally
consisted of steeper slopes with rocky soils leading into the adjacent Deschutes River canyon. We
understand that an application to Deschutes County is being prepared to request a zone change to a non -
resource designation (rural residential). The soil -related criteria for this process is contained in Oregon
Administrative Rules (OAR) 660-033. Parcels need to consist predominately of soils in land capability
classes V11 and Vlll to be considered for a non -resource designation.
SUMMARYAND CONCLUSIONS
The purpose of this report is to present the results of an assessment to verify and, where necessary, refine
the soils, map units, and boundaries mapped on the Site and to determine whether the soils on the Site
meet the land capability classification criteria for a non -resource zoning designation. The published soil
survey information was reviewed and direct observations of soil conditions were made at representative
locations across the Site. CES has determined that the information from the published soil survey was
generally consistent with observations on the ground with boundary refinements limited to delineating
components of the complexes mapped by the NRCS. CES has determined that 41.35 acres, or 65.8 percent,
of the Site consists of Class Vll and Class Vlll soils. Since the Site is predominantly Class VII and Class Vlll
soils and does not otherwise meet the criteria for further consideration as agricultural land, the Site meets
the soils criteria for consideration of a non -resource zoning designation."
Further discussion regarding soils is found in the findings related to DCC 18.04.030 and Statewide Planning Goal 3
below.
LAND USE HISTORY:
• LR-94-42: The County approved a Lot of Record Verification.
• MP-94-29: The County approved a three -parcel partition. The Subject property was originally platted as a part
of Parcel 1 (ref. PP1995-05).
• CU-95-68: The County conditionally approved a non -farm dwelling on Parcel 1 of MP-94-29.
• MP-96-07/FPA-96-39: The County approved a three -parcel partition. The Subject Property was platted as a
part of Parcel C (ref. PP1995-05).
• V-97-3/LL-97-10: The County approved a minor variance and a lot line adjustment between the Subject
Property and properties identified on Assessor's Map 17-12-07, as tax lots 102 and 103.
• E-97-16: The County approved a 1-year extension of CU-95-68.
• E-98-28: The County approved a 2-year extension of CU-95-68.
• E-99-26: The County approved a second 2-year extension of CU-95-68.
• LM-00-195/SMA-00-33: Site plan approval for the previously approved non -farm dwelling in the Landscape
Management and Surface Mining Impact Area Combining Zones. However, the non -farm dwelling use was
never initiated and the approvals expired.
• 247-22-000433-LR: The County found the Subject Property is recognized as one legal lot of record.
• 247-23-000653-LL: The County approved a property line adjustment between the Subject Property and a
property identified on Assessor's Map 17-12-07, as tax lox 200.
SURROUNDING LAND USES: Staff (Staff Report, pages 5 - 6) provided the following descriptive summary of
surrounding uses and zoning:
North: The two closest properties to the north are zoned EFU-TRB and are developed with non farm dwellings.
Beyond these two properties is Tumalo State Park and other residentially developed MUA10 zoned properties.
Tumalo State Park is zoned Open Space & Conservation Zone "(OS&C"), FP, MUA10, and EFU-TRB.
East: The properties to the east are zoned MUA10 and are predominantly developed with residential uses. The
lot sizes vary from less than one (1) acre to 16 acres. State Highway 20 is approximately 1,700 feet to the east.
South: The properties to the south-southwest are platted 10-acre residential lots in the Pacific Cascade Heights
and Juniper Rim subdivisions. These properties are zoned Urban Area Reserve Zone ("UAR10"). The properties
to the south-southeast are also residentially developed and zoned UAR10. However, these lots are not part of
a recorded subdivision or partition and range in size from +/- .96 acres to +/-17.84 acres. Further to the south
is a large UAR10-zoned tract of land owned by the Elkins Revocable Trust and Bend Metro Parks & Recreation
District's Riley Ranch Reserve. As noted above, the City of Bend's UGB is approximately 2,000 feet to the
southeast and properties within the UGB are in the City of Bend's zoning jurisdiction.
West: The Oregon Parks & Recreation Department owns the abutting land to the west-southwest. The
Deschutes River crosses this property and continues generally in a north -south direction. This Oregon Parks &
Recreation Department property is zoned EFU-TRB and FP and appears to be undeveloped. However, there is
a public trail along the banks of the Deschutes River connecting Tumalo State Park, to the north, and Riley
Ranch Reserve, to the south. Abutting the northwest corner of the property is a privately owned EFU and FP
zoned property that is developed residentially and also includes a segment of the publicly accessible trail
connecting Tumalo State Park and Riley Ranch Reserve. Further to the west is Surface Mining Site No. 303,
which Oregon Department of Geology and Mineral Industries ("DOGAMI") identifies as a "permitted"s surface
mine, and privately owned EFU-TRB zoned properties.
Applicant provided additional comments related to the site description in its March 19, 2024 record submission.
The Hearings Officer incorporates the Applicant March 19, 2024 (pages 6 — 10) surrounding property descriptions
as additional findings for this section. See also the Hearings Officer's findings for Section 2.7, Open Spaces, Scenic
Views and Sites Open Space and Scenic View Designations and Protections.
PUBLIC AGENCY COMMENTS: The Planning Division mailed notice on June 3, 2022, and September 9, 2023, to
several public agencies and received the following comments:
Bend Fire & Rescue, Jason Bolen
A three -page letter was submitted by Bend Fire & Rescue and is incorporated herein by reference.
STAFF REPORT COMMENT: The Bend Fire & Rescue comments appear to be related to the Fire Department
standards that apply to the 14-lot PUD. This request is not a part of this review.
Deschutes Countv Addressing Coordinator. Tracv Griffin
Addresses and street names for this proposed subdivision will be determined and approved during the
tentative plat phase of this development.
5 DOGAMI's Mining Permit & Status Code Reference defines "permitted" as Certificate, Exemption, or Permit has been approved and issued
- does not necessarily indicate site is active.
Deschutes County Building Division`*:ar Jy :iei�
NOTICE: The Deschutes County Building Safety Divisions code mandates that Access, Egress, Setbacks, Fire
& Life Safety, Fire Fighting Water Supplies, etc. must be specifically addressed during the appropriate plan
review process with regard to any proposed structures and occupancies.
Accordingly, all Building Code required items will be addressed, when a specific structure, occupancy, and
type of construction is proposed and submitted for plan review.
Deschutes County Onsite Wastewater Division, Todd Cleveland
Prior to final plat approval, each proposed residential lot must have a complete approved site evaluation.
Deschutes County Road Department, Cody Smith
I have reviewed the application materials for the above -referenced file numbers, proposing 14-lot PUD
subdivision of Tax Lots 100 and 101 on County Assessor's Tax Map 17-12-07 and Tax Lot 6201 on County
Assessor's Tax Map 17-12-08B. The subject property is accessed by Destiny Court, which presently
terminates at the eastern boundary of the subject property, and Northern Estates Lane, which presently
terminates at the southern boundary of the subject property. Road Department records indicate that
both roads have the following attributes where they abut or provide access to the subject property:
Destiny Court
• Road Status: County Road
• Surface Type: Asphalt Concrete
• Surface Width: 28 feet
• Functional Classification: Rural Local
• Right of Way Width: 60 feet
• Right of Way Instrument: Partition Plat No. 1995-5
Northern Estates Drive
• Road Status:
• Surface Type:
• Surface Width:
• Functional Classification:
• Right of Way Width:
• Right of Way Instrument:
Local Access Road
Asphalt Concrete
28 feet
Rural Local
60 feet
Partition Plat No. 1995-5
Where they provide access to or abut the subject property, Destiny Court and Northern Estates Drive
meet or exceed the minimum rural local road standards given in Deschutes County Code (DCC) 17.48A
The applicant has proposed an interior private road system that would be an extension of both Destiny
Court and Northern Estates Drive. Staff note that the site traffic report submitted with the application
materials recommends that "All internal streets should be constructed within a dedicated public access
easement." State law and DCC do not differentiate between "public access easements" and "public rights
of way"; they are one and the same. Road Department staff assume that the applicant's intent is to build
public internal roads to the private road standard.
Deschutes County Road Department requests that approval of the proposed land uses be subject to the
following conditions:
A
Prior to construction of road improvements:
• Applicant shall submit road improvement plans and stormwater drainage report to Road
Department for approval prior to commencement of construction pursuant to DCC 17.40.020 and
17.48.060. The roads shall be designed to the minimum road standard given in 17.48.160,
17.48.180, and 17.48A. Stormwater drainage shall be designed in accordance with DCC 17.48.190
and the latest edition of the Central Oregon Stormwater Manual. Road improvement plans shall
be prepared in accordance with all applicable sections of DCC 17.48.
Prior to final plat approval by Road Department:
• Applicant shall complete road improvements according to the approved plans and all applicable
sections of DCC 17.48. Improvements shall be constructed under the inspection of a registered
professional engineer consistent with ORS 92.097 and DCC 17.40.040. Upon completion of road
improvements, applicant shall provide a letter from the engineer certifying that the
improvements were constructed in accordance with the approved plans and all applicable
sections of DCC 17.48.
• Applicant shall complete road improvements according to the approved plans and all applicable
sections of DCC 17.48. Improvements shall be constructed under the inspection of a registered
professional engineer consistent with ORS 92.097 and DCC 17.40.040. Upon completion of road
improvements, applicant shall provide a letter from the engineer certifying that the
improvements were constructed in accordance with the approved plans and all applicable
sections of DCC 17.48.
• If roads are dedicated to the public, applicant shall dedicate internal road rights of way to provide
for the minimum standard rural local road right of way width of 60 ft. pursuant to DCC 17.16.105,
17.36.040, 17.36.060, and 17.48A. Dedication shall be by plat declaration.
• All easements of record or existing rights of way shall be noted on the final plat pursuant to DCC
17.24.060(E),(F), and (H).
• The surveyor preparing the plat shall, on behalf of Applicant, submit information showing the
location of the existing roads in relationship to the rights of way to Deschutes County Road
Department. This information can be submitted on a worksheet and does not necessarily have to
be on the final plat. All existing road facilities and new road improvements are to be located
within legally established or dedicated rights of way. In no case shall a road improvement be
located outside of a dedicated road right of way. If research reveals that inadequate right of way
exists or that the existing roadway is outside of the legally established or dedicated right of way,
additional right of way will be dedicated as directed by Deschutes County Road Department to
meet the applicable requirements of DCC Title 17 or other County road standards. This condition
is pursuant to DCC 17.24.060(E),(F), and (G) and 17.24.070(E)(8).
• Applicant shall submit as -constructed improvement plans to Road Department pursuant to DCC
17.24.070(E)(1).
• Applicant shall submit plat to Road Department for approval pursuant to DCC 17.24.060(R)(2),
100, 110, and 140.
STAFF REPORT COMMENT (page 8): Most of the comments above appear to be related to DCC standards that
apply to the 14-lot residential PUD. This request is not a part of this review.
Deschutes County Senior Transportation Planner, Peter Russell (June 23, 2022)
I have reviewed the transmittal materials for 247-22-000346-ZC/438-TP/439-CU/443-PA/433-LR/434-
LR/435-LR for properties totaling approximately 83 acres to change the Comprehensive Plan designation
from Agriculture to Rural Residential Exception Area (RREA) and the zoning from Exclusive Farm Use (EFU)
to Multiple Use Agricultural (MUA-10). The properties lie in the Exclusive Farm Use (EFU), Surface Mining
7
Impact Area (SMIA), Landscape Management (LM) and Flood Plain (FP) zones and add a 14-lot Planned
Unit Development (PUD) at 19975 and 19995 Destiny Ct., aka County Assessor's Maps 17-12-07, Tax Lots
100 and 101 and 17-12-08B, Tax Lot 6201. For reasons discussed below, staff finds more information is
needed to address the Transportation Planning Rule (TPR).
Deschutes County Code (DCC) 18.116.310€(4) requires a 20-year analysis for zone changes. The
application has submitted what in essence is a trip generation memo from Transight, the applicant's traffic
engineer, that is dated Sept. 15, 2021. The memo does not have any operational analysis regarding
performance of affected intersections. Staff therefore cannot determine compliance with the TPR at
Oregon Administrative Rule (OAR) 660-012-0060 for significant effect. The applicant needs to provide
operational analysis of the affected intersections pre -zone change and post -zone change. Staff does agree
with the consultant that the difference in trip generation between EFU and MUA-10 is negligible.
Historically, staff has used single-family home as its base case for reasonable worst -case scenario for uses
in the EFU zone. The outright permitted uses are listed at DCC 18.16.020. The most recent edition of the
Institute of Traffic Engineers (ITE) Trip Generation Manual lists Single Family Detached Home (Land Use
210) has having 9.43 weekday trips. Staff has also reviewed the outright permitted uses in the MUA-10
at DCC 18.32.020 as well as the outright permitted uses listed in Oregon Revised Statute (ORS) 215.213(1)
and 215.283(1).
The property accesses Destiny Court, a public road maintained by Deschutes County, and functionally
classified as a local. The property has an access permit approved by Deschutes County (#247-SW1403)
and thus complies with the access permit requirements of DCC 17.48.210(A).
Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $4,757 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, 2022. DESCHUTES COUNTY'S SDC RATE IS
INDEXED AND RESETS EVERY JULY 1. WHEN PAYING 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, 2022, THE SDC RATE WILL INCREASE TO $5,080 PER PEAK HOUR TRIP AND LAST UNTIL
JUNE 30, 2023. AGAIN, THIS IS INFORMATIONAL ONLY AS SDCS ARE NOT ASSESSED UNTIL DEVELOPMENT
OCCURS.
STAFF REPORT COMMENT (page 9): In response to Mr. Russell's comments above, the Applicant submitted a
supplemental transportation memorandum dated August 8, 2022'.
6 Ref. 2023-09-15 E. Dickson - Destiny Transportation Analysis Response.
L
Deschutes County Senior Transportation Planner Tarik Rawlings, October 17, 2023
I have reviewed the transmittal materials for 247-23-000651-MA, 652-MA, 653-LL which modifies original
files 247-22-000436-ZC/438-TP/439-CU/443-PA/433-LR/434-LR/435-LR for properties totaling
approximately 83 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 (MUA-10). The properties lie in the Exclusive Farm Use (EFU), Surface Mining Impact Area
(SMIA), Landscape Management (LM) and Flood Plain (FP) zones and add a 14-lot Planned Unit
Development (PUD) at 19975 and 19995 Destiny Ct. recognized on County Assessor's Maps 17-12-07 as
Tax Lots 100 and 101 and 17-12-08B as Tax Lot 6201. For reasons discussed below, originally stated in
response to the initial Plan Amendment/Zone Change/Tentative Plat application, staff finds that the
additional information provided by the applicant and their traffic engineer addresses the requests made
in the County Transportation Planner's original June 23, 2022 comment.
I have reviewed Mr. Bessman's August 8, 2023, Site Traffic Report/TPR Analysis related to the subject
application and I agree with the assumptions, methodology, and conclusions contained therein. As Mr.
Bessman utilizes the 2040 planning horizon year (reflective of the most recent data included in the
County's forthcoming Transportation System Plan update) this analysis appears to comply with relevant
criteria. Mr. Bessman utilizes the acceptable road segment standard of 13,900 Average Daily Trips (ADT)
which is incorporated into the County's most recent 2020-2040 Transportation System Plan. The analysis
and references therein related to peak hour trips (16 to 22 total weekday p.m. peak hour trips) are
adequate. Staff agrees with Mr. Bessman's summary of Transportation Planning Rule (TPR) Compliance
and finds that relevant TPR provisions appear to be satisfied through the submittal of this additional
information.
The property accesses Destiny Court, a public road maintained by Deschutes County, and functionally
classified as a local. The property has an access permit approved by Deschutes County (#247-SW1403)
and thus complies with the access permit requirements of DCC 17.48.210(A).
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 EVERY JULY 1. WHEN PAYING 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 ONLY AS SDCS ARE NOT ASSESSED UNTIL DEVELOPMENT OCCURS.
Oregon Department of Land Conservation & Development, Hilary Foote
DLCD has reviewed a soil assessment as requested by Ron Cochran for QRR Properties LLC. Attached are
the soil assessment, DLCD completeness review, and DLCD application form.
In accordance with OAR 660-033-0045(6)(a), the Department of Land Conservation and Development
(DLCD) finds that this soils assessment is complete. DLCD has reviewed the soils assessment for
9
completeness only and has not assessed whether the parcels qualify as agricultural land as defined in OAR
660-033-0020(1) and 660-033-0030.
The county may make its own determination as to the accuracy and acceptability of the soils assessment.
Oregon Parks and Recreation Department, Fiona Noonan
Based on the information in this Notice of Application, tax lots 1712070000100, 1712070000101, and
1712070000200 are all within the Middle Deschutes State Scenic Waterway. To my understanding, no
structural development has been proposed here yet, but please correct me if I'm wrong. If/when the
relevant property owners wish to build or remodel any structures, remove/alter vegetation, or conduct
other similar activities, they will need to submit a Notification of Intent Application to the State Scenic
Waterway Program. If possible, please have them reach out to me directly beforehand.
The following agencies did not respond to the notice: 911, Bend Metro Parks & Recreation, Deschutes County
Assessor, Deschutes County Sheriff, Deschutes County Surveyor, Oregon Department of Agriculture — Land Use
Planning Coordinator, Oregon Department of Environmental Quality, Oregon Department of Fish & Wildlife,
Oregon Water Resources Department (Watermaster — District 11), and Swalley Irrigation District.
PUBLIC COMMENTS: The Planning Division mailed notice of the application to all property owners within 750 feet
of the Subject Property on June 3, 2022, and September 9, 2023. 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 15, 2022. Eleven (11) public comments were
received. Staff, in the Staff Report, provided the following summary of the public comments:
1. Road and traffic impacts
2. Design consistency of roads between developments
3. Damage to Northern Estates Lane during construction or development
4. Small Lot sizes
5. Lots should be at least 10 acres
6. Loss of natural habitat
7. Impacts on rural character of the area
8. Concerns the applications are incomplete
9. Need for the County to require a Road Maintenance Agreement
10. Comments in support of the PA/ZC request, but opposed to the 14-lot Planned Development
11. Need for equitable sharing of road maintenance costs
12. Concerns the applicable criteria are generally not met
13. Increased traffic impacts on O.B. Riley Road
14. Desire for a "peaceful wilderness environment" near Tumalo State Park
15. Spatial restrictions/5-acre minimum lot sizes associated with the LM Combining Zone
16. Open space acreage requirements
17. Cluster Development standards not being met
18. Lot of Record issues
19. Need for Goal 14 Exception
20. Establishment of "neighborhood -style subdivision housing" outside of the UGB
21. Need for fire gates between the proposed subdivision and Pacific Cascade Heights to reduce road
maintenance, trespassing, vagrants, houseless, camping, speed contests, etc.
STAFF REPORT COMMENT (page 12): Most of the comments above appear to apply standards that will be
evaluated during the review of the 14-lot residential PUD. As part of the County's review of those applications,
10
staff or the hearings body will address these comments and their relevancy to the applicable standards.
Compliance with the applicable rural growth and transportation standards for a comprehensive Plan
Amendment and Zone Change are addressed below. Staff notes the Lot of Record issue has been resolved as
part of files nos. 247-22-000433-LR/247-22-000435-LR/247-23-000653-LL. The subject property is recognized
as one (1) lot of record."
The Hearings Officer concurs with the Staff characterizations and conclusions set forth in the above "Staff
Comment." The Hearings Officer addresses, in the context of findings for relevant approval criteria, concerns
related to less than 10 acres (#5 above), rural character (#7 above), application incomplete (#8 above), lot of
record (#18 above) and Goal 14 (#19 above) above in the findings for relevant approval criteria.
HEARING NOTICE: On January 19, 2024, the Planning Division mailed a Notice of Public Hearing to all property
owners within 750 feet of the Subject Property, public agencies, and parties. A Notice of Public Hearing was also
published in the Bend Bulletin on Sunday, January 21, 2024. Notice of the first evidentiary hearing was submitted
to the Department of Land Conservation and Development ("DLCD") on January 19, 2024.
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.
Ill. FINDINGS & CONCLUSIONS
A. PRELIMINARY FINDINGS
1. Purpose of the Preliminary Findings
The Hearings Officer, in these Preliminary Findings, responds to issues raised by Central Oregon LandWatch
("COLW") and the Staff. General public comments also raised one issue, also raised by COLW (Goal 14), addressed
below. These Preliminary Findings are intended to provide an overview of the COLW issues, discussion of the
relevant laws/rules related to those issues and the Hearings Officer's legal interpretation of various sections of
the DCC and State statutes/regulations relevant to the COLW issues. The Hearings Officer incorporates these
Preliminary Findings as additional findings for relevant approval criteria.
2. Scope of this Recommendation
This recommendation focuses solely upon the Applicant requests to change the comprehensive plan designation
and zone change designation for the Subject Property. For context, the Applicant initially requested approval for
a Comprehensive Plan Amendment, Zone Change, Conditional Use/Tentative Plan (14-lot residential Planned Unit
Development — PUD). Applicant removed the Conditional Use/Tentative Plan request. Approval criteria related
to the Conditional Use/Tentative Plan request are not relevant approval criteria in this case.
Applicant also modified its proposal. In summary, the modification removed from the original application areas
of the property zoned FP which reconfigured/reduced the area included in the Comprehensive Plan and Zone
Change requests. The Hearings Officer will address criteria related to Applicant's modification in the findings
below.
11
3. Overview of Issues Raised by COLW
COLW (9/14/2024 email to Staff) raised "concerns" about Staff's processing of the applications in this case. COLW
expressed multiple concerns related to Applicant's proposed site plan. These concerns related to Applicant's
initial request for conditional use/tentative plan approval. As noted in the Scope of Review section above, the
Applicant removed the Conditional Use/Tentative Plan request from consideration in this case. COLW's site plan
concerns, as expressed in its 9/14/2024 email, are not relevant to the Hearings Officer's decision in this case.
COLW, in the 9/14/2024 email, also expressed concerns related to tax lot 101; whether tax lot 101 is a lot of record
("Lot of Record Issue") and raised concerns related to the applications in this case meeting Goal 14 ("Goal 14
Issue"). The Hearings Officer addressed above, in the findings set forth in Section II. Basic Findings, Lot of Record,
COLW's Lot of Record issue.
McBeth testified at the February 27, 2024 public hearing on behalf of COLW. McBeth, during her hearing
testimony, suggested that the Planning Staff processing of the applications in this case "violated county process
and procedures." McBeth, during her hearing testimony, also argued that Statewide Planning Goals 3, 5 and 14
were applicable and that the applications did not adequately address those Goals. COLW, in an open -record
submission (March 26, 2024), expanded upon its Goal 3 and 14 arguments.
4. Oregon Statewide Planning Goal 14
COLW argued that Applicant, in this case, failed to properly address Statewide Planning Goal 14. COLW, in a
February 27, 2024 (page 4) record submission, stated the following:
"Goal 14 obligates local governments to establish urban growth boundaries that 'identify and separate
urbanizable land from rural land.' The policy of Goal 14 is to contain urbanization within acknowledged UGBs.
1000 Friends of Oregon v. LCDC, 301 Or 447, 451-452 n3, 724 P2d 268 (1986) (Curry County). Goal 14 prohibits
development that will undermine the effectiveness of an established UGB. Id. at 474.
This land is outside the Bend UGB. Deschutes County may not adopt a development pattern that conflicts with
Goal 14 and its implementing rules. Sandy v. Clackamas County, 3 LCDC 139, 149-50 (1979) ('If this
development is allowed, then there may as well not be urban growth boundaries. [This] ...is a perfect example
of how Goal 14 may, little by little, case by case, be rendered ineffective and useless in controlling urban
sprawl.').
The applicant's Burden of Proof explained:
'Applicant proposes a planned development of fourteen approximately 1.75 acre lots on the newly zoned
MUA-10 lands, grouped together and appropriately set back beyond the rimrock above the Deschutes
River on the current Tax Lot 100.'
One dwelling per 1.75 acres is an urban density. This land outside the Bend UGB cannot be developed to an
urban density without an exception to Goal 14.
In order to allow land use which any goal would prohibit, a local government must take an "exception" to that
goal. Conversion of rural land to urban uses must be supported either by compliance with the requirements of
Goal 14, or by an exception to that goal. Curry County, 301 Or at 477.
The Supreme Court has held that local governments must support any exceptions to Goal 14 by demonstrating
that it is impracticable to allow any rural uses in the exception area. Id. at 489. It is not impracticable to allow
12
any rural uses on the subject property. As explained above, the property could be used for a riding school or
other farm uses.
The integrity of the planning system depends on local governments starting from the assumption that lands
will be used in compliance with the goals, unless specific circumstances justify departure from the state policy
embodied in a particular goal.
The application does not demonstrate that it is impracticable to allow any rural uses on the subject property.
No exception to Goal 14 has been proposed, and if it were, the application would not qualify. Therefore the
application must be denied."
COLW, in a March 26, 2024 submission (pages 1— 2) stated the following:
"The policy embodied in Goal 14 is that land cannot be converted to urban uses prior to inclusion within an
acknowledged urban growth boundary. The purpose of the goal is to provide for an orderly and efficient
transition from rural to urban land use. Perkins v. City of Rajneeshpuram, 300 Or 1, 12 n. 15, 706 P2d 949
(1985).
The developer is mistaken that the density planned for the property is irrelevant. March 19, 2024 letter, p. 13.
The record shows the applicant's objective is to develop a subdivision with 1.75- acre lots. The 2022 Burden of
Proof refers to the 1.75-acre lot subdivision at pages 13, 24, 26, 32, 40, 44, 46, 47, 48, and 64. This objective is
not denied by the developer.
In the unlikely event that the applicant prevails in this proceeding while denying it plans a subdivision with
1.75-acre lots on the property, the applicant will be estopped from requesting a subdivision with 1.75-acre or
similar lots on the property in the future. Moreover such denial would raise the issue of candor toward the
tribunal.
The decision in this case must be based on evidence in the record. The record shows the applicant's intent is a
subdivision with small lot sizes at an urban density. Urban land uses in Oregon are restricted to lands inside an
urban growth boundary. The applicant has not met its burden of showing compliance with Goal 14."
The Hearings Officer finds that COLW raised a number of Goal 14 issues that must be addressed in this section of
the Preliminary Findings. The Hearings Officer concurs with COLW that consideration of Goal 14, in this case, is
relevant. 1000 Friends of Oregon v. Josephine County, LUBA No. 2023-022 (2023) citing Hess v. City of Portland, 23
OR LUBA 343, 345 (1992). The Hearings Officer also notes that LUBA, in the 1000 Friends of Oregon v. Josephine
County opinion, stated that
"a petitioner who alleges that a decision violates Goal 14 by allowing conversion of rural land to urban uses
must explain what urban use the decision allows." citing Wood v. Crook County, 55 Or LUBA 165, 176-77 (2007)
The Hearings Officer interprets COLW's above -quoted statements as asserting that the application in this case
violates Goal 14 by (1) proposing a lot size of 1.75 acres (or, per Applicant's final argument 1.7 acres), (2) failing
to request a Goal 14 exception, (3), if an exception to Goal 14 was requested by Applicant it must demonstrate
that it is impracticable to allow any rural uses in the exception area and (4) undermining the effectiveness of an
established UGB. The Hearings Officer addresses these concerns in the findings below.
The first COLW Goal 14 issue relates to the possibility of Applicant utilizing a planned development type approach
to develop the Subject Property. This possibility resulted in an application by the Applicant for conditional use
and tentative plan approval for a 14-lot residential planned development. The conditional use/tentative plan
13
applications are not part of this case; this recommendation is limited to addressing approval criteria relevant to
the comprehensive Plan Amendment and Zone Change applications. As such the Hearings Officer cannot consider
specific lot sizes proposed in separate applications.
The Applicant seeks to change the comprehensive plan map designation from Agricultural ("AG") to Rural
Residential Exception Area ("RREA") and the zoning map from Exclusive Farm Use ("EFU") to Multiple Use
Agricultural (MUA"). The Hearings Officer takes official notice that the current Deschutes County Comprehensive
Plan ("DCCP") has been acknowledged by the Oregon Department of Land Conservation and Development
("DLCD"). The Hearings Officer finds that DLCD's acknowledgment is properly interpreted to mean that the
current Deschutes County Comprehensive Plan met/satisfied all relevant Statewide Planning Goals including Goal
14.'
The Hearings Officer finds COLW did not argue that the comprehensive plan RREA designation or the zoning MUA
zoning designation, per se, conflict with Goal 14. If COLW believes it did make such argument then the Hearings
Officer finds that COLW argument was not sufficiently developed to allow the Hearings Officer to authoritatively
respond.
The Hearings Officer finds that the MUA zoning (DCC 18.32.040 A) provides for various development alternatives.
The Hearings Officer finds that each of the MUA alternative development alternative complies with Goal 14.
Therefore, the Hearings Officer finds all allowed densities provided for in DCC 18.32.040 A comply with Goal 14.
The Hearings Officer finds no Goal 14 exception is required for an application seeking a development alternative
allowed by DCC 18.32.040 A.
The Hearings Officer finds Applicant did not seek an exception to Goal 14. The Hearings Officer finds it would be
speculative and impermissible to, as part of this recommendation, to assess the likelihood of approval of a Goal
14 exception.
COLW argued (February 27, 2024, page 5) that the Oregon Supreme Court, in 1000 Friends of Oregon v. Land
Conservation and Development Commission (Curry County) 310 Or 447 @ 489 (1986) must demonstrate "that it is
impracticable to allow any rural uses in the exception area." [emphasis added by Hearings Officer]
The Hearings Officer finds that the COLW "impracticable" argument is not sufficiently described to allow the
Hearings Officer, or a participant in this case, to authoritatively respond. Also, the Hearings Officer finds that
there is no evidence in the record that the Subject Property is in an "exception area" and therefore COLW's Curry
reference to "exception area" is either inappropriate or misleading. In the alternative, the Hearings Officer
responds to COLW's "impracticable" argument by finding that the proposed RREA and MUA designations are rural
uses (not urban uses); therefore, the Applicant's proposal in fact involves rural uses.
The last COLW argument (as summarized by the Hearings Officer above) suggests that approval of the proposals
in this case should be denied because they "undermine the UGB." The Hearings Officer finds that this COLW
argument is not sufficiently developed to allow the Hearings Officer, or any participant in this case, to
authoritatively respond.
Additionally, the Hearings Officer finds that the purpose of the requested MUA zone is
' Central Oregon Land Watch v. Deschutes County, LUBA 2023-006 (2023) (hereafter referred to as the "710 Properties Decision"): "The
DCCP provides that the RREA comprehensive plan designation is implemented by the RR-10 and Multiple Use Agriculture (MUA) zones. We
have no reason to believe that DLCD's acknowledgment of the 2015 amendments as consistent with Goal 14 was premised on anything
other than the conclusion that the RREA plan designation facially does not allow urban uses of rural land... We similarly conclude that the
board of commissioners did not err in relying on DLCD's acknowledgment of the 2016 amendments to conclude that the RR-10 zone facially
complies with Goal 14."
14
"to preserve the rural character of various areas of the County while permitting development consistent with
that character."
The MUA zone also is intended to "provide for an orderly and efficient transition from rural to urban land use."
(See DCC 18.32.010). The Hearings Officer finds, based upon this quoted language, is properly interpreted to mean
that the MUA zone allows (current) rural uses in anticipation of (future) urban uses; a transitional zone.
The Hearings Officer takes note that the Subject Property is relatively close to the City of Bend UGB. However,
that fact does not imply that a MUA level development of the Subject Property is somehow an urban use.
Developing the Subject Property, consistent with the MUA zoning requirements, will result in a rural use and not
an urban use.
Applicant, in its May 27, 2022 Burden of Proof, March 19, 2024 open -record submission and April 2, 2024 final
argument set forth evidence and argument related to the so-called Curry/Shaffer urban versus rural determination
factors. The Hearings Officer adopts those Goal 14 related Applicant comments as additional findings for this
Preliminary Finding. The Hearings Officer finds the Curry/Shaffer factors are satisfied in this case and that the RREA
plan designation and MUA zone allow rural and not urban uses. Further, the Hearings Officer reiterates that LUBA,
in the 710 Properties Case (Central Oregon Land Watch v. 1000 Friends of Oregon, LUBA 2023-006) clearly stated
that the Deschutes County RREA plan designation and MUA zone designation, as acknowledged by DLCD, are rural
designations and a site -specific Curry/Shaffer analysis is not necessary.
In conclusion, the Hearings Officer finds COLW's Goal 14 legal arguments are not persuasive.
Oregon Statewide Planning Goal 3
Staff (Staff Report, pages 39 to 49) addressed various aspects of Goal 3 in the context of the evidence in the record
for this case. Staff requested the Hearings Officer to address a number of Goal 3 issues. COLW raised Goal 3
issues in record submissions (February 27, 2024 and March 26, 2024) and in testimony offered at the public
hearing.
a. Past Use of Subject Property
COLW (February 27, 2024, page 2) stated the following:
"The applicant's materials indicate the property has been used for the raising of irrigated crops, a farm use.
Thus the property meets the definition of 'agricultural land.' It is impossible to find that land that has already
been in farm use cannot be put to farm use."
COLW proffered the "past farming" argument in the past. Central Oregon LandWatch v. Deschutes County, LUBA
No. 2023-049 (hereafter the "Marken Decision"). COLW, in the Marken Decision, argued that there was evidence
in the record that the property in that case was used (2005 to 2023) for growing hay and other crops which the
owner received income. LUBA, in the Marken Decision, concluded:
"We agree with intervenor that petitioner has not established that photographic evidence of crops growing
on a property is conclusive evidence that a property is 'suitable for farm use/ given that the definition of
farm use includes farm activities undertaken for the primary purpose of obtaining a profit/ where other
evidence demonstrates that growing crops did not generate a profit. OAR 660-033-0020(1)(a)(8), ORS
215.203(2)(a)."
15
The Hearings Officer rejects COLW's argument that evidence of past farming practices on a property conclusively
determines that a property is "agricultural land" under relevant Oregon law. The Hearings Officer, consistent with
the Marken Decision finds that the Hearings Officer should consider past farming of the Subject Property in the
context of all evidence contained in the record.
b. Irrigation Rights
COLW (March 26, 2024, page 3) asserted that the Subject Property has irrigation rights and those rights have been
used in the past for crop production. COLW concluded that the existence and use of irrigation water rights
constitutes "irrefutable evidence that the land can be put to farm use for the production of irrigated crops." The
Hearings Officer, for the reasons stated above in the "past farming" findings, disagrees with this COLW argument.
The Hearings Officer finds that the existence of irrigation rights and the past use of those irrigation rights for crop
production must be considered in the context of all evidence contained in the record.
Profitability
COLW (March 26, 2024, page 3) provided the following statement related to "profitability":
"The applicant misinterprets the applicable law in arguing that profitability in its March 19, 2024 letter. Profit
is not a consideration in the definition of agricultural land use in Deschutes County. DCC 18.04.030 (land put
to the listed farm uses meets the definition of agricultural use 'whether for profit or not.')"
DCC 18.04.030 defines "agricultural land" as follows:
"... lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominately Class I -VI soils,
and other lands in different soil classes which are suitable for farm use, taking into consideration soil fertility,
suitability for grazing and cropping, 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. Lands in other classes which are necessary to permit form practices to be undertaken on adjacent or
nearby lands shall be included as agricultural lands in any event."'
The Hearings Officer agrees with COLW that the word "profit" is not included in the above -quoted definition.
However, this section of the DCC is essentially the same as OAR 660-033-0020(1); COLW references OAR 660-033-
0020(1) in its February 27, 2024 record submission in the context of Goal 3.
The standard analysis of Goal 3 starts with the text of Goal 3 and OAR 660-033-0030 and then references OAR
660-033-0020(1)(A). DCC 18.04.030 (definition of "agricultural land") and OAR 660-033-0020 (1)(A) both
reference "accepted farming practices" which has consistently been interpreted to incorporate the definition of
"farm use" found in ORS 215.203(2)(a). See Marken Decision and 710 Properties Decision.8
LUBA has consistently considered profitability in the context of ORS 215.203 and OAR 660-033-0020. What weight
to be given to profitability, on the other hand, has been the subject of significant debate. The Hearings Officer
disagrees with COLW's statement that profitability is not a factor to be considered in determining whether the
Subject Property is, or is not, agricultural land.'
8 Central Oregon LondWatch v. 1000 Friends of Oregon, LUBA Nos. 2023-006, & 2023-009 (2023) (the 710 Properties LUBA Decision stated
"...OAR 660-033-0020(1)(a)(B) defines "agricultural land" to include land that is 'suitable for farm use' based on a number of factors, and
ORS 215.203(2)(a) defines 'farm use' to include farm activities that are undertaken 'for the primary purpose of obtaining a profit in money.'
9 See DCC 18.04.030 definition of "Farm Use" does include the word "profit."
16
d. Multiple (Alternative) Farm Uses
COLW suggests that multiple farm uses should, and perhaps must, be considered when determining whether the
Subject Property is "agricultural land." COLW referenced uses such as poultry, grapes, goats, honeybees, training
of equines and riding lessons as examples of alternative farm uses. The Hearings Officer conceptually agrees that
considering multiple farm related uses, such as suggested by COLW, may be appropriate on one or more
properties in Deschutes County. The Hearings Officer notes that any alternative use must be considered in the
context of the DCC 18.04.030 and OAR 660-033-0020(1)(a)(B) factors. The Hearings Officer finds that mere
speculation of possible alternative uses in not sufficient to, standing alone, demonstrate that the Subject Property
is "agricultural land."
The Hearings Officer discusses the "multiple (alternative) farm uses" issue, in greater detail, in the findings for
OAR 660-033-030.
e. Open Space
COLW provided the following comments (March 3, 2024, page 3) related to "open space" and "agricultural land:"
"The definition of agricultural land in Oregon is purposefully broad to meet the objectives of the states
agricultural land use policy. ORS 215.243. While the legislature protects farmland primarily to protect
Oregon's agricultural sector, it has also declared that open space protected for agricultural use is 'an important
physical, social aesthetic and economic asset to all of the people of the state.' ORS 215.243(1)"
The Hearings Officer finds that COLW failed to describe its "open space" argument with sufficient specificity as to
allow the Hearings Officer, or any participant, the ability to meaningfully respond.
Modification of Application
COLW, through hearing testimony of McBeth, suggested that Applicant's Modification application and the
County's handling of that application was somehow improper. The Hearings Officer reviewed McBeth's testimony
and concludes that COLW failed to identify any specific legal problem with the modification process. The Hearings
Officer finds COLW's modification argument was not presented with sufficient legal or factual specificity to allow
the Hearings Officer, or any participant, the ability to authoritatively respond. COLW did not provide relevant law,
code or relevant approval criteria potentially offended by Applicant's Modification proposal or the County's
response to such application.
In the alternative, the Hearings Officer adopts as findings for this recommendation, Applicant's comments
contained in its March 19, 2024 record submission (pages 1 — 3, section titled "Application Compliance with
Modification Law")
710 Properties Decision
Staff (Staff Report, pages 41 — 44) expressed concern about issues raised and decided in the 710 Properties
Decision. Staff provided the following comments:
"—since the subject request was received, LUBA remanded a locally approved Plan Amendment and Zone
Change request back to Deschutes County for failing to fully address the requirements under OAR 660-033-
0020(1)(a)(B) and OAR 660-033-0020(1)(a)(C).
17
LUBA reached the following conclusions in their Final Opinion and Order for Central Oregon Landwatch et al v.
Deschutes County (LUBA Nos. 2023-00612023-07, July 28, 2023)10:
'[T]he Board of commissioners erroneously concluded (1) that it need not consider whether forage grown
on -site can be supplemented by feed imported from off -site, (2) that land is suitable for the construction
and maintenance of equipment and facilities used for farm activities only if those farm activities occur on
the some land, and (3) that it need not consider nearby or adjacent land at all.
On Remand, the board of commissioners must consider the ability to use the subject property for farm use
in conjunction with other property, including the Keystone property, and may not limit its review to the
profitability of farm use of the subject property as an isolated unit. The board of commissioners must
consider the ability to import feed for animals and may not limit its consideration to the raising of animals
where adequate food may be grown on the subject property. The board of commissioners must also
consider whether the subject property is suitable for farm use as a site for construction and maintenance
of farm equipment. Furthermore, the board of commissioners must consider the evidence and adopt
findings addressing the impacts of redesignation of the property related to water, wastewater, and traffic
and whether retaining the property's agricultural designation is necessary to permit farm practices on
adjacent or nearby lands.'
Staff asks the Hearings Officer to determine if the Applicant has sufficiently addressed the requirements of
OAR 660-033-0020(1)(a)(B) and make detailed findings on this issue."
The Hearings Officer finds LUBA was clear, in the 710 Properties Decision, that it is necessary and integral, when
assessing whether a property is "agricultural land," to consider nearby and adjacent lands. Restated, LUBA clearly
held that limiting analysis solely to the property subject to a plan amendment/zone change application is not
appropriate. Less clear to this Hearings Officer is "how" such consideration of the various LUBA identified factors
are to be analyzed.
LUBA, in the 710 Properties Decision, addressed "source of feed," "on -site construction and maintenance of
equipment and facilities," and "necessity of retaining the current Subject Property planning/zoning designations
to permit farm practices on adjacent or nearby lands" as factors to be considered in the context of "nearby and/or
adjacent" properties. The Hearings Officer finds the "source of feed" and "on -site construction and maintenance
of equipment and facilities" are best analyzed in the context of the OAR 660-033-0020 evaluation factors
(discussed above and later in relevant Goal 3 findings) and what use(s) is/are made of nearby and adjacent land
parcels. The Hearings Officer finds the necessity of retaining the current planning/zoning designation analysis
should also focus on the use characteristics of the nearby/adjacent properties and the transportation connections
between the Subject Property and the nearby/adjacent properties. Finally, the Hearings Officer finds that all of
the 710 Properties Decision issues discussed above should be considered in the context of whether a reasonable
farmer would have an expectation of obtaining a profit in money from growing crops or engaging in some other
farm use on the Subject Property.
10 The Oregon Court of Appeals has affirmed LUBA's Final Order and Opinion and at this time it is unknown if a Petition for Judicial
Review has been filed to the Oregon Supreme Court. [this footnote is part of the above -quoted Staff Report comments]
18
Title 18, Deschutes County Zoning Ordinance
Chapter 18.136, Amendments
Section 18.136.010, Amendments
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or legislative map
changes shall be as set forth in DCC 22.12. A request by a property owner for a quasi-judicial map
amendment shall be accomplished by filing an application on forms provided by the Planning
Department and shall be subject to applicable procedures of DCC Title 22.
FINDING: The Applicant requested a quasi-judicial Plan Amendment and filed the applications for a Plan
Amendment and Zone Change. The Applicant filed the required Planning Division's land use application forms for
the proposal. The application will be reviewed utilizing the applicable procedures contained in Title 22 of the DCC.
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 DCCP's introductory statement explains land use must comply with the statewide planning system
and sets out the legal framework set by State law. It also summarizes the Statewide Planning Goals and explains
the process the County used to adopt the current DCCP. Prior Deschutes County quasi-judicial zoning approvals,
some of which have been affirmed by LUBA and other appellate courts11, have found that the introductory
statement of the Comprehensive Plan is aspirational in nature and not necessarily approval criteria and it is
appropriate to only respond to the DCCP goals that apply to a particular request.
The Applicant identified applicable DCCP provisions on pages 10-15 of their Burden of Proof. Staff (Staff Report,
page 13) requested that the Hearings Officer consider, in greater depth, DCCP provisions related to protected Goal
5. The Hearings Officer addresses conformance with the DCCP and consistency with the applicable DCCP
provisions in the Preliminary Findings and in subsequent findings for this recommendation.
B. That the change in classification for the subject property is consistent with the purpose and
intent of the proposed zone classification.
FINDING: The Applicant provided the following response to this provision (Burden of Proof, pages 15 — 16):
"The proposed zone change from EFU to MUA-10 is consistent with the purpose and intent of the MUA
zone classification. Per DCC 18.60, the stated purposes of the MUA-10 zone are:
'The purposes of the Multiple Use Agricultural Zone is to preserve the rural character of various
areas of the County while permitting development consistent with that character and with the
capacity of the natural resources of the area to preserve and maintain agricultural lands not sited
to full-time commercial farming for diversified or part-time agricultural uses, to conserve forest
Central Oregon Landwatch v. Deschutes County, 75 Or LUBA 441 (Aceti II), aff'd, 288 Or App 378, 405 P3d 197 (2017), Central
Oregon Landwatch v. Deschutes County, 79 Or LUBA 253 (Aceti III), aff'd, 298 Or App 375, 449 P3d 534 (2019), Central Oregon
Londwatch v. Deschutes County, Or LUBA _ (LUBA No 2021-028, June 18, 2021) (Aceti IV), aff'd, 315 Or App 673, 501 P3d 1121
(2021), and Central Oregon Landwatch v. Deschutes County, (LUBA No 2022-075, December 6, 2022) (Aceti V).
19
lands for forest uses, to conserve open spaces and protect natural and scenic resources; to
maintain and improve the quality of the air, water and land resources of the County, to establish
standards and procedures for the use of those lands designated unsuitable for intense
development by the Comprehensive Plan, and to provide for an orderly and efficient transition
from rural to urban land use.'
The MUA-10 zone is the optimal county zone to transition the Subject Property to a rural residential use.
As detailed above and incorporated herein by reference, the subject property is not suited for agricultural
use. This property is more appropriately zoned MUA-10. The Subject Property is currently zoned Exclusive
Farm Use (EFU) likely due to general classification as undeveloped, rather than consideration of the
agricultural capability of the land. The Property has never been successfully used for farming or pasture,
despite repeated attempts over many years. Agricultural uses are also not practical or compatible with the
existing residential uses surrounding the similar property, already zoned MUA-10.
This Comprehensive Plan Map and Zoning Map Amendment request will resolve the incorrect classification
of the subject properties. Because most surrounding properties are used as MUA-10 properties, there is an
incompatibility between the presently zoned EFU permitted uses and the adjacent, surrounding lands
developed or committed for urban and residential uses. The requested Comprehensive Plan Map and
Zoning Map amendments will result in a zoning assignment that is compatible with neighboring properties
and the realities of the site, rather than the current EFU zoning, which poses potential conflict with
established residential uses.
Rezoning of the Subject Property from EFU to MUA-10 will resolve the latent conflict between EFU
permitted uses and the immediately adjacent rural residential uses. Furthermore, the Comprehensive Plan
Map and Zone Map change will serve the interests of the northwest Bend residents, surrounding
neighborhoods, and public investments in public facilities and services. This development will allow
infrastructure to go "to and through" the subject property, connecting the development to the south with
Destiny Court, giving better connectivity to the neighborhood, rather than a series of dead -ends and
inaccessible lots.
The requested Rural Residential Comprehensive Plan Map designation is also sought at this time promote
a logical transition for inclusion in a future expansion of the Bend UGB and/or in the designation of urban
reserves. This request to re -designate and re -assign the Comprehensive Plan and Zoning Maps from
Agriculture to Rural Residential and MUA-10, respectively, will allow this site to be developed in a
transitional use.
The requested MUA-10 zone emphasizes the conservation of open spaces and the protection of natural
and scenic resources. While the subject property is not suitable for agriculture, it does represent a
significant planned open space area. The MUA-10 zone will encourage that preservation and protection
while also maintaining consistency with the MUA-10lands in the vicinity.
By allowing for single family dwellings as an outright permitted use (DCC 18.32.020(8)), the MUA-10 zone
recognizes that rural lands may sometimes be better suited for residential use than agricultural uses,
depending on their resource value. Other non -resource land uses are conditionally permitted; any
nonresource land development proposal on the property other than a single family dwelling would not be
allowed unless it was found to be consistent with the surrounding properties and the applicable conditional
use evaluation standards. Therefore, the proposed change in zoning is consistent with the intent and
purpose of the MUA-10 zone, and will be compatible with surrounding properties."
RIJ
The Hearings Officer finds the Applicant's above -quoted statements are credible and adequately address this
provision. The Hearings Officer finds the Applicant demonstrated the change in classification is consistent with
the purpose and intent of the MUA Zone.
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 Applicant provided the following response related to this provision (Burden of Proof, page 16):
"The proposed change from EFU will not require the extension of new public services to the subject
property, other than expansion of the existing road system in the area. The site is already adjacent to
urban infrastructure (Destiny Court and Northern Estates Lane). The site will be served by Avian Water Co.
and on -site septic systems, accommodated by planned patterns of development. Thus, public facilities are
available and can be efficiently provided to the site.
There are no known deficiencies in public services or facilities that would negatively impact public health,
safety, or welfare. Development of the property under MUA-10 zoning would need to comply with
applicable requirements of the DCC, including land use permits, building permits, and sewage disposal
permit processes. Through these development review processes, assurance of adequate public services
and facilities will be verified."
The Applicant also provided the following response as part of their modification application (Applicant's Second
Supplemental Submittal, page 10):
"Public Facilities and Services demand will still be able to accommodate the proposal's impacts, including
Bend's high school systems which added Caldera High School in the fall of 2021."
The Subject Property is located in the Bend Rural Fire Protection District, Bend La Pine School District, and police
services are provided by the Deschutes County Sheriff's Office. Adjacent and nearby properties to the north, east,
and south contain dwellings. These properties are served by Avion Water Company or onsite wells, onsite sewage
disposal systems, electrical service, telephone service, and the regional public service providers noted above. No
issues have been identified in the record regarding service provision to the surrounding area. The southeast
corner of the Subject Property is located +/-2,000 feet from the City of Bend's UGB.
The Hearings Officer finds that the close proximity to urban development will likely result in efficiency of providing
necessary public services. The application materials include will -serve letters indicating electrical service and
water service are available to the subject property. There are no known deficiencies in public services or facilities
that would negatively impact public health, safety, or welfare. Prior to development of the Subject Property, the
Applicant will be required to comply with the applicable requirements of the DCC, including approval of required
land use, building, and onsite wastewater disposal permits. Through the review of these development permits,
assurance of adequate public services and facilities will be verified. The Hearings Officer finds this provision is met.
2. The impacts on surrounding land use will be consistent with the specific goals and
policies contained within the Comprehensive Plan.
FINDING: The Applicant provided the following response related to this provision (Burden of Proof, pages 16-17):
"The relevant goals of the Comprehensive Plan are implemented through the MUA-10 purpose statement
in the zoning ordinance, as set forth above. The zone is unique in that it serves as a transition between EFU
lands with productive soils and other rural lands that are "not suited to full time commercial farming" and
are more appropriately suited for "diversified or part time agricultural uses." The MUA-10 zone retains
consistency with EFU lands by allowing a limited array of rural uses and mandating a 10-acre minimum lot
size (except in planned developments, in which the smaller lot sizes are offset by the 65% open space
requirement). There are only a limited number of uses allowed in the MUA-10 zone that are not also
allowed in the EFU zone. Further, the majority of the different non -resource land uses in the MUA-10 zone
are conditional, thereby ensuring that potential impacts on surrounding land uses will be further reviewed
by the County during each site specific land use application.
In summary, the MUA-10 zone remains a rural zone devoted to a mix of part-time agricultural and
residential uses. This minimizes potential impacts on surrounding lands. The MUA-10 zoning would
emphasize the continued protection of the open space and wildlife values of the property with the planned
development design proposed, which distances homesites from the river's rim as well as surrounding uses."
In addition to the above -quoted comments, the Applicant provided specific findings for specific goals and policies
contained within the DCCP, which are addressed below. DCCP goals and policies related to protected Goal 5
resources are addressed in the Preliminary Findings and relevant approval criteria later in this recommendation.
Based upon the Preliminary Findings and subsequent findings related to Goal 5 the Hearings Officer finds that the
Applicant demonstrated the impacts on surrounding land use will be consistent with all the relevant goals and
policies contained within the DCCP.
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 Applicant proposed to rezone the Subject Property from EFU to MUA. The Applicant provided the
following response to this provision (Burden of Proof, page 17):
"Circumstances have changed since the zoning of the property. When the property was first given an EFU
zoning assignment, it was in the early days of Oregon zoning, approximately half a century ago. Much of
our undeveloped and unirrigated lands were zoned EFU, for lack of a better zone or label, even though
these parcels were dry and not formable. If they weren't forest or already developed in a denser pattern,
they were zoned farm by default. This property was zoned without detailed or site specific consideration
given to its soil, geologic, and topographic characteristics. Now that a certified soils scientist has conducted
a detailed Soils Investigation (See Exhibit 3), it is documented that the parcels do not qualify as farmland.
The change in circumstance is the soil study. It also evidences a mistake of sorts in classifying poor soil as
farmland.
In summary, the County's zoning of agricultural lands has been a process of refinement since the 1970s.
The Subject Property has never been suitable for agriculture and has never been actively farmed
successfully due to its poor soil. Although it was assigned EFU zoning, this property likely should not have
been originally zoned EFU due to its location, soils, and geology. Therefore, the parcels should be rezoned
to MUA-10, consistent with the zoning of adjacent rural -residential uses. The MUA-10 zoning assignment
supports logical, compatible, and efficient use of the land."
The Hearings Officer finds that the Applicant demonstrated there has been a change in circumstances since the
property was zoned to warrant rezoning the Subject Property from EFU to MUA.
Title 22, Deschutes County Development 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 filed a Modification on September 1, 2023, which was 462 days following the
submittal of the original applications and prior to the close of the record. Compliance with the remaining
requirements of DCC 22.20.052 is addressed below.
The Hearings Officer incorporates, as additional findings for DCC 22.20.055 A, B, C and D, the Applicant's
comments contained in its March 19, 2024 record submission (pages 1-3). The Hearings Officer also incorporates
the Preliminary Findings (III.A.3 - Overview of Issues) as additional findings for DCC 22.20.055 B, C and D.
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 applied for a Modification, paid all required modification fees, and agreed in writing to
restart the 150-day time clock as of the date the Modification was submitted. The Plan Amendment and Zone
Change are not subject to the 150-day clock. The Hearings Officer finds this criterion is met.
C. The Planning Director or Hearings Body may require that the application be re -noticed and
additional hearings be held.
FINDING: Notice of the Modification was mailed to all parties on September 8, 2023. The initial hearing was held
on February 27, 2024. The Hearings Officer finds that no additional hearings are necessary beyond what is required
for a Plan Amendment and Zone Change request pursuant to DCC Title 22.
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: The initial hearing occurred on February 27, 2024. The Planning Director determined the Applicant's
submittal constitutes a modification. DCC 22.04.020 establishes the following definition:
"Modification of application" means the applicant's submittal of new information after an application
has been deemed complete and prior to the close of the record on a pending application that would
modify a development proposal by changing one or more of the following previously described
components: proposed uses, operating characteristics, intensity, scale, site lay out (including but not
limited to changes in setbacks, access points, building design, size or orientation, parking, traffic or
23
pedestrian circulation plans), or landscaping in a manner that requires the application of new criteria
to the proposal or that would require the findings of fact to be changed. It does not mean an applicant's
submission of new evidence that merely clarifies or supports the pending application.
The Hearings Officer incorporates the Preliminary Findings (III.A.3 - Overview of Issues) related to COLW's
concern related to Applicant's Modification as additional findings for this section. The Hearings Officer takes note
of Applicant's open -record submission (Dickson, March 19, 2024, pages 1-3). The Hearings Officer finds Applicant's
open -record submission is credible and correctly characterizes Applicant's Modification actions in the context of
relevant County law (DCC 20.20).
The Modification changes the site lay out in a manner that would require the findings of fact to be
changed. The Modification removed the FP Zoned areas of the property and reconfigured/reduced the area
included in the subject Plan Amendment and Zone Change request, which requires the findings of fact to be
changed. To the extent a party wishes to challenge the County's decision to require a modification of application,
it is appealable only to LUBA and shall be appealable only after a final decision is entered by the County on an
application.
The Hearings Officer finds Applicant's Modification proposal met/satisfied relevant County law.
Deschutes County Comprehensive Plan ("DCCP")
Chapter 2, Resource Management
Section 2.2. Agricultural Lands
Goal 1, Preserve and maintain agricultural lands and the agricultural industry.
FINDING: The Applicant provided the following response to this provision (Burden of Proof, page 11):
"As discussed below, the Applicant's soil study, NRCS soil data, and the submitted burden of proof
effectively demonstrate that the subject property is not suitable for designation as Agriculture in the
Comprehensive Plan. It does not contain the soils required for agricultural use. See Soil Study attached as
Exhibit 3. These properties are not "agricultural" as defined by state statute and administrative rules. They
are properly rezoned to exception land in accordance with their character."
The Applicant submitted into the record (Exhibit 24) a copy of the DLCD Soil Assessment Completeness Review,
deeming said analysis complete. Applicant also provided supplementary evidence (March 19, 2024) and argument
(April 2, 2024) addressing this section. The Hearings Officer finds the Applicant's Burden of Proof, March 19, 2024
evidentiary submission, and April 2, 2024 final argument are credible and persuasive with respect to this Goal.
The Hearings Officer also incorporates, as additional findings for this section, Preliminary Findings for Goal 3
(III.A.5. — Oregon Statewide Planning Goal 3) and the Goal 3 findings set forth later in this recommendation. The
Hearings Officer finds nothing in the record to dispute the Applicant's evidence and legal conclusions that soils
are predominantly Class VII and Vill.
The Hearings Officer finds, based upon the evidence in the record and the incorporated findings that the Subject
Property is not "agricultural land." The Hearings Officer also finds, based upon the record and incorporated
findings, that approval of the requested Plan Amendment and Zone Change will not negatively impact the
agricultural industry.
24
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 is not seeking to amend the subzone that applies to the Subject Property; rather, the
Applicant requests a change under Policy 2.2.3 and has provided evidence to support rezoning the Subject
Property to MUA.
Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including for those that
qualify as non -resource land, for individual EFU parcels as allowed by State Statute, Oregon
Administrative Rules and this Comprehensive Plan.
FINDING: The Hearings Officer incorporates the Preliminary Findings related to Goal 3 (III.A.S — Oregon Statewide
Planning Goal 3) and the findings set forth later in this recommendation related to Goal 3 (including, Goal 2, Land
Use Planning, PART I — PLANNING, EXCEPTIONS, PART III -- USE OF GUIDELINES, Goal 3, Agricultural Lands and
Division 33 - Goal 3 - Agricultural Lands and OAR 660-015-0000) as additional findings for this policy.
Applicant requested approval of a Plan Amendment and Zone Change to re -designate the property from AG to
RREA and rezone the property from EFU to MUA. The Applicant does 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 related to this Policy (Burden of Proof, page 11):
"The Applicant has applied for a Zone Change to rezone Tax Lots 100 and 101 from EFU(TRB) to MUA-10.
The Applicant has also applied for a Plan Amendment to support this Zone Change, which would designate
the approximately 69 acres as Rural Residential rather than Agricultural. Rather than pursuing on
exception to Goal 3, which would ordinarily be the method of effectuating such a change, the Applicant
has attempted 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). Neither of the tax lots are in farm
production of any type and are unirrigated. It should be noted that farm production has been repeatedly
attempted and has consistently failed. Now that the soil study has been performed, this result is
understandable.
The Land Use Board of Appeals (LUBA) allowed this approach in Wetherell v. Douglas County,
52 Or LUBA 677 (2006). The County Hearings Officer also accepted this method in file PA-10-5 (Rose &
Associates) and in Wetherell v. Douglas County, LUBA states at pp. 678-679:
'As we explained in DLCD v. Klamath County, 16 Or LUBA 817, 820 (1988), there are two ways a county
can justify a decision to allow nonresource use of land previously designated and zoned for farm use
or forest uses. One is to take an exception to Goal 3 (Agricultural Lands) and Goal (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).'
The facts pertinent to the subject application are sufficiently similar to those in PA-10-5 to allow the
Applicant to attempt to show that the subject property is not agricultural land, rather than seeking an
exception to Goal 3 under state law. This criterion is satisfied."
25
Additionally, the Applicant submitted the following as part of their Incomplete Letter Response titled
Supplemental Submittal dated November 23, 2022:
"The Applicant has applied for a Zone Change to rezone Tax Lots 100 and 101 from EFU(TRB) to MUA-10.
The Applicant has also applied for a Plan Amendment to support this Zone Change, which would designate
the approximately 69 acres as Rural Residential rather than Agricultural.
Applicant submits to the record with this submittal a copy of the DLCD Soil Assessment Completeness
Review, deeming said analysis complete, as Exhibit 24. Applicant submits to the record with this submittal
an Affidavit by Mr. and Mrs. Ferguson attesting to their attempts to farm the subject property of the PA/ZC,
and their failure to succeed. This is submitted as Exhibit 25."
Staff agreed (Staff Report, page 21) that the evidence and argument presented by the Applicant in their Burden
of Proof are similar to those in the Wetherell decisions and in the aforementioned Deschutes County Plan
Amendment and Zone Change decision. Based upon the Applicant's Burden of Proof (quoted above),
supplemental discussion (quoted above), the Preliminary Findings for Goal 3 and the findings later in this
recommendation related to Goal 3, the Hearings Officer finds that the Applicant has adequately demonstrated
that the Subject Property is not "agricultural land" and does not require an exception to Goal 3 under state law.
Policy 2.2.4 Develop comprehensive policy criteria and code to provide clarity on when and how
EFU parcels can be converted to other designations.
FINDING: The Applicant provided the following response to this Policy (Burden of Proof, page 12):
"This provides direction to Deschutes County to develop new policies to provide clarity when EFU parcels
can be converted to other designations. In the findings for the previous Plan Amendment and Zone Change
for the subject property, the County found that this policy does not impose a moratorium on requests for
applications of this type, and that nothing in this policy prohibits the conversion of EFU parcels to other
designations (see PA-1 1-7, also 247-16-000318-PA, PA-10-5, PA-07-1). Previous determinations and the
proposal are consistent with this policy."
The Hearings Officer concurs with the Applicant's analysis of prior decisions by the County and finds the requested
Plan Amendment and Zone Change proposal is consistent with this policy.
Goal 3, Ensure Exclusive Farm Use policies, classifications and codes are consistent with local and
emerging agricultural conditions and markets.
Policy 2.2.131dentify and retain accurately designated agricultural lands.
FINDING: The Hearings Officer incorporates the Preliminary Findings related to Goal 3 (III.A.5 — Oregon Statewide
Planning Goal 3) and the findings set forth later in this recommendation related to Goal 3 (including, Goal 2, Land
Use Planning, PART I — PLANNING, EXCEPTIONS, PART III -- USE OF GUIDELINES, Goal 3, Agricultural Lands and
Division 33 - Goal 3 - Agricultural Lands and OAR 660-015-0000) as additional findings for this policy.
This DCCP policy requires the County to identify and retain agricultural lands that are accurately designated. The
Applicant argued the Subject Property was not accurately designated as demonstrated by the soil study and record
submissions (Burden of Proof, March 19, 2024 and April 2, 2024). Further discussion on the soil analysis is detailed
under the OAR Division 33 criteria below.
26
Section 2.5, Water Resources Policies
Goal 6, Coordinate land use and water policies.
Policy 2.5.24 Ensure waterimpacts are reviewed and, if necessary, addressed forsignificant land
uses or developments.
FINDING: In Aceti IV (247-20-000438-PA, 439-ZC), the Hearings Officer and the Board of County Commissioners
("BOCC") adopted the following finding:
"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 1 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 County'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 Avian Water Company
provides water service in the Deschutes Junction area, and a 12-inch diameter Avian 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."
The Applicant is not proposing a specific development application as part of the application requests to be decided
in this case. The Hearings Officer finds, consistent with the analysis in Aceti IV (247-20-000438-PA, 439-ZC), the
Applicant is not required to demonstrate the water impacts associated with development. Rather, the Applicant
will be required to address this criterion during a development application for the Subject Property. A subsequent
development application would be reviewed under any necessary land use review process for the Subject Property
(i.e., conditional use and tentative plan approval).
27
A County Hearings Officer made, and the BOCC adopted, similar findings in the LBNW, LLC decisions (County
planning files 247-23-000398-A, 247-21-000881-PA, 882-ZC). The Hearings Officer in this case finds that the above -
referenced findings are relevant and applicable to this recommendation.
Section 2.7, Open Spaces, Scenic Views and Sites
Open Space and Scenic View Designations and Protections
Scenic view protection is implemented through the Landscape Management Combining Zone
regulations, with the list of landscape management roads and rivers in the Goal 5 resource list in
Chapter 5 of this Plan.
Goal and Policies
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 Applicant provided the following response to these policies (Burden of Proof, page 12):
"The subject property is not within the Open Space and Conservation (OS&C) Zone. The properties are
located within a Landscape Management (LM) Combining Zone associated with designated scenic
highways, roads, rivers, and streams.
It should be noted that no actual development of the property is proposed at this time."
The western portion of the Subject Property is located within the LM Combining Zone associated with the
Deschutes River scenic corridor. The standards associated with the LM Combining Zone are generally reviewed for
compliance when a new structure or substantial alternation of an existing structure is proposed.
LUBA recently held in Central Oregon Landwatch v. Deschutes County (LUBA No. 2023-008, April, 24 2023)(the
"LBNW Decision") the following:
"Goal 5 is '[t]o protect natural resources and conserve scenic and historic areas and open spaces.' OAR
660-023-0250(3) provides:
'Local governments are not required to apply Goal 5 in consideration of a PAPA [Post -
Acknowledgement Plan Amendment] 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(.]' Footnote 11
Footnote 11 — If Goal 5 applies, then the local government is required to comply with OAR 660-023-0040
and OAR 660-023-0050.'
28
The BOCC addressed this issue in their remand decision for LBNC Decision (ref. files nos. 247-23-000398-A, 247-
21-000881-PA, 882-ZC). The Applicant for the LBNC Decision case also requested a Plan Amendment and Zone
Change for a property located in a LM Combining Zone and the BOCC in that case found:
"As stated within OAR 660-023-0030(1), this rule's purpose is 'to compile or update a list of significant
Goal 5 resources in a jurisdiction.' Importantly here, the inventory process has already been completed.
Accordingly, the Board finds that Section 5.5 of the Deschutes County Comprehensive Plan ('DCCP') entitled
Goal 5 Inventory: Open Spaces, Scenic Views and Sites identifies an area extending -mile on either side
of the centerline of certain roadways, including Highway 97 between the Bend and Redmond Urban
Growth Boundaries ('UGBs'), as a Goal 5 scenic view resource.
[T]he Board finds that the LUBA Decision already 'identified conflicting uses' in this case, i.e., the first step
as set forth in OAR 660-023-0040(1)(a) and further identified in OAR 660-023-0040(2). The Board
unanimously finds that those 'identified conflicting uses' are those uses allowed outright or conditionally
under the RI zone on the subject Properties that would not have otherwise been allowed under the current
EFU zoning. Accordingly, these findings focus on the second, third, and fourth steps in the ESEE (Economic,
Soil, Environmental & Energy) Decision Process as further detailed by OAR 660-023-0040(3) through (5).
The Board accepts and agrees with the identification of the conflicting uses as identified in the LUBA
Decision, as those uses allowed outright or conditionally under the RI zone on the Subject properties that
would not have otherwise been allowed under the current EFU zoning.
The Board presumes that the Applicant initially suggested such a limited impact area because of the second
sentence in OAR 660-023-0040(3) stating that that the impact area should 'include only the area in which
allowed uses could adversely affect the identified resources.'
As understood by the Board, this 'impact area' disagreement between the Applicant and COL [Central
Oregon LandllWatch] stems from the Applicant focusing on the second sentence set forth in OAR 660-023-
0040(3) and COL Wfocusing on the third sentence. The Board further notes that it is hard to reconcile what
appears to be contradictory direction provided by those two sentences. Nevertheless, the Board does not
need to resolve that issue presently because the Applicant's July 19 rebuttal submittal and July 26 final
legal argument both proposed an expanded impact area to address COLW's concerns. Consistent with the
Applicant's aforementioned submittals, the Board unanimously finds that the appropriate impact area in
this case includes 'those properties to the west of Highway 97 and within the existing LM Zone (i.e., within
'4-mile of the centerline of Highway 97) between the 61st Street intersection to the north and the Tumalo
Road off ramp to the south.' The Board favors this expanded impact area for three reasons.
As understood by the Board, every ESEE analysis is intended to be context specific, and the Board is
"afforded fairly broad discretion in considering potential impacts from allowing or prohibiting a particular
use * **." See Central Oregon LandWatch v. Deschutes County,_Or LUBA_ (LUBA No 202-019, March
22, 2021) (internal citations omitted). Pursuant to OAR 660-023-0040(1), the Board again notes that an
"ESEE analysis need not be lengthy or complex but should enable the reviewers to gain a clear
understanding of the conflicts and the consequences to be expected." In this case, the majority of the Board
0 finds that the Updated ESEE Analysis provides a "clear understanding of the conflicts and consequences
to be expected" if the RI uses are allowed on the subject Properties."
DCCP Section 5.5 also identifies Goal 5 scenic view resources as the land within the boundaries of a state scenic
waterway or a federal wild and scenic river corridor; and all land within 660 feet of the ordinary high water mark
of portions the following designated rivers and streams which are not designated as state scenic waterways or
46.1
federal wild and scenic rivers. This would include the area of the Subject Property located within the LM Combining
Zone is an inventoried Goal 5 scenic view resource associated with the Deschutes River.
Applicant provided an open -record evidentiary submission (March 19, 2024, pages 10-12) comparing uses allowed
in the EFU zone to those uses allowed under the proposed MUA zoning. The Hearings Officer finds that the
Applicant's March 19, 2024 record submission addressed the primary LUBA concern raised in the LBNC Decision;
would approval of a plan designation change and zone change allow "new uses" (compared the existing plan/zone)
that "could conflict with Goal 5 resources."
Applicant, in its Final Argument (April, 2, 2024, pages 7-9), provided a legal analysis of the Goal 5 evidence already
in the record. The Hearings Officer sets forth the Applicant's Goal 5 legal analysis, in full, below:
"The Deschutes River scenic corridor runs along the western side of the subject property (though not bordering
most of it as a result of the 2024 4-acre sale to the adjoining property owner, Dunson, Exhibit 36).
Approximately % of the subject property is located within the LM Combining Zone as protection for the corridor.
New structures within the view area of the river are commonly regulated by this standard. It is a designated
Goal5 resource. LUBA recently broadened previous interpretations of how a PA/ZC or PAPA should be analyzed
when Goal 5 lands are involved.
The Site 303 "Pink Pit" is also an inventoried Goal 5 resource. Approximately 213 of the subject property is
overlaid with the Combining Zone for this protected use. Because the same analysis and caselaw applies to
both resources, the compliance analysis is combined here in summary.
Aceti V, discussed above, is an illustration of this broadened analysis. A more recent application of the Aceti V
analysis of Goal compliance was made by LUBA in Central Oregon Landwatch v. Deschutes County and LBNW
LLC, (LUBA No 2023-008, April 24, 2023)("LBNW"). LUBA remanded Deschutes County's first approval in
Ordinance No. 2022-011 on March 14, 2022. Goals Compliance was central to LUBA's remand, finding that
Deschutes County misconstrued the applicable law because it did not evaluate "whether the new RI zoning
allows uses on the subject property that were not allowed under the previous EFU zoning and whether those
uses could conflict with protected Goal 5 resources." (LBNW, Page 35). LUBA went on to find that because
the approval "allows new uses that could conflict with inventoried Goal 5 resources ... the county is required
to comply with OAR 660-023-0250(3)." (LBNW, Page 36).
OAR 660-023-0250 is part of LCDC's rules governing "Procedures and Requirements for Complying with Goal
5" as addressed in prior submittals. See Applicant's March 19, 2024 Open Record Submittal, Pages 10-12.
(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..."
Applicant's March 19, 2024 Open Record Submittal provided the allowed, conditional, and special uses for both
EFU and MUA-10 zones. See Exhibit 41. These allow for the analysis of the change of uses proposed,
comparing the two zones. Impactful uses include:
EFU Uses (Non-HV Farmland)
Outright: 18, including 2 dwelling types
Special: 11, including 2 dwelling types
Cndnl: 37, including 5 dwelling types,
MUA-10 Uses
Outright: 11, including 2 dwelling types
Special: None
Cndnl: 34, including 5 dwelling types,
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res. facilities, agri-tourism, equine, lodge, bed & breakfast
guest dog, aquatic species farms
EFU zoning allows significantly more uses than MUA-10 as summarized above and detailed in previously
submitted Exhibit 41. The specific resource zones on the subject property, mineral and river, have been
analyzed for potential conflicts in the change to MUA-10 zoning and Rural Residential Exception Area plan
designation as required by recent caselaw interpretation of the OAR.
The Site 303 "Pink Pit" and the Deschutes River are the Protected Goal 5 Resources impacting the TL 100
Subject Property. Exhibit 23 was submitted with Supplemental Submittal dated November 23, 2022, and is
described in the narrative on page 5. The 1989 ESEE Findings and Decision identifies on Page 0457 that site
characteristics include "residential acreages" including 40-acre residential acreages to the south, residential
property between the mine and the river, and Tumalo Rim subdivision within a half mile to the north on % acre
lots. The Land Use Conflicts analysis that follows starting on page 0459-0461 notes that the existing residential
uses in the area, "(sjpecifically, the residential uses in the nearby 40-lot Tumalo Rim Drive subdivision to the
North and the adjacent residence to the East would be subject to noise near the subdivision and possible dust
impacts." The first paragraph on Page 0461 closes with this comment on the subject property, "The site would
be most visible from the undeveloped land to the East." That finding was likely based on viewing the Pink Pit
from the high rim of the subject property overlooking the Deschutes River ravine. Current setback rules and
Scenic River visual setbacks would preclude any construction along the viewable (or viewing) rim, but instead
would be set back, similar to the layout proposed in Applicant's Tentative Plan.
Despite these conflicts identified with 1989 and future uses, the Deschutes County Board of Commissioners
decided in 1989 to classify the area as "SM" or Surface Mining, concluding that the different uses between the
nearby residential uses and the Goal 5 resource were not sufficiently significant to preclude that the two uses
could co -exist though different, and determining that the mineral resource was properly protected by a Goals
designation. It is reasonable to conclude that now that the site is largely inactive and possible depleted to
preclude further profitable extraction and processing, the potential conflict between the mineral resource and
MUA-10 uses would be significantly less than it was in 1989, when such uses were allowed in conjunction with
an active and resource -rich mining site. Even if fully active as it was at that time, the area MUA-10 and other
rural residential uses did not obstruct use of the mining resource. The allowed uses under MUA-10 zoning do
not pose a potential conflict different from the existing EFU use conflicts, except that perhaps there will be
fewer of them.
The Deschutes River scenic corridor is a designated scenic view resource. Its views are protected from
structural changes by setback review which is not relevant to a PA/ZC analysis where no structural changes
are proposed. The changes in uses identified in Exhibit 41, analyzed in Applicant's Open Record submittal on
March 19, 2024, and the impactful uses compared above, show no potentially conflicting uses to the scenic
corridor, where all proposed uses under the MUA-10 zone would be subject to setback review and could be
located back from the rim without being seen from the Deschutes River below."
The Hearings Officer finds that the above -quoted Applicant final argument statement references credible and
substantial evidence previously submitted into the record of this case and the evidence and argument fairly
reflects the intent of Goal 5 and related administrative rules. The Hearings Officer finds that Applicant did
undertake a thorough review of the EFU and MUA zoning code provisions related to allowed, special and
conditional uses.
The Hearings Officer finds the two identified Goal 5 resources, in this case, are the Deschutes River (with
associated public ownership) and the surface mining property referred to as the "Pink Pit." The Hearings Officer
takes note that building setback requirements limit the visibility of any EFU or MUA allowed use from the
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Deschutes River. The Hearings Officer finds uses allowed in the EFU zone are more varied and potentially more
impactful than MUA allowed residential uses. As a practical matter lawful development of the Subject Property
under the current EFU zone or proposed MUA zone will not negatively impact the Deschutes River Goal 5 resource.
The Hearings Officer finds that residential use is allowed in the EFU zone and MUA zone and that there will be no
new use, if this application is approved, that will impact the Goal 5 identified "Pink Pit" resource.
The Hearings Officer adopts, as additional findings for this section, the Applicant's above -quoted final argument
statements. The Hearings Officer finds, based upon the November 23, 2022 Supplemental Submittal, March 19,
2024 open -record submission and April 2, 2024 final argument that this policy is satisfied.
Section 2.10, Surface Mining
Goal 1, Protect and utilize mineral and aggregate resources while minimizing adverse impacts of
extraction, processing and transporting the resource.
Policy 2.10.3 Balance protection of mineral and aggregate resources with conflicting resources
and uses.
FINDING: The Hearings Officer incorporates the findings for Section 2.7, 2.73 and 2.75, as set forth immediately
above as additional findings for this policy. The Subject Property, except for the southeast corner, is located within
the SMIA Combining Zone associated with Surface Mining Site No. 303 (the "Pink Pit"). This mining site is
approximately 400 feet to the west and County records indicate pumice and aggregate can be extracted from
approximately 30 acres of the 80-acre Surface Mine ("SM") zoned property.
The Hearings Officer finds that Applicant did conduct a review of EFU and MUA uses to determine if any new uses
would be introduced that would conflict with the Pink Pit surface mining Goal 5 resource. The Hearings Officer
concurs with Applicant's conclusion reached in its November 23, 2022 Supplemental Submittal, March 19, 2024
open -record submission and April 2, 2024 final argument documents that approval of the MUA zone would not
add any new use that would conflict with the Pink Pit surface mining Goal 5 resource.
Chapter 3, Rural Growth Management
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 DCCP does not contain goals or policies but does provide the guidance above. The
Applicant provided the following response to this provision (Burden of Proof, page 13):
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"The County Comprehensive Plan notes that "Some farm lands with poor soils that are adjacent to rural
residential uses can be rezoned as rural residential. " The requested Plan amendment is based on the results
of the submitted Soils Investigation which has demonstrated that the subject property is made up of "poor
soils" so does not constitute "agricultural lands" as defined in the Goal, based upon a site -specific soils
study conducted by a certified, professional soil scientist (Brian Raby). Therefore, the proposal is consistent
with this section of the Comprehensive Plan, given that the subject property has been determined to be
non -resource land, so appropriate for rural residential development.
It should also be noted that the MUA-10 Zone is a rural residential zone and as discussed above, there are
many adjacent and surrounding properties that are zoned MUA-10. This proposal fits well with this
criterion."
The MUA Zone is a rural residential zone and as discussed in the Basic Findings above. Adjacent and nearby
properties to the east, northeast, and north are zoned MUA. This guidance text also references poor soil quality
as a consideration, which is discussed in more detail under the OAR Division 33 criteria below.
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 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 (Burden of Proof, page 14):
"To the extent that the quoted language above represents a policy, it appears to be directed at a
fundamentally different situation than the one presented in this application. The quoted language
addresses conversions of 'form" or 'forest" land to rural residential use. In those cases, the language
indicates that some type of exception under state statute and DLCD rules will be required in order to
support a change in Comprehensive Plan designation. See ORS 197.732 and OAR 660, Division 004.
That is not what this application seeks to do. The analysis below explains that the Applicant has been
successful in demonstrating that the subject property is composed predominantly of nonagricultural soil
types and is unirrigated. It is not "agricultural." Therefore, it is permissible to conclude that the property is
not 'farmland" as defined under state statute, DLCD rules, and that it is not correctly zoned for exclusive
farm use.
It is important to distinguish that this application does not seek to convert "agricultural land" to rural
residential use. If the land is demonstrated to not be composed of agricultural soils, then there is no
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"exception" to be taken. There is no reason that the Applicant should be made to demonstrate a reason,
developed or committed exception under state law because the subject property is not composed of the
type of preferred land which the exceptions process was designed to protect. For all these reasons,
Applicant should not be required to obtain an exception to Goal 3. It is reasonable to conclude that the
requirement of an Exception is not applicable here."
Staff (Staff Report, page 29) noted that prior Deschutes County Hearings Officer and BOCC interpretations have
found the above language is not a policy and does not require an exception to the applicable Statewide Planning
Goal 3. The Hearings Officer, in this case, concurs.
The Applicant has provided evidence in the record addressing whether the Subject Property qualifies or does not
qualify as agricultural or forest land. The Hearings Officer incorporates the Preliminary Findings related to Goal 3
(III.A.5 — Oregon Statewide Planning Goal 3) and the findings set forth later in this recommendation related to
Goal 3 (including, Goal 2, Land Use Planning, PART I — PLANNING, EXCEPTIONS, PART III -- USE OF GUIDELINES,
Goal 3, Agricultural Lands and Division 33 - Goal 3 - Agricultural Lands and OAR 660-015-0000) as additional
findings for this section.
The Hearings Officer finds, based upon Applicant's above -quoted statements and Staff comments and the
incorporated findings that the proposed RREA plan designation is the appropriate plan designation to apply to the
Subject Property assuming the applicable standards identified in this recommendation are met.
Section 3.7, Transportation
The Transportation System was adopted in Ordinance 2012-005 and is hereby incorporated into this
Plan as Appendix C. The Deschutes County Transportation System Plan Map will be retained in official
replica form as an electronic map layer within the County Geographic Information System and is
adopted as part of this Comprehensive Plan.
DCCP Appendix C — Transportation System Plan
Executive Summary
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: Staff noted (Staff Report, page 29) the heading for this section of the Transportation System Plan ("TSP")
is titled "Arterial and Collector Road Plan." Staff (Staff Report, page 29) suggested that it is unclear whether the
goals and policies included in this section of the TSP apply to properties without frontage or clear impacts on a
roadway classified as an arterial or collector. Staff noted that prior Hearings Officer recommendations and Board
decisions have included the following finding for similarly situated properties without frontage on an arterial or
collector:
"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 County will comply with this direction by
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determining compliance with the Transportation Planning Rule ("TPR"), also known as OAR 660-012, as
described below in subsequent findings."
The Subject Property does not have frontage on an arterial or collector. The Subject Property abuts Destiny Court
(County Road) and Northern Estates Drive (Local Access Road). Additionally, the Traffic Reports and TPR Analysis
submitted by the Applicant do not identify any impacts on any arterial or collector roadway.
The Hearings Officer concurs generally with the above -quoted statement. The Hearings Officer finds that while
the section is titled "Arterial and Collector Road Plan" Policy 4.4 describes the transportation system more
holistically; not limited to just arterial and collector roads. The Hearings Officer policy 4.4 is a relevant
consideration in this case.
The Hearings Officer incorporates the findings for Division 12 -Transportation Planning as additional findings for
this section. Further, the Hearings Officer finds, for the purposes of a plan amendment/zone change application,
the Applicant's Site Traffic Report/TPR analysis addresses affected roadway function, classification, and capacity.
The Hearings Officer finds County transportation planning staff reviewed Applicant's transportation submittals
and concurred with Applicant that proposed plan and zoning designations do not exceed the planned capacity of
the transportation system. The Hearings Officer finds this policy is met.
OAR Chapter 660, Land Conservation and Development Department
Division 6, Forest Lands
OAR 660-006-0005, Definitions
(7) "Forest lands" as defined in Goal 4 are those lands acknowledged as forest lands, or, in the case
of a plan amendment, forest lands shall include:
(a) Lands that are suitable for commercial forest uses, including adjacent or nearby lands
which are necessary to permit forest operations or practices; and
(b) Other forested lands that maintain soil, air, water and fish and wildlife resources.
FINDING: The Applicant provided the following response to this provision (Burden of Proof, page 18):
"The subject property is not zoned for forest lands, nor are any of the surrounding properties. The property
does not contain merchantable timber and there is no evidence in the record that the property has been
employed for forestry uses historically. None of the soil units comprising the parcel are rated for forest
uses according to NRCS data. The property does not appear to qualify as forest land and there is no
evidence of it ever having been zoned as such. This standard is not applicable."
The Hearings Officer finds that the Subject Property is not zoned for forest lands, nor are any of the properties
zone for forest lands within a 1.5-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.
Additionally, none of the soil units comprising the parcel are rated for forest uses according to NRCS data. The
Hearings Officer finds the Subject Property does not qualify as forest land.
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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;
(8) 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 comprehensive plan
designation of the Subject Property from AG to RREA and change the zone from EFU to MUA. The Applicant is not
proposing any land use development of the Subject Property as a part of this review request.
The Applicant submitted a Site Traffic Report/TPR analysis dated September 15, 2021, and prepared by Joe
Bessman of Transight Consulting LLC. As noted in the Agency Comments section above, the County's Senior
Transportation Planner identified deficiencies with the submitted STIR and TPR analysis and requested additional
information. The Applicant then submitted a memorandum, dated August 8, 2022, and prepared by Joe Bessman,
to supplement the information provided in the original STR/TPR analysis.
The memorandum was reviewed by the County's Senior Transportation Planner who agreed with the Applicant's
updated traffic report conclusions. The County Senior Transportation Planner found that the proposed Plan
Amendment and Zone Change would be consistent with the identified function, capacity, and performance
standards of the County's transportation facilities in the area. The County Senior Transportation Planner found
that the proposed Zone Change would not change the functional classification of any existing or planned
transportation facility or change the standards implementing a functional classification system. Regarding the
memorandum dated August 8, 2022, the County's Transportation Planner provided the following comments in an
email dated October 17, 2023:
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"l have reviewed Mr. Bessman's August 8, 2023, Site Traffic Report/TPR Analysis related to the subject
application and 1 agree with the assumptions, methodology, and conclusions contained therein. As Mr.
Bessman utilizes the 2040 planning horizon year (reflective of the most recent data included in the County's
forthcoming Transportation System Plan update) this analysis appears to comply with relevant criteria.
Mr. Bessman utilizes the acceptable road segment standard of 13,900 Average Daily Trips (ADT) which is
incorporated into the County's most recent 2020-2040 Transportation System Plan. The analysis and
references therein related to peak hour trips (16 to 22 total weekday p.m. peak hour trips) are adequate.
Staff agrees with Mr. Bessman's summary of Transportation Planning Rule (TPR) Compliance and finds
that relevant TPR provisions appear to be satisfied through the submittal of this additional information."
Based on the County Senior Transportation Planner's comments and the traffic study from Transight Consulting
LLC, 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 findings are quoted below:
Goal 1, Citizen Involvement. To develop a citizen involvement program that insures the opportunity for
citizens to be involved in all phases of the planning process.
RESPONSE: Deschutes County has adopted and publicized a program for citizen involvement in policy formulation
and implementation. This program complies with this goal as part of an acknowledged Comprehensive Plan. In
this case, the public in the area will be mailed notices, a notice will be published in the local newspaper, and a sign
was posted on the Subject Property. In addition, at least two public hearings will be held on the proposed plan
amendment before it can be approved - one before the Hearings Officer and one before the Deschutes County
Board of Commissioners. The citizenry will have notice and opportunity to be involved in the process that is the
subject of this application. This program, as practiced, complies with this goal.
Goal 2, Land Use Planning.
PART I -- PLANNING To establish a land use planning process and policy framework as a basis for all
decision and actions related to use of land and to assure an adequate factual base for such decisions
and actions.
PART II — EXCEPTIONS
PART III -- USE OF GUIDELINES
RESPONSE: Deschutes County's land use planning process and policy framework are acknowledged. The processes
rely on factual offerings of proof from knowledgeable and verified sources on which to base quasi-judicial and
legislative decisions.
An exception to one of the Goals is not requested by this application.
Deschutes County's guidelines comply with state law as required.
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This application complies with Deschutes County's Code regarding land use planning. Deschutes County's land use
planning system and implementation comply with this Goal. Therefore, this application complies with the Goal.
Goal 3, Agricultural lands. 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.
RESPONSE: The Hearings Officer incorporates the Preliminary Findings related to Goal 3 (III.A.5 — Oregon
Statewide Planning Goal 3) and 710 Properties Decision (III.A.7. — 710 Properties Decision) as additional findings
for this Goal 3 section. The Hearings Officer also incorporates the findings for Deschutes County Comprehensive
Plan ("DCCP"), Chapter 2, Resource Management, Section 2.2, Agricultural Lands as additional findings for this
section.
Applicant asserts that the Subject Property is not Goal 3 "agricultural land" and therefore no exception from Goal
3 is required. Applicant provided, in its Burden of Proof and subsequent record submissions, evidence and
argument in support of its conclusion that the Subject Property is not "agricultural land" as defined in relevant
sections of the DCC, ORS, OAR as interpreted by LUBA and the courts.
The Hearings Officer finds the Applicant included in the record a site -specific soil analysis of the Subject Property
and the site -specific study concluded that soils on the Subject Property are predominately Class VII and VIII
(65.8%). The Hearings Officer finds no persuasive evidence in the record to dispute credibility of the site -specific
soil study conclusion that the Subject Property is predominately Class VII and VIII soils. The Hearings Officer finds
the soil characteristics standard set forth in OAR 660-033-0020(1)(a)(A) defines "agricultural land" to be (Eastern
Oregon) predominately Class I through and including VI. The Hearings Officer finds, based on the site -specific soil
study, that the Subject Property is not "agricultural land" under the OAR 660-033-0020(1)(a)(A) test.
OAR 660-033-0020 (1)(a)(B) & (C) necessitate additional analysis. OAR 660-033-0020(1)(a)(B) is often referred to
as the "suitable for farm use" test or standard.
OAR 660-033-0020(1)(a)(B) requires consideration of the following:
* Soil suitability for grazing; and
* Climatic conditions; and
* Existing and future availability of water for farm irrigation purposes; and
* Existing land use patterns; and
* Technological and energy inputs required; and
* Accepted farming practices.
OAR 660-033-0020(1)(a)(C) requires consideration of adjacent or nearby agricultural lands to determine if the
Subject Property is necessary to permit farm practices on those adjacent or nearby lands.
The Hearings Officer finds that it is important that the Hearings Officer accurately reflect the evidence in the
record related to the "agricultural land" issue. The Hearings Officer, therefore, includes below the entire Applicant
March 19, 2024 Goal 3 open -record submission. The Hearings Officer will address relevance and credibility issues
related to Applicant submission in later findings.
Applicant's Goal 3 (March 19, 2024, pages 3 - 10) submission follows:
"Two separate issues have been raised regarding Goal 3. These are:
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A. Compliance with Goal
B. Need for an Exception to Goal 3
These shall be addressed separately below.
A. Compliance with Goal
ORS 197.175 (2)(a) requires local governments to comply with LCDC goals as part of Plan Amendments. Goal
3 is one of LCDC's goals.
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 policy
expressed in ORS 215.243 and 215.700.
Recent caselaw has focused on the definition of "Agricultural Land" and has seemingly broadened long
standing and established legal interpretations, at least in the cases decided at LUBA and the Court of Appeals.
What is meant by "Agricultural Land" is pivotal to understanding the Goal's proper implementation.
The Statewide Planning Goal defines Agricultural Land in eastern Oregon as follows:
[I]n eastern Oregon is land of predominantly Class 1, ll, Ill, IV, V and VI soils... and other lands which are
suitable for farm use 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, or accepted farming practices. Lands in other classes which are
necessary to permit farm practices to be undertaken on adjacent or nearby lands, shall be included as
agricultural land in any event.
Here's the administrative rule definition, which notes the above definition also applies:
Division 33 Agricultural Land
660-033-0020
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 -
VI soils in Eastern Oregon;
(B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into
consideration soil fertility suitability for grazing; climatic conditions; existing and future availability of water
for farm irrigation purposes; existing land use patterns, technological and energy inputs required; and
accepted farming practices; and
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(C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural
lands.
(b) Land in capability classes other than...) -VI that is adjacent to or intermingled with lands in capability
classes... I -VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be
cropped or grazed....
RESPONSE: Since the OAR definition is different from the Goal definition, and the OAR definition expressly
notes that the Goal definition is also valid, we address elements of both.
Soil Classification Method: Exhibit 3 is the Site -Specific Soil Survey of the Subject Property. Figure 4 is the site -
specific soils map. 62.87 acres were evaluated (excluding most of rock ravine, which was too steep to be
sampled). See pages 4-5. In summary, 34.2% tested as Class VI or less, leaving 65.8% soils testing as Class VII-
VIII. It is reasonable to conclude that under either definition, the "predominantly Class VI (or less) soils" of the
Goal, or the (1)(a)(A) definition of the OAR, the Subject Property does not qualify as "Agricultural Land" by soil
classification.
Other Lands Analysis
The Goal identifies 'other lands which are suitable" based on other factors. These are:
Soil Fertility
The Subject Property was studied for soil fertility in the Site -Specific Soil Survey Report, Exhibit 3. The Page 5
summary notes 'These soils are predominantly shallow with sandy textures (low clay content) and low organic
matter content. These conditions result in a low Cation Exchange Capacity (CEC) that limits the ability of these
soils to retain nutrients. Fertilizer must be applied to achieve optimum yields. Proper management requires
that fertilizers be applied in small doses on a frequent basis. The revenue from most locally adapted crops are
not expected to cover the cost of inputs and management.'
These scientists concluded that the soils do not contain sufficient nutrients and do not have the capacity to
retain artificially applied nutrients in the form of fertilizers. Attempts to irrigate and grow pasture have also
failed, as described in the Ferguson affidavit, Exhibit 25, described in more detail in the next section. It is
reasonable to conclude that this tract does not have sufficient soil fertility to qualify as "agricultural land."
Suitability for Grazing
The CEC Site -Specific Soil Survey Report (Exhibit 3) also evaluated this factor on Pages 5-6. In summary, the
scientists found that forage production potential, at 912.5 pounds of dry matter needed to feed a cow and calf
pair for one month (animal unit month -AUM), the Subject Property 'does not represent a sufficient number of
AUM for a commercially viable livestock operation.'
The scientific conclusion is verified by actual site experience. In 2012, Applicant Member Manager Ron Cochran
leased the Subject Property to Mark and Cathy Ferguson to graze 12 head of cattle over the summer season.
Two small pivots were positioned to water about 28 of the 62 acres. This was 'the only real area with enough
soil to support pasture' according to the Ferguson affidavit, Exhibit 25. Even the best area proved to be too
uneven and rocky. The Fergusons gave up after a month, and Mr. Cochran, convinced they'd made best efforts,
released them from the agreement.
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By both scientific analysis and actual site experience, it is reasonable to conclude that the Subject Property is
not suitable for grazing as a means to qualify as 'agricultural land'
Climatic Conditions
The nearest urban area tracking climate data is the city of Bend, less than a mile to the south. Bend averages
3,623' elevation. Average snowfall is 33 inches per year. The last spring frost averages on June 14 and first fall
frost averages on September 12, leaving approximately 89 days on average for a traditional growing season.
This is considered to be a 'short' growing season and precludes successful farming of most commercial crops.
The CEC Site -Specific Soils Analysis, Exhibit 3, summarizes Climatic Conditions on Page 6. The report also notes
an approximately three-month growing period and goes on to note that the region receives less than 12 inches
of annual rainfall, 'with very little falling during the growing season.' Native rangeland grasses "are the only
realistic crop" without irrigation. As noted above in the Ferguson affidavit, irrigation isn't productive due to
the uneven and rocky nature of the site. The CEC report concludes 'the Site would not support a commercial
livestock operation.'
It is reasonable to conclude that climatic conditions on the site are such that it would not qualify as 'agricultural
land' under this definitional category.
Existing and future availability of Water for farm irrigation purposes
Irrigation water is available to the site. Irrigation has been tried on the site by both the current owner and at
least one previous owner. See Ferguson Exhibit 25. Current irrigation water supplies provided to the Subject
Property are delivered by Swalley Irrigation District, a district that stores its reserves in the Crane Prairie
Reservoir and delivers to the north Bend area through the Deschutes River main diversion. The Riley sublateral
stubs out in the area of the Subject Property. Swalley is part of a basin -wide push to pipe all canals, laterals,
and sub laterals and eliminate wasteful deliveries to meet conservation goals by returning water to the
Deschutes River for habitat conservation as part of a Federal agreement, and in keeping with Oregon Water
Resources Department administrative rules.
Irrigation water delivery facilities do exist to the site. However, irrigating the site has proven to waste a
precious resource, while yielding little to no productive growth to justify the expense and resource waste. Going
forward, surface water in the entire Deschutes Basin is expected to be scrutinized for efficiency and
productivity, since surface and groundwater are deemed by the USGS to be commingled in the Basin, and
demand for potable water is projected to increase exponentially in the coming years with population growth.
In summary, water is available for now, but both science and experience have proven that irrigating the Subject
Property won't improve it sufficiently to qualify it as 'agricultural land.'
Existing Land -use Patterns
Deschutes County tracks land -use patterns and provides reports over 1 mile radius around the Subject Property.
A packet prepared for the Subject Property and surrounds is submitted as Exhibit 37. It contains the following
information relevant to surrounding land -use patterns:
■ EFU-zoned parcels (list and map) -Pages 1, 2
There are 3 other parcels zoned EFU on the some side of the Deschutes River ravine as the subject property.
The two to the north, TLs 102 and 103 belonging to Kaufman and Burke respectively, are not in farm -deferral,
41
are both less than 20 acres (23 acres is the minimum EFU TRB zoned tract allowed to allow for profitable
agricultural use) and are not farmed. The tract to the south, TL 502, was traded by Deschutes County to the
Oregon State Parks and Recreation Department. It is part of a contiguous tract bordering the Deschutes River
ravine. It is not farmed or cultivated in any way. None of the parcels west of the ravine are in farm deferral for
1600 feet, or approximately 113 mile.
It is reasonable to conclude that no tracts within 1 mile of the Subject Property on the east side of the Deschutes
River ravine are zoned EFU and actually being farmed.
■ Soils (NRCS Classification) Map- Page 3
As noted above, the site -specific analysis provided as Exhibit 3 provides data that is superior for the Subject
Property. The 1-Mile Packet Map shows a total of 5 general soil classifications on the east side of the ravine in
the 1-mile radius. Based on the Map Unit Description Table, these are mostly Class VII soils, but 38B can be
Class VI in some circumstances. Across the ravine to the west, 13 soil classifications are mapped, indicating a
different soil set. This is also the area where there is some farm deferral land in the 1-mile study area. These
are 113 mile from the Subject Property or more and separated by the deep ravine and the Deschutes River. See
Exhibit 38, previously submitted into the Record.
■ Properties in Tax Deferral Map - Page 4
While tax deferral is not a clear indicator of lands being used for commercial agriculture, it is generally
accepted that owners looking to make an agricultural profit will seek out property tax deductions to improve
the profit margin, and are more likely to qualify for it. As the map shows, there is no property in tax deferral
on the east side of the ravine, indicating there are no owners using lands for commercial agriculture on the
Subject Property side of the river.
■ EFU-zoned parcels by acreage Map - Page 5
Parcel size is another indicator of land use. Larger parcels are needed to make farming profitable, in keeping
with Deschutes County's 23 acre minimum for EFU-TRB tracts. The Map indicates that the larger parcels, apart
from the Subject Property, are those owned by Oregon State Parks and Recreation Department. (Ownership
by tract is listed in the table on Page 1 of the packet). Even the nearest tax deferred tract is approximately 17
acres. This is not an area of commercially productive agricultural tracts based on acreages.
■ Year Built (1900-1978, 1979-199Z, 1993-Present) Map -Page 5
The 'Year Built' map can provide data that's useful to understand development trends in the 1- mile area. This
specific data is questionable, since the subdivision to the south of the subject property has undergone extensive
development in recent decades but is not shown. We have included it as part of the packet provided, but do
not cite to it for guidance as it appears unreliable in understanding development patterns in all but the EFU
zoned tracts, and lands to the south and west are not zoned EFU.
■ Last Conditional Use Permit (non-traditional EFU) Map - Page 7
Similar to the map on Page 6, a map of 'Last Conditional Use Permit' indicates where uses have been applied
that do not fit squarely within the outright uses allowed in the respective zone. As shown, most of the
surrounding tracts have received conditional use permits, indicating non-traditional uses within that zone. The
legend confirms all are EFU-zoned properties.
■ Last Administrative Determination Map - Page 8
EAN
This map is included as part of the packet, but is not a likely indicator of agricultural uses in the area.
■ 1985 Aerial Photo showing cleared land (farm, desert, or mining) - Page 9
This aerial photo, taken almost 40 years ago, when compared to current tax lot maps included in the packet,
shows extensive development has taken place to the south as the City of Bend's UGB expanded considerably
in a northerly direction. What was undeveloped is now developed to the north, west, and south of the Subject
Property. The Urban Area Reserve is now right on the southern boundary of the Subject Property. Development
is moving in the direction of the instant tract, and surrounds it already on 3 sides.
■ NRCS estimated soil classifications (not site -specific) - Pages 10-17
This general data is a starting point in determining formability of area soils. As the aerial shows, there are no
crop circles or irrigated fields in the color photo on or near the Subject Property. It appears there is one possibly
irrigated field to the north near Highcroft Road, but it is not well defined or well irrigated.
The remainder of the packet sheets through page 17 are intended to provide soil classification data used by
NRCS. These are general, and not as reliable as the site -specific analysis provided by the CES scientists in Exhibit
3.
The County 1-Mile Packet (Exhibit 37), read together, provides detailed and site -specific data to yield the
following conclusions about existing land use patterns:
► No commercial farming is conducted on the east side of the ravine within the 1 mile radius of the Subject
Property.
► Soils on the east side of the ravine are not predominantly Class VI or better, so agricultural use is not
likely to be viable in the future.
► Tax deferral maps show the nearest commercial agricultural land use is approximately 113 mile away,
and that is across the ravine.
► Tract sizes have already been divided below EFU minimums to make farming
impracticable, with the exception of Oregon State Parks Recreation Department tracts which are reserved
for recreational use.
► Most EFU parcels near the Subject Property have developed with conditional uses (not traditional
agricultural uses)
► Development since 1985 around the Subject Property on three sides has been residential development,
not agricultural development, indicating a trend going forward.
Technological and Energy Inputs Required
The CES Survey Report (Exhibit 3) analyzes this factor on Page 6-7. The scientific analysis concludes "[t]here is
nothing that has been revealed during the course of this investigation that would suggest there is any
technological or energy -related reason to retain the subject property in an agricultural classification." It is
reasonable to conclude that this factor does not indicate the Subject Property is properly agricultural land.
Accepted Farming Practices
The Deschutes County 1-Mile Packet includes a table of "Common Farm Practices" used within the entire
County (Exhibit 37, Pages 18-21). The practices listed are mostly not feasible on the Subject Property, due to
soils, rocks, topography, and short growing season, according to the CES Analysis (Exhibit 3). The remainder
43
would not be profitable, per CES. Potential for conflicts is also analyzed by CES, and the report concludes on
Page 7 that "(sjince the Site is surrounded by parcels that are not managed for farm use and there does not
appear to be any recent history of farm use, the re -zoning of this parcel is not likely to represent any significant
increase in the potential for conflicts with accepted agricultural practices.
This detailed analysis of the factors identified in both the Goal and the related OAR indicate that this tract does
not qualify as Agricultural Land.
The OAR goes on to identify additional factors that may contribute to a tract qualifying as 'Agricultural Land.'
(A) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural
lands.
Analysis of this factor requires identifying 'adjacent or nearby agricultural lands.' In summary, based on the
Exhibit 371-Mile Packet Data discussed above, there are none on the eastern side of the ravine within one mile
of the Subject Property. On the western side of the ravine, there appears to be one 17 acre parcel in tax deferral
and zoned EFU, but it's 113 mile away in aerial distance (Exhibit 38) and the ravine is not crossoble by a motor
vehicle in the area, since the ravine is very deep and there are no public bridges in the area between the Subject
Property and the EFU lot. The nearest route would require travelling north on 0.8. Riley Road to a bridge which
intersects with Johnson Road, travelling southwest to the 17 acre parcel. This is a distance of approximately
2.5 miles. See Exhibit 40, incorporated by this reference.
Applied to the language of the rule above, "adjacent or nearby" does not identify any qualified farm parcels
that meet this definition. If there are no 'adjacent or nearby' agricultural lands, it is logical to conclude this
land is not "necessary to permit farm practices" on such lands.
(b) Land in capability classes other than...1-VI that is adjacent to or intermingled with lands in capability
classes... 1-VI within a farm unit, shall be inventoried as agricultural lands even though this land may
not be cropped or grazed....
This factor similarly requires identification of qualifying categories to perform the analysis required. The
Subject Property contains Class VI, Vll, and Vlll soils, though the VII and Vlll soils are predominant (Exhibit 3).
'Adjacent or intermingled Class I -VI soils' do exist on the Subject Property, but are so erratically interspersed
and difficult to irrigate as to be unfarmable. As noted in the Ferguson Affidavit and discussed below, it has
been tried. See Figure 4, Site Specific Soils Map, within Exhibit 3. See Page 4, last paragraph, Discussion of
Observations and Results. 'Of the 62.87 acres evaluated, 21.52 acres or 34.2 percent are represented by
Deskamp (Class VI) soils, in 14 irregularly shaped delineations ranging in size from 0.12 to 4.14 acres.'
The Deskamp soil is included in the area that Ferguson tried to irrigate for pasture production. See Exhibit 25.
He was unsuccessful, despite use of two pivots covering 28 acres of the 'only real area with enough soil to
support pasture. " He notes in his affidavit that the "uneven nature of the land and rock outcropping's [sic]
caused the pivot to frequently get out of line and would automatically shut down. Even where irrigation
covered the ground not enough grass grew to support the herd. The soil was just too thin and would support
only one or two animals. We ended the agreement after a month or so because it was obvious to both of us
that the 62 acres wouldn't grow enough to support grazing.' The Ferguson affidavit packet includes the Lease
Agreement, evidence of lease payment, and liability insurance on the Subject Property (last address listed on
Policy Declaration sheet).
The "adjacent or intermingled" factor has been carefully analyzed by the CES scientists and found to be so
interspersed as to be unfarmable. The reality of the Subject Property has been tested by Ferguson, and his
44
conclusions align with the CES Site -Specific Soil Survey Report. It is reasonable to conclude that even with
approximately 35% of the soil qualifying as Class Vl, it is so far apart and in such small sections and mixed with
such uneven topography and rock as to make it not suitable as Agricultural Land.
All factors identified as possible qualifiers for Agricultural Land have been analyzed carefully and evidence -
has been introduced into the Record to prove that the Subject Property does not qualify as Agricultural Land
as defined in the Goal and the applicable administrative rule.
B. Need for an Exception to Goal 3
Applicant's original Burden of Proof Statement, submitted on May 27, 202Z analyzes the need for a Goal 3
Exception on Pages 18-20. That reasoning still applies. Recent caselaw has broadened the definition of
'Agricultural Land.' Applicant has addressed the new interpretation in the analysis above, proving that even
under the new standards, the Subject Property does not meet the legal definition of 'Agricultural Land.'
Because the Subject Property is not legally 'Agricultural Land,' the regulatory nature of Goal does not apply
the Subject Property. As a result, no exception to it is required."
[End of Applicant's March 19, 2024 Goal 3 quoted material]
As noted earlier in the findings for Goal 3 the Hearings Officer found the Applicant's site -specific soil study
(Applicant Exhibit 3) to be credible and persuasive. The Hearings Officer found that the Subject Property soils
were predominately Class VII and VIII.
The Hearings Officer next addresses the OAR 660-033-0020(1)(a)(B) factors:
* 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).
The Hearings Officer, relying upon Applicant's site -specific soil study and the quoted comments above, finds that
the Subject Property does not have sufficient soil fertility to qualify as "agricultural land."
The Hearings Officer notes that the Applicant's site -specific soil study evaluated the "suitability for grazing" factor.
Further, Applicant included a statement by individuals who attempted to graze 12 head of cattle on the Subject
Property during a summer season. These individuals utilized irrigation water. These individuals abandoned the
grazing use of the Subject Property after only one month concluding that the Subject Property was not
economically feasible to use for grazing. (See Applicant's Exhibit 25, pages 1 — 2). There is no evidence in the
record indicating that the Subject Property is "agricultural land" for "grazing of livestock." The Hearings Officer
finds, based upon Applicant's site -specific soil study grazing analysis and the statement by individuals who
attempted to use the Subject Property for grazing, that the Subject Property is not "suitable for grazing."
The Hearings Officer finds consideration of "climatic conditions," as an independent "agricultural land" review
factor, to be challenging. Generally, the climate for Deschutes County, is relatively dry and allows for a short
growing season. No evidence is in the record to suggest that the Subject Property is located in a micro -climate
area which distinguishes the Subject Property location from the Deschutes County climate as a whole. The
Hearings Officer finds that "climatic conditions" (relatively little rainfall and short growing season) suggest the
45
Subject Property could possibly be "agricultural land" depending upon other OAR 660-033-0020(1)(a)(B) factors.
However, the Hearings Officer finds that "climatic conditions," standing alone, is not a determinative independent
factor leading to a conclusion that the Subject Property is "agricultural land."
The Hearings Officer finds irrigation rights do exist at the Subject Property (Applicant admission, March 19, 2024,
page 6). The Hearings Officer finds that the existence of water for farm irrigation purposes at the Subject Property
is suggestive that the Subject Property is "agricultural land." However, similar to the Hearings Officer's findings
related to "climatic conditions," the Hearings Officer finds that the availability of water for farm purposes at the
Subject Property, standing alone, is not determinative that the Subject Property is "agricultural land."
The individuals who attempted to farm the Subject Property utilizing irrigation water concluded, after one month,
"grazing livestock," even with irrigation water, was not feasible. Those individuals commented (Applicant Exhibit
25, letter dated June 25, 2022) that irrigation water failed to enhance the soils at the Subject Property sufficiently
to profitably farm because of the "uneven nature of the land" and the "existence of rock outcroppings." Those
individuals stated that the "soil was just too thin and would only support one or two animals." The Hearings Officer
finds that the site -specific soil study (Applicant Exhibit 3) and letter (Applicant Exhibit 25, letter dated June 25,
2022) from the above -referenced individuals constitute substantial evidence that the Subject Property is not
suitable for grazing even with the existence of water for farm irrigation purposes.
Applicant (quoted comments above) provided a thorough inventory and analysis of existing land use patterns in
the vicinity of the Subject Property. The Hearings Officer finds the Applicant's inventory and analysis of existing
land use patterns to be credible and constitutes substantial and persuasive evidence relating to the OAR 660-033-
0020(1)(a)(B) "existing land use patterns" factor. The Hearings Officer concurs with Applicant's summary of land
use patterns in the vicinity of the Subject Property (March 19, 2024, page 8). The Hearings Officer finds existing
land use patterns in the vicinity of the Subject Property suggest that the Subject Property is not "agricultural land."
The Hearings Officer agrees with Applicant's above -quoted discussion and conclusion that there is nothing in the
record to suggest that additional, alternative or supplementary technology or energy related inputs would
improve the prospects for the Subject Property to be considered "agricultural land." The Hearings Officer finds,
based upon the record of this case, that additional technology or energy inputs would not make up for the poor
quality of soil and the topographical limitations existing at the Subject Property.
Applicant's site -specific soil study discussed "accepted farming practices" at the Subject Property. Applicant's
site -specific soil study concluded that utilizing "accepted farming practices" would not offset the poor soil quality,
rocks, topography and short growing season at the Subject Property. The Hearings Officer also takes note of the
letter from the only individuals who did attempt to farm (Applicant Exhibit 25, letter dated June 25, 2022). These
individuals concluded that grazing livestock, even utilizing the irrigation water rights, was not economically viable.
The Hearings Officer finds, based upon the evidence in the record, that the Subject Property is not "agricultural
land" based upon a review of the OAR 660-033-0020(1)(a)(B) factors.
OAR 660-033-0020(1)(a)(C) requires analysis of the Subject Property in the context of adjacent and nearby
properties. Applicant, in the above -quoted comments, addressed this factor/standard. The Hearings Officer finds
no adjacent properties being farmed (used as "agricultural land"). Applicant did note (April 2, 2024, page 6) the
following:
"There are 3 other parcels zoned EFU on the some side of the Deschutes River ravine as the subject property.
The two to the north, TLs 102 and 103 belonging to Kaufman and Burke respectively, are not in farm -deferral,
are both less than 20 acres (23 acres is the minimum EFU-TRB zoned tract to allow profitable agricultural use)
and are not farmed. The tract to the south, TL 50Z was traded by Deschutes County to the Oregon State Parks
and Recreation Department. It is part of a contiguous tract bordering the Deschutes River ravine. It is not
46
farmed or cultivated in anyway. None of the parcels west of the ravine are inform deferral for 1600 feet, or
approximately 113 mile. It is reasonable to conclude that no tracts within 1 mile of the Subject Property on the
east side of the Deschutes River ravine are zone EFU and actually being farmed."
Based upon the record in this case the Hearings Officer finds that the Subject Property is not necessary to permit
farm practices to be undertaken or maintained on adjacent or nearby agricultural lands; there simply are no
adjacent farm uses or adjacent agricultural lands. The Hearings Officer also finds that there is no evidence in
the record suggesting that a nearby farm use would benefit from the "agricultural use" of the Subject Property;
including, but not limited to, providing additional feed resources to the Subject Property or the use of the Subject
Property to locate storage or maintenance facilities for the nearby properties.
Finally, the Hearings Officer addresses COLW's "alternative farm uses" argument (February 27, 2024, pages 2 — 3
and March 26, 2024, page 3). The Hearings Officer believes, as suggested by COLW, that consideration of ORS
215.203(2)(a) is a good analysis starting point. ORS 215.203(2)(a) lists/defines "farm use" to include significant
number of farm related activities including (COLW listed many of these potential farm uses as alternative uses at
the Subject Property):
* poultry,
* Iambs,
* mules,
* donkeys,
* fur -bearing animals,
* honeybees,
* eggs,
* hogs,
* pigs,
* dairying,
* other horticultural uses,
* animal husbandry,
* preparation, storage and disposal products raised on such land,
* stabling or training equines,
* propagation, cultivation, harvesting of aquatic, bird and animal species under the jurisdiction of
the State Fish and Wildlife Commission,
* the on -site construction and maintenance of equipment and facilities used for farm
use activities.
This Hearings Officer does not believe every listed "farm use" in ORS 215.203(2)(a) needs to be
individually/independently analyzed as part of every Goal 3 "agricultural land" determination process. The
Hearings Officer finds it is unnecessary for the Applicant to demonstrate (provide documentation and analysis)
that the Subject Property is not "agricultural land" because it is not feasible to use the property, for example, to
use that property as a dairy or for the propagation and harvest of aquatic species. The Hearings Officer finds that
requiring every listed OAR 215.203(2)(a) potential farm use to be analyzed in every case does not represent the
spirit and intention of ORS 215.203 or associated OAR's. The Hearings Officer finds that the goal of ORS 215.213
and associated OAR's is to thoughtfully consider what a reasonable farmer would consider when assessing a
particular property's ability to be profitably farmed.
The Hearings Officer finds that there are common agricultural uses in every geographical area of Oregon and that
the viability of a specific farm use of any property is dependent upon the factors set forth in OAR 660-033-0020.
The Hearings Officer believes that a reasonable farmer is going to consider such factors as soils, topography,
orientation to the sun, transportation access and water access when assessing potential farm uses of a particular
property. The Hearings Officer does not, however, believe a reasonable farmer would take the list of potential
farm uses set forth in ORS 215.203(2)(a) and pragmatically consider the pros and cons of every one of those
activities on a particular Deschutes County property. The reasonable farmer may consider one or more use not
listed in ORS 215.203(2)(a) or fewer uses depending on the site characteristics of a particular property.
LUBA, in Friends of the Creek v. Jackson County, 36 Or LUBA 562 (1999) stated "we do not believe the legislature
intended, by requiring that the land be currently employed 'for the primary purpose of obtaining a profit in money
by raising, harvesting and selling crops,' to require an inquiry into the primary actual motivation of particular land
owners." (See also Cox v. Polk County, 39 Or LUBA 1 (2000)). LUBA concluded, in the 710 Properties Decision, that
the appropriate test is "whether a reasonable farm would be motivated to put the land to agricultural use, for the
primary purpose of obtaining a profit in money."
The Hearings Officer finds the "objective" reasonable farmer approach is relevant in the context of answering the
question: How does a reasonable farmer analyze what potential farm uses are to be considered for a particular
property? The Hearings Officer finds that what use a reasonable farmer would make of the Subject Property is
best demonstrated by historical use of that particular property, the historical uses of nearby and adjacent
properties and general farming trends in the area.
COLW (February 27, 2024, page 2) argues that many of the ORS 215.203(2)(a) listed farm uses "are not dependent
on any particular soil type" and therefore those uses need to be considered. Again, the Hearings Officer believes
the LUBA findings related to the "reasonable farmer" standard would infuse some level of common sense into the
ORS 215.203(2)(a) and OAR 660-033-0020 "agricultural land" analysis. It is conceivable and possible, for example,
that a honeybee farmer or grape grower might find a particular property located in central Oregon to be
appropriate for honeybee/grape farming. However, as a practical matter how long does a property owner have
to wait for a honeybee or grape farmer to "discover" a particular property? Evidence in the record shows that
only one farmer attempted to use the Subject Property as "agricultural land;" that was in 2012 for one month.
There is no evidence that a honeybee farmer, wine grower, or any other person/entity desiring to make use of
the Subject Property for any ORS 215.203(2)(a) use ever expressed interest in farming the Subject Property beyond
the 2012 livestock grazing user.
The Hearings Officer finds that the Applicant in this case was not required to consider all uses listed in ORS 215.203
(2)(a) or by COLW. Rather, the Hearings Officer finds that the Applicant is required to consider only uses that a
"reasonable farmer" for the Subject Property would consider in light of the OAR 660-033-0020(1)(a)(B) factors.
The Hearings Officer does not believe that the Applicant in this case is obligated to independently/individually
analyze and assess each and every one of the ORS 215.203 (2)(a) or COLW listed possible uses.
The Hearings Officer finds it is important to note that OAR 660-033-0021(1)(a)(B) does list one "farm use" that is
required to be considered; "livestock grazing." The Hearings Officer finds that "livestock grazing" is a farm use
that must be considered during each and every "agricultural land" analysis. Further, the Hearings Officer finds
that "livestock grazing" is a farm use that is common in Deschutes County. The Hearings Officer finds "livestock
grazing" to be a use that a reasonable farmer might consider at the Subject Property. The Hearings Officer finds,
in this case, the Applicant provided persuasive evidence that a reasonable farmer would not consider "livestock
grazing" to be a "farm use" that would be entered into for the primary purpose of obtaining a profit in money.
The Hearings Officer, based upon the Preliminary Findings, the evidence and argument in the record, concludes
that the Subject Property is not "agricultural land" and no Goal 3 exception is required.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. To protect natural resources and
conserve scenic and historic areas and open spaces.
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RESPONSE: The Hearings Officer incorporates the findings for DCCP Policies 2.2.3 and 2.7 as additional findings
for this section. The Hearings Officer reiterates that this recommendation relates only to Applicant's request for
a comprehensive plan designation change and a zone change; not to any specific development proposal.
The Hearings Officer notes a parcel of land to the west of the Subject Property has been removed from the
proposal in this case. The removed parcel fronts the Deschutes River with a trail running along the river in this
location. The removal of the parcel reduces potential Goal 5 related impacts (Le., scenic views and trail
interference) that could potentially be created by approval of the application in this case.
The Hearings Officer finds that the proposed comprehensive plan designation and zone are consistent with
preservation of open space, as well as protection of both uses and views of the Deschutes River, while recognizing
that the true "highest and best use" of the Class VII and VIII land is not farmland.
Goal 6, Air, Water and land Resources Quality. To maintain and improve the quality of the air, water
and land resources of the state.
RESPONSE: As specified in Goal 6, the Plan buffers potential residential uses allowed in the MUA zone from
residential uses. The proposal is consistent with Goal 6 because it will not result in any adverse impact on air or
water quality and land resources.
Goal 7, Areas Subject to Natural Disasters and Hazards. To protect people and property from natural
hazards.
RESPONSE: Statewide Planning Goal 7 focuses on natural hazard areas and accommodations needed for them. In
Central Oregon, these are most likely wildfires and steep slopes. Deschutes County has devoted planning to both.
On the Subject Property, the rimrock issue is relevant. Construction along rimrock is protected with setbacks and
no construction is allowed in this area. This Goal has been considered, and future development must be planned
accordingly.
Goal 8, Recreational Needs. To satisfy the recreational needs of the citizens of the state and visitors
and, where appropriate, to provide for the siting of necessary recreational facilities including
destination resorts.
RESPONSE: The Deschutes River is located to the west of the Subject Property. The river has carved a deep canyon
into this portion of the County, creating steep rimrock ledges. Future development must be located back and away
from the rim, allowing the river and riverbanks to be preserved in their natural state, without visual infringement
by private homes.
A dedication to the Oregon State Game Commission for foot travel "adjacent to the east side of the Deschutes
River and between said trail and the center of the Deschutes River" has been defined and perpetually protected
through a dedication by Ronald Cochran, member manager of Applicant. See Exhibit 6, including both the 2017-
37794 surveyed dedication of trail easement, and the 1957 prior dedication. Dedications to OPRD, provides more
recreational benefit to Oregon's citizens, and allows more recreational access to the river without reducing the
visual enjoyment of this resource as a recreational center of the County. The application is consistent with this
Goal.
Goal 9, Economy of the State. To provide adequate opportunities throughout the state for a variety of
economic activities vital to the health, welfare, and prosperity of Oregon's citizens.
49
RESPONSE: The proposal is consistent with Goal 9 because it will not adversely impact economic activities in the
state. Deschutes County development does not generally involve economic development and the commercial and
industrial development at its core, but it can, with a little vision. Applicant, in its Burden of Proof, addressed these
concerns in the following comments:
"Economic stability is central to this Goal. Trend analysis shows the City of Bend is growing quickly and the
current urban area reserve is immediately south and east of the subject property. This is a factor somewhat
unique to this County site. It is foreseeable that future Bend UGB expansion will include the subject
property. It is currently approximately 1500 feet from the SE comer of the subject property, and the Urban
Reserve Area is on the southern property line of the subject property. The property is not comprised of
"agricultural land", so rezoning to MUA-10 is a logical transition of classification of use. Further, by
arranging the homesites in a "T" formation, future development may fill around the homesites as urban
needs for density dictate. This form of transition lends predictability, and so stability to land use patterns
in keeping with concerns of Goal 9.
Goal implementation requires that plans should take such regional conditions into account. Coordinating
regional and local economic plans and programs is an essential part of good governance, as applied to
land use decisions on a case -by -case basis. In this instance, where the EFU zoning designation is error now
that soil classifications are known, a transition to non -resource designation is good economic planning as
envisioned by Statewide Planning Goal 9."
The Hearings Officer concurs with the above -quoted Applicant comments.
Goal 10, Housing. To provide for the housing needs of citizens of the state.
RESPONSE: Like Goal 9, Deschutes County does not traditionally focus on Goal 10 Housing. However, there are
facets of the goal that merit consideration while considering this Application. Applicant, in its Burden of Proof,
provided the following comments:
"Buildable lands for residential use are a particular concern in these times of housing shortages. This
proposal will provide 14 new homesites on land that is currently underutilized because it is improperly
zoned. Deschutes County's Board of County Commissioners and Planning Commission have devoted time
and resources to the search for more buildable lands. This application is an example of using critical
thinking to identify mis-zoned properties that can be opened up for residential use."
The Hearings Officer concurs with the above -quoted Applicant comments.
Goal 11, Public Facilities and Services. To plan and develop a timely, orderly and efficient arrangement
of public facilities and services to serve as a framework for urban and rural development.
RESPONSE: The proposal is consistent with Goal 11 because the proposed plan amendment and zone change will
have little impact upon the provision of public facilities and services to the subject property. As a rural development
pattern, Avion Water Co. and septic systems will serve the parcels proposed under the MUA zone; consistent with
rural lands.
When City of Bend urban density demands reach the Subject Property, transition will be customary to provide
public facilities and services at that time.
Goal 12, Transportation. To provide and encourage a safe, convenient and economic transportation
system.
50
RESPONSE: Deschutes County's Transportation System Plan, incorporated into the Comprehensive Plan and
adopted as Exhibit C to it, is part of the acknowledged County Plan. The proposal is consistent with that plan,
complying with County Level of Service standard D. The proposal is compliant with the TPR as well, and therefore
is also consistent with Goal 12 as demonstrated by the attached, professionally prepared Transportation Analysis.
See Exhibit 4.
Goal 13, Energy Conservation. To conserve energy.
RESPONSE: No known sources of non-renewable energy exist on the Subject Property. Any proposed
development, under the MUA zone will be required to address energy conservation strategies. The proposal is
consistent with this goal because it will have no negative impact on energy use or conservation.
Goal 14, Urbanization. To provide for an orderly and efficient transition from rural to urban land use,
to accommodate urban population and urban employment inside urban growth boundaries, to ensure
efficient use of land, and to provide for livable communities.
RESPONSE: The Hearings Officer incorporates the Preliminary Findings related to Goal 14 (III.A.4 — Oregon
Statewide Planning Goal 14) and the Division 15, Statewide Planning Goals and Guidelines findings related to Goal
14. Further, the Hearings Officer also finds the following Staff (Staff Report, page 37) comments to be credible and
persuasive and adopts these Applicant statements as additional findings for this section.
"Like Goals 9 and 10, this Goal doesn't traditionally utilize significant portions of County Planning
resources. And like Goals 9 and 10, population growth in the County and the cities within it, is changing
that focus. Portland State University's (PSU) Oregon Population Forecast Program provided its latest
datum in March, 2022. That forecast predicted a continued annual growth rate of I-zyo, in contrast to the
national Average Annual Growth Rate ("AAGR") which has been generally declining since 1980. Deschutes
County's population in 2022 is 207,921, at a growth rate of 2.2%. Using conservative growth rates,
Deschutes County's 2050 forecast population is 308,894, over 100,000 its current population, and almost
double what it is now.
Bend's population is also forecast to grow, despite shrinking nationwide trends. Bend's 2022 population is
calculated to be 106,062. In 2047, it is conservatively forecast to have 164,835 people, over half again as
many as it has today. Bend is now 51% of Deschutes County's population. In 2047, it will be 55.1%.
Forecasting housing needs, both Bend and Deschutes County will need more housing. Because this
property is approximately 1500 feet from the northeast edge of Bend's UGB and right on the boundary of
Bend's URA, it's likely to be part of Deschutes County's growth in the immediate future, then part of Bend's
growth after the next legislative UGB expansion. Either way, it's much needed based on the PSU forecasts.
Statewide Planning Goal 14 focuses not only on housing supply, but also "an orderly and efficient transition
from rural to urban...." This site's optimal location, just outside of Bend's current urban boundary, makes
it an excellent candidate for rezoning, particularly where we now know the soil is not suitable for farming.
It's not really "agricultural land." It is properly exception land, ideally developed in a less sprawled
configuration in preparation for a more dense housing pattern in the future. These factors make it an
excellent candidate for planned development in MUA-10 zoning.
This proposal meets the needs set out in Statewide Planning Goal 14. In summary, the proposal is
consistent with Goal 14 for the following reasons:
51
1. The proposal does support a likely, though not certain, eventual transition from rural to urban
land use that responds to identified needed lands;
2. The proposal represents an orderly growth pattern that eventually will efficiently enhance and
utilize public facilities and services;
3. The proposal will ultimately result in the maximum efficiency of land uses on the fringe of the
existing urban area;
4. The subject property has been found to be not predominantly agricultural land as defined in
OAR 660-033-0020, and
5. The proposal will promote compatibility with surrounding urban uses and will not adversely
impact any nearby commercial agricultural uses because there are none.
The Applicant's responses demonstrate compliance with the applicable Goals."
The Hearings Officer finds Goal 14 has been satisfactorily addressed by Applicant and that the Applicant's proposal
is consistent with Goal 14 and no exception is required/necessary.
Division 33 - Goal 3 - Agricultural Lands
OAR 660-015-0000, Purpose Statewide Planning Goals and Guidelines #1 through #14
(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.
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 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as
predominantly Class PIV soils in Western Oregon and I -VI soils in Eastern Oregon 12;
(8) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a),
taking into consideration soil fertility; suitability for grazing; climatic conditions;
existing and future availability of water for farm irrigation purposes; existing land use
patterns; technological and energy inputs required; and accepted farming practices;
and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby
agricultural lands.
FINDING: The Hearings Officer incorporates the Preliminary Findings related to Goal 3 (III.A.5 —Oregon Statewide
Planning Goal 3) and 710 Properties Decision (III.A.7. —710 Properties Decision) as additional findings for this Goal
3 section. The Hearings Officer also incorporates the findings for Deschutes County Comprehensive Plan
("DCCP"), Chapter 2, Resource Management, Section 2.2, Agricultural Lands as additional findings for this section.
iz 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.
52
The Applicant's basis for not requesting an exception to Goal 3 is that the Subject Property is not "agricultural
land." The Hearings Officer concurred with Applicant that the Subject Property is not "agricultural land."
(b) Land in capability classes other than I-IV/1-VI that is adjacent to or intermingled with lands in
capability classes I-IV/1-VI within a farm unit, shall be inventoried as agricultural lands even
though this land may not be cropped or grazed;
FINDING: The Hearings Officer incorporates the Preliminary Findings related to Goal 3 (III.A.5 — Oregon Statewide
Planning Goal 3) and 710 Properties Decision (III.A.7. —710 Properties Decision) as additional findings for this Goal
3 section. The Hearings Officer also incorporates the findings for Deschutes County Comprehensive Plan
("DCCP"), Chapter 2, Resource Management, Section 2.2, Agricultural Lands as additional findings for this section.
While the Applicant did not provide a specific response to this subsection of OAR 660-033-0020 the Applicant did
provide a listing of nearby and adjacent lands in the context of uses made of those lands. There is no evidence in
the record of this case indicating that the Subject Property was used along with or intermingled as a farm unit
with any adjacent or nearby land. The Hearings Officer finds that the Subject Property is not intermingled with
lands in capability classes I — VI as a "farm unit."
(c) "Agricultural Land" does not include land within acknowledged urban growth boundaries or
land within acknowledged exception areas for Goal 3 or 4.
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)(8). 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 1-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).
(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 Preliminary Findings related to Goal 3 (III.A.5 — Oregon Statewide
Planning Goal 3) and 710 Properties Decision (III.A.7. —710 Properties Decision) as additional findings for this Goal
3 section. The Hearings Officer also incorporates the findings for Deschutes County Comprehensive Plan
("DCCP"), Chapter 2, Resource Management, Section 2.2, Agricultural Lands as additional findings for this section.
(5)(a) More detailed data on soil capability than is contained in the USDA Natural Resources
Conservation Service (MRCS) soil maps and soil surveys may be used to define agricultural land.
53
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 the Preliminary Findings related to Goal 3 (III.A.S — Oregon Statewide
Planning Goal 3) and 710 Properties Decision (III.A.7. —710 Properties Decision) as additional findings for this Goal
3 section. The Hearings Officer also incorporates the findings for Deschutes County Comprehensive Plan
("DCCP"), Chapter 2, Resource Management, Section 2.2, Agricultural Lands as additional findings for this section.
The Hearings Officer also finds the Staff Report statements/comments/maps below are credible and relevant to
this section. The Hearings Officer incorporates the following Staff (Staff Report, page 44)
statements/comments/maps as additional findings for this section:
"The soil study prepared by Brian T. Rabe, CPSS, WWS of Cascade Earth Sciences, provides more detailed soils
information than contained in the NRCS Web Soil Survey. NRCS sources provide general soils data for large
units of land. The soil study provides detailed and accurate information about individual parcels based on
numerous soil samples taken from the subject property. The soil study is related to the NCRS Land Capability
Classification ("LLC) system that classifies soils class 1 through Vlll. An LCC rating is assigned to each soil type
based on rules provided by the NRCS.
The NRCS mapping for the subject property is shown below in Figure 2. According to the NRCS Web Soil Survey
tool, the subject property contains +/- 31 percent 38B soils, +-58 percent 58C soils, and +/- 11 percent 106E
soils.
Figure 2 — NRCS Soil Mapping for Subject Property
54
The soil study finds the soil types on the subject property vary from the NRCS identified soil types. Staff notes
the soil study was prepared before the most recent property line adjustment. For this reason, the study area
doesn't include the northwestern corner of the property (+/--3 acres). Nevertheless, the topography of this area
appears to match the area directly south". which Mr. Rabe classified as "rock outcrop — major" with a Class
Vlll rating in the soil study. Given the similarities of the terrain shown in the Applicant's topographical map,
staff believes it is reasonable to presume this area does not need further review as part of an amended soil
study.
The soil types described in the soil study are shown below as Figure 3. Additionally, the Summary and
Conclusions sections of the soil study states:
'The purpose of this report is to present the results of an assessment to verify and, where necessary, refine
the soils, map units, and boundaries mapped on the Site and to determine whether the soils on the Site
meet the land capability classification criteria for a non -resource zoning designation. The published soil
survey information was reviewed and direct observations of soil conditions were made at representative
locations across the Site. CES has determined that the information from the published soil survey was
generally consistent with observations on the ground with boundary refinements limited to delineating
components of the complexes mapped by the NRCS. CES has determined that 41.35 acres or 65.8 percent,
of the Site consists of Class VI! and Class Vlll soils. Since the Site is predominantly Class VII and Class Vlll
soils and does not otherwise meet the criteria for further consideration as agricultural land, the Site meets
the soils criteria for consideration of a non -resource zoning designation.'
The soil study concludes that 65.8% of +/--63 acres of the subject property consists of Class Vll and Class Vlll
soils. As noted above, staff believes it is reasonable to assume the northwestern corner of the property is also
comprised of Class Vll and Class Vlll soils, which potentially increases the percentage of Class VII and Class Vlll
soils to 66.6%. The submitted soil study is accompanied in the submitted application materials by
correspondence from DLCD. The DLCD correspondence confirms that the soil study is complete and consistent
with the reporting requirements for agricultural soils capability as dictated by DLCD. Based on Mr. Rabe's
qualifications as a certified Soil Scientist and Soil Classifier, staff finds the submitted soil study to be definitive
and accurate in terms of site -specific soil information for the subject property.
13 Ref. Figure 1 above.
55
56
(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 Preliminary Findings related to Goal 3 (III.A.5 — Oregon Statewide
Planning Goal 3) and 710 Properties Decision (III.A.7. —710 Properties Decision) as additional findings for this Goal
3 section. The Hearings Officer also incorporates the findings for Deschutes County Comprehensive Plan
("DCCP"), Chapter 2, Resource Management, Section 2.2, Agricultural Lands as additional findings for this section.
The Applicant requested approval of a non -resource plan designation on the basis that the Subject Property is
not defined as agricultural land. In prior findings the Hearings Officer concluded, based upon the evidence in the
record, that the Subject Property is not "agricultural land."
(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 Applicant submitted a soil study dated December 19, 2018. The soils study was submitted following
the ORS 215.211 effective date. The Applicant also submitted acknowledgement from Hilary Foote, Farm/Forest
Specialist with the DLCD, dated November 14, 2022, that the soil study is complete and consistent with DLCD's
reporting requirements. The Hearings Officer finds this criterion to be met based on the submitted soil study and
confirmation of completeness and consistency from DLCD.
(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 Applicant has provided a DLCD certified soil study as well as NRCS soil data. The Hearings Officer
finds the Applicant has demonstrated compliance with this provision.
IV. CONCLUSION & RECOMMENDATION
The Hearings Officer finds that the application to change the Comprehensive Plan designation from AG to RREA
and Zoning for the Subject Property from EFU to MUA complies with all relevant approval criteria. The Hearings
Officer recommends approval of the Applicant's requested Comprehensive Plan and Zone change requests.
DESCHUTES COUNTY HEARINGS OFFICER
?�4ee7 %`24W44P
Gregory J. Frank
Deschutes County Hearings Officer
57
EXHIBIT "I" t0 Ordinance 2026-009
After recording return to:
Deschutes County Community Development
117 NW Lafayette Avenue
Bend, OR 97703
CONDITIONS OF APPROVAL AGREEMENT
AND RESTRICTIVE COVENANT
This conditions of approval agreement is made this day of , 2026 by
Destiny Court Properties LLC, an Oregon limited liability company (hereinafter "Destiny
Court") and Deschutes County, a political subdivision of the State of Oregon (hereinafter
"County").
RECITALS
WHEREAS, Destiny Court sought approval of a plan amendment from Agricultural (AG)
to Rural Residential Exception Area (RREA) and zone change from Exclusive Farm Use —
Tumalo/Redmond/Bend subzone (EFU-TRB) to Multiple Use Agricultural (MUA-10) in File
Nos. 247-22-000436-ZC and 247-22-000443-PA for the property described on Exhibit A (the
"Property"), a copy of which is attached and incorporated by reference herein; and
WHEREAS, the applicant in the land use review process asked the County to impose a
condition of approval on future development of the Property that will apply while the Property is
zoned MUA-10: and
WHEREAS, the Board of Commissioners approved the land use applications and
imposed the condition of approval requested; and
WHEREAS, the condition of approval requires that an agreement be recorded that
memorializes the condition of approval and applies it to the rezoned property:
NOW THEREFORE, the parties agree as follows:
Any future subdivision shall be limited to equivalent density of 1 lot per 10-acres, which
can be accomplished through use of a cluster or planned unit development for a minimum
lot size of 2-acres with associated 8-acre reservation of open space. This condition shall
be required so long as the property remains outside of an urban growth boundary.
Page i of 4 - Cmiditions of Approval Agreeinent
145226\295212\50063046.v2
DATED this day of , 20_.
COUNTY BOARD OF COMMISSIONERS OF DESCHUTES
COUNTY
PHIL CHANG, Chair
ANTHONY DeBONE, Vice -Chair
PATTI ADAIR, Commissioner
ATTEST:
Recording Secretary
STATE OF OREGON )
) SS.
COUNTY OF DESCHUTES )
This instrument was acknowledged before me on , 20_ by Phil Chang,
Anthony DeBone, and Patti Adair, the above -named Board of County Commissioners of
Deschutes County, Oregon and acknowledged the foregoing instrument on behalf of Deschutes
County.
Notary Public
Print Name
My commission expires
Page 2 of 4 - Conditions ofApproval Agreement
145226\295212\50063046.v2
DATED this day of 20_.
DESTINY COURT PROPERTIES LLC
By: Robert Cochran
Its:
STATE OF OREGON )
) SS.
COUNTY OF DESCHUTES )
This instrument was acknowledged before me on , 20 by Ronald
Cochran as of Destiny Court Properties LLC, an Oregon limited liability
corporation.
Notary Public
Print Name
My commission expires
Page 3 of 4 - Conditions ofApproval Agreement
145226\295212\50063046.Q
EXHIBIT A
PROPERTY DESCRIPTION
(TAX LOT 100, MAP 17-12-07)
A TRACT OF LAND IN THE NORTHEAST QUARTER OF SECTION 7, TOWNSHIP 17 SOUTH,
RANGE 12 EAST OF THE WILLAMETTE MERIDIAN, DESCHUTES COUNTY, OREGON, A
PART OF THAT CERTAIN TRACT OF LAND CONVEYED TO DESTINY COURT PROPERTIES,
LLC, AN OREGON LIMITED LIABILITY COMPANY, IN DOCUMENT NO. 2021-61291,
DESCHUTES COUNTY OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF SAID DESTINY COURT PROPERTIES,
SAID NORTHWEST CORNER BEING ON THE CENTERLINE OF THE DESCHUTES RIVER AND
BEARING, ALONG THE NORTH LINE OF SAID SECTION 7, S89°35'43"E 432.83 FEET FROM
THE NORTH QUARTER CORNER OF SAID SECTION 7; THENCE CONTINUING ALONG SAID
NORTH LINE, S89°35'43"E 425.47 FEET TO A POINT; THENCE DEPARTING SAID NORTH LINE,
S13011'48"W 239.62 FEET TO A POINT; THENCE S3°48'59"E 152.39 FEET TO THE TRUE POINT
OF BEGINNING; THENCE S89°52'26"W 298.75 FEET TO A POINT; THENCE SO°00'00"E 366.21
FEET TO A POINT; THENCE S5°57'50"W 178.47 FEET TO A POINT; THENCE S11°00'43"W
127.94 FEET TO A POINT; THENCE S 15°48'44"W 92.60 FEET TO A POINT ON SAID
DESCHUTES RIVER CENTERLINE; THENCE ALONG SAID CENTERLINE, S 16°08' 19"W 179.19
FEET TO A POINT ON THE SOUTH LINE OF THE NORTHWEST QUARTER OF THE
NORTHEAST QUARTER OF SAID SECTION 7; THENCE ALONG SAID SOUTH LINE,
S89038'02"E 914.03 FEET TO THE NORTHEAST SIXTEENTH (NE1/16) CORNER OF SAID
SECTION 7; THENCE ALONG THE WEST LINE OF THE SOUTHEAST QUARTER OF THE
NORTHEAST QUARTER (SEI/4 NE1/4) OF SAID SECTION 7, SO' 12'11"W 1320.01 FEET TO THE
CENTER EAST SIXTEENTH CORNER (CE1/16) OF SAID SECTION 7; THENCE ALONG THE
EAST -WEST CENTERLINE OF SAID SECTION 7, S89037'30"E 1318.35 FEET TO THE EAST
QUARTER CORNER OF SAID SECTION 7, BEING THE SOUTHEAST CORNER OF PARCEL C
OF PARTITION PLAT 1996-55; THENCE ALONG THE EASTERLY LINE OF SAID PARCEL C
THE FOLLOWING COURSES: N0008'26"E 1080.22 FEET; THENCE N89°37'33"W 50.00 FEET;
THENCE 193.64 FEET ALONG THE ARC OF A 50-FOOT RADIUS CURVE TO THE RIGHT,
THROUGH A CENTRAL ANGLE OF 221053'48" (THE CHORD OF WHICH BEARS N32°08'04"W,
93.39 FEET); THENCE NO°07'29"E 634.22 FEET TO A POINT ON THE EASTERLY LINE OF SAID
DESTINY COURT PROPERTIES, LLC TRACT; THENCE ALONG SAID EASTERLY LINE,
N89036'12"W 1684.60 FEET; THENCE N3d48'59"W 461.08 FEET THE TRUE POINT OF
BEGINNING.
CONTAINING A TOTAL AREA OF 65.11 ACRES, MORE OR LESS.
Conditions ofApproval Agreement —Exhibit A
145226\295212\50063046.v2
wTES CO
oG2< BOARD OF
COMMISSIONERS
MEETING DATE: April 15, 2026
SUBJECT: Second Reading of Ordinance No. 2026-009 rezoning property at 19975 Destiny
Court, Bend from Exclusive Farm Use to Multiple Use Agricultural
RECOMMENDED MOTIONS:
1. Move approval of second reading of Ordinance No. 2026-009 by title only.
2. Move adoption of Ordinance No. 2026-009.
BACKGROUND AND POLICY IMPLICATIONS:
In January 2025, the Board of County Commissioners approved a Comprehensive Plan
Amendment from Agricultural to Rural Residential Exception Area and a zone change from
Exclusive Farm Use to Multiple Use Agricultural for a property located at 19975 Destiny Court,
Bend. This decision was appealed to the Oregon Land Use Board of Appeals and ultimately
remanded back to the County for further review.
On January 28, 2026, the Board held a remand hearing and on March 4, 2026, voted 2 - 1 to
approve the applicant's request. The Board conducted first reading of Ordinance No. 2026-
009 on April 1 st will consider second reading on April 15th. If approved, the ordinance will
take effect 90 days from the date of adoption.
BUDGET IMPACTS:
None
ATTENDANCE:
Caroline House, Senior Planner
Stephanie Marshall, Senior Assistant Legal Counsel
Anthony Raguine, Principal Planner
Will Groves, Planning Manager
�v-� ES
w
MEMORANDUM
DATE: April 6, 2026
TO: Board of County Commissioners ("Board")
FROM: Caroline House, Senior Planner
RE: Second Reading of Ordinance No. 2026-009 - Destiny Court PA/ZC Remand
On April 15, 2026, the Board will consider a second reading of Ordinance No. 2026-009 approving a
Comprehensive Plan Amendment and Zone Change request.
1. BACKGROUND
The subject property is assigned address 19975 Destiny Court, Bend, OR 97703, and is located in
Deschutes County's jurisdiction between the City of Bend and the Unincorporated Community of
Tumalo.
In 2022, Destiny Court Properties, LLC (the "Applicant") initiated several land use applications. These
included the subject Comprehensive Plan Amendment to change the designation of this property
from Agricultural ("AG") to Rural Residential Exception Area ("RREA") and a Zone Change to rezone
this property from Exclusive Farm Use ("EFU") to Multiple Use Agricultural ("MUA-10")'. In January
2025, the Board voted 2-1 to approve the Comprehensive Plan Amendment and Zone Change
request, which aligned with the Hearings Officer's Recommendation. The County's decision was
appealed to the Oregon Land Use Board of Appeals ("LUBA") by Central Oregon LanclWatch ("COLW")
and LUBA remanded the County's decision back for further review (ref. LUBA No. 2025-015).
On December 23, 2025, the Applicant initiated a remand application (ref. File No. 247-25-000759-A),
and the Board held a remand hearing on January 28, 2026. The Board conducted deliberations on
March 4, 2026, and voted 2-1 to approve the Applicant's request. First reading of Ordinance No.
2026-009 was completed by the Board on April 1, 2026.
1 Ref. File Nos. 247-22-000436-ZC & 247-22-000443-PA.
z LUBA's Final Opinion and Order was not appealed to the Court of Appeals.
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P,O. Box 6005, Bend, OR 97708-6005
(541) 388-6575 (ia cdd@deschutes.org @ www.deschutes.org/cd
II. NEXT STEPS
Following completion of the second reading, the ordinance will go into effect 90 days later, on July
14, 2026, unless the County's decision is appealed.
III. 120-DAY REVIEW CLOCK
Remand applications have a 120-day review clock', and this review clock cannot be extended in
most circumstance s4. Therefore, the 120`' day on which the County must take final action on this
application is April 22, 2026.
VI. RECORD
The record for this remand application is as presented at the following Deschutes County
Community Development Department website:
https•//www deschutes.org/cd/page/247-25-000759-remand-destiny-court-properties-Ilc-
comprehensive-plan-amendment-zone-change
Attachment:
1) Ordinance 2026-009 and Exhibits
Exhibit A: Legal Description
Exhibit B: Proposed Comprehensive Plan Amendment Map
Exhibit C: Proposed Zone Change Map
Exhibit D: Comprehensive Plan Section 23.01.010, Introduction
Exhibit E: Comprehensive Plan Section 5.12, Legislative History
Exhibit F: Decision of the Board of County Commissioners on Remand
Exhibit G: Decision of the Board of County Commissioners on Original Application
Exhibit H: Hearing's Officer Recommendation
Exhibit I: Conditions of Approval Agreement
3 Most land use applications have a 150-day review clock, and the Applicant can extend the clock for up to
215 days or waive the review clock entirely.
4 Ref. ORS 215.435(2)(b).
247-25-000759-A Page 2 of 2