Loading...
HomeMy WebLinkAboutOrdinance 009 - Redesignate prop - Ag to RRDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of February 6, 2013 Please see directions for completing this document on the next page. DATE: January 24, 2013 FROM: Paul Blikstad Department CDD Phone # 6554 TITLE OF AGENDA ITEM: Consideration of Second Reading by Title Only, and Adoption of Ordinance 2013-009, Amending Title 23, the Deschutes County Comprehensive Plan, to Redesignate Certain Property from Agricultural to Rural Residential Exception Area. PUBLIC HEARING ON THIS DATE? No BACKGROUND AND POLICY IMPLICATIONS: The Oregon Department of State Lands applied for a plan amendment and zone change on the subject property to change the comprehensive plan designation from Agriculture to Rural Residential Exception Area and the zoning designation from Exclusive Farm Use to Multiple Use Agriculture. The applications went before the County Hearings Officer who has recommended approval of the proposed changes. The Board called up the applications for review and held public hearings on the applications on September 24,2012 and December 3, 2012. The Board orally approved the applications at the December 17,2012 Board meeting. Ordinance 2013-009 and 2013-010 adopt the changes approved by the Board. Ordinance 2013-009 adopts the change to the County's Comprehensive Plan and Plan Map. Ordinance 2013-010 adopts the change in the zoning map designation. The findings for both ordinances are attached to Ordinance 2013-009 and incorporated by reference in Ordinance 2013-010. FISCAL IMPLICATIONS: Costs for mailing of the ordinances and exhibits to all parties as required by County Code and state land use laws. RECOMMENDATION & ACTION REQUESTED: Move and conduct second reading by title only. Move adoption of Ordinance 2013-009. ATTENDANCE: Paul Blikstad, Nick Lelack DISTRIBUTION OF DOCUMENTS: Copy to Paul Blikstad. /II REVIEWED ~ LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County * Code Title 23, the Deschutes County Comprehensive * ORDINANCE NO. 2013-009 Plan, to Change the Designation of Certain Property * from Agriculture to Rural Residential Exception * Area. * WHEREAS, the Oregon Department of State Lands applied for a Comprehensive Plan Amendment to Deschutes County Code ("DCC") Title 23, to change the designation of certain property from Agriculture to Rural Residential Exception Area; and. WHEREAS, after duly notice hearings, the Deschutes County Board of Commissioners approved the comprehensive plan map; 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", with both exhibits attached and incorporated by reference herein, from Agriculture to Rural Residential Exception Area. Section 2. AMENDMENT. DCC Title 23, Deschutes County Comprehensive Plan is amended to read as described in Exhibit "C", attached and incorporated by reference herein, with new language underlined. r f 1 I Ii ! PAGE 1 OF 2 -ORDINANCE NO. 2013-009 -------- Section 3. FINDINGS. The Board adopts as its findings in support of this decision, the Decision of the Board, attached as Exhibit "0" and incorporated by reference herein. Dated this of , 2013 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ALAN UNGER, Chair TAMMY BANEY, Vice Chair ATTEST: Recording Secretary ANTHONY DeBONE, Commissioner Date of 15t Reading: day of _____, 2013. Date of 2nd Reading: __day _____,2013. Record of Adoption Vote: Commissioner Yes No Abstained Excused Alan Unger Tammy Baney Anthony DeBone Effective date: __day _____,2013. PAGE 2 OF 2 -ORDlNANCE NO. 2013-009 Exhibit "A" All that portion of Section 11, Township 18 South, Range 12 East of the Willamette Meridian, Deschutes County, Oregon lying west of the easterly extent of the following easement: Commencing at the North Quarter corner of Section 11; thence South 89° 27' 02" East along the northern line of said Section 11, a distance of 1490.00 feet, more or less, to the easterly line of an existing PG&E Gas Transmission Company Northwest natural gas pipeline easement; thence South 18°22'12" West along the easterly line of said easement, 5558.08 feet, more or less, to the South line of said Section 11, also excluding that portion of Section 11 North of the southerly right of way of Stevens Road. Taxlot RREA AG 18-12-00-00-01800 Plan Amendment from AG Agriculture (AG) to Residential Exception Area (RREA) Rural RREA Road Dept Deschutes County Knott Landfill AG Taxlot 18-1 2-00-00-01700 Legend ClProposed Plan Amendment Boundary Bend City Limit Comprehensive Plan AG -Agriculture RREA -Rural Residential Exception Area URA -Urban Reserve Area PROPOSED COMPREHENSIVE PLAN MAP Exhibit "B" to Ordinance 2013-009 ® 1O~1i2ii5~O5iii50iI!0!!!!!!!!!!~''0!i0i;0iiiiiiii,500M Feet January 10. 2013 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Alan Unger, Chair Tammy Baney, Vice Cha ir Tony DeBone , Commissioner ATTEST: Recording Secretary Dated this __day of February, 2013 Effective Date: May _~2013 Chapter 23.01 COMPREHENSIVE PLAN 23.01.010. Introduction. 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. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-005, are incorporated by reference herein. D. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-012, are incorporated by reference herein. E. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2012-016, are incorporated by reference herein. F. The Deschutes County Comprehensive Plan amendments, adopted by the Board in Ordinance 2013-002, are incorporated by reference herein. Q:.__ TheJ)eschute!L~Q_unty Coml2@h~ns ivt;Y.lan lliJl~.l1d meqL adopt~~lliJ:b~B()arQ...lTl.Jkgbillnc~ 2013-009. is incorporated bv reterence herein. (Qrc:l2JH3-002J2, 20U;_Ord. 2013-002 §1, 2013; Ord. 2012-016 §1, 2012; Ord. 2012-013 §1, 2012; Ord. 2012-005 §1, 2012; Ord. 2011-027 §I through 12,2011; Ord.2011-003 §3, 2011) Click here to be directed to the Comprehensive Plan (ht:!Q;!lwww.deschutes.orgicompplan) Page 1 of 1-EXHIBIT C to ORDINANCE 2013-009 RE~ LEGAL COUNSEL For Recording Stamp Only DECISION OF DESCHUTES COUNTY BOARD OF COMMISSIONERS FILE NUMBER: PA-11-7, ZC-11-2 APPLICANTI PROPERTY OWNER: State of Oregon Department of State Lands c/o Douglas Parker, Asset Planner 775 Summer Street NE, Suite 100 Salem, OR 97301 REQUEST: The applicant requests approval of a Plan Amendment to change the designation of certain property from Agriculture to Rural Residential Exception Area, and a Zone Change from Exclusive Farm Use (EFU-TRB) to Multiple Use Agricultural (MUA-10), for approximately 380 acres. STAFF REVIEWER: Paul Blikstad, Senior Planner HEARING DATES: September 24,2012 and December 3,2012 RECORD CLOSED: December 3, 2012 I. APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code, the County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zone Chapter 18.32, Multiple Use Agricultural Zone Chapter 18.136, Amendments Title 23 of the Deschutes County Code, Deschutes County Comprehensive Plan Chapter 2, Resource Management Chapter 23.64, Transportation System Plan Oregon Administrative Rules, Chapter 660 Division 12, Transportation Planning OAR 660-012-0060, Plan and Land Use Regulation Amendments Division 15, Statewide Planning Goals and Guidelines II. FINDINGS OF FACT: Exhibit "Off to Ordinance 2013-009 Page 1 of7 The Board of County Commissioners ("Board") adopts the Hearings Officer's Findings of Fact, except as specifically amended as follows. F. Proposal: The applicant is requesting approval of a plan amendment to change the comprehensive plan designation on approximately 380 acres of the subject property from Agriculture to Rural Residential Exception Area; and a zone change from Exclusive Farm Use (Tumalo/Redmond/Bend subzone) to the Multiple Use Agricultural (MUA-10) zone. The applicant is not requesting a goal exception to Statewide Planning Goal 3, Agricultural Land. The applicant is instead relying on the premise that the portion of the subject property west of the east boundary of the gas pipeline easement is predominantly not agricultural land, based on the Natural Resources Conservation Service Soil Survey Map, and a soils analysis conducted by the applicant's soil scientist. H. Procedural History: The subject property (tax lot 1800) was approved for three previous land use applications as follows: CU-97-132, A conditional use permit to establish a mainline valve and blowdown assembly for an existing natural gas pipeline. This application was approved in January of 1998, mailed out on January 26, 1998. The applicant was Pacific Gas Transmission Company. CU-04-21, A conditional use permit to establish a utility facility consisting of an electric substation. The applicant was Central Electric Cooperative 1 • PS-09-4, Department of State Lands sign-off for a renewal of Central Electric Cooperative's power line easement across State lands. The applicant was Central Electric Cooperative. In addition to the procedural hearing described in the Hearings Officer's decision, the Board adds that the Hearings Officer's written recommendation for approval was mailed out on July 10,2012. Because the subject property is designated agricultural land, a de novo hearing in front of the Board is required under Deschutes County Code 22.28.030(C). The de novo hearing in front of the Board was conducted on September 24,2012. The oral portion of the hearing was closed on that same day, and the written record was left open until October 10, 2012 for additional comments/submittals. A rebuttal period for the applicant was left open until October 26, 2012. During the applicant's rebuttal period, the applicant submitted what the Planning Division determined was new information. Based on that submittal, the Board determined that reopening the record was necessary to allow all parties to review and comment on the new information. The Board signed Order No. 2012-038, reopening the public hearing, but limiting it only to testimony regarding soils classifications. The Board conducted the reopened hearing on December 3, 2012. The oral and written records were closed at the end of the reopened hearing. The Board conducted deliberations for a decision on the proposed plan amendment/zone change applications on December 17, 2012. The Board upheld the Hearings Officer's decision and approved the request, subject to staff preparing a written decision for the Board's review at a later meeting. This decision constitutes the final decision by the Board in this matter. 1 This electric substation was never constructed. The subject property remains undeveloped. Exhibit "0" to Ordinance 2013-009 Page 2 of7 III. CONCLUSIONS OF LAW: The Board adopts the Hearings Officer's Conclusions of Law, except as specifically amended herein. 2. 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. Chapter 2, Resource Management Section 2.2, Agricultural Lands Polices 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: Newland raised questions about whether the County must adopt a nonagricultural land designation in the Comprehensive Plan, and perhaps an associated zone under the development code before the application can be approved. Those concerns appeared to be most closely associated with this policy. The record shows that no such Comprehensive Plan designation or zone exists currently. The recently adopted policy acknowledges this fact and provides a general directive that requires the County to at least consider such a Comprehensive Plan designation at some point in the future. The policy sets no deadline for doing so. The policy also does not dictate any consequences for failing to do so. More specifically, from a statutory construction perspective, the policy does not state that quasi-judicial Comprehensive Plan amendment applications cannot be processed and approved until such a non-resource designation is established. To read this requirement into the policy would violate the most basic rule of construction which is to not add words or phrases which have been omitted from the text. ORS 174.010. This being the case, the Hearings Officer found and the Board concurs that the current i I i application presents essentially the same facts as were present in PA-07-1 (Pagel) in which Hearings Officer Karen Green found that a proposal to amend land from "Agriculture" to "Rural Residential Exception Area" could be allowed regardless of the fact that the applicant was not seeking a Goal 3 exception, and that no non-resource Comprehensive Plan designation existed to accommodate land that was determined to be nonagricultural. The Hearings Officer found that the current circumstances with regard to the requirements of the Comprehensive Plan are essentially the same as when Hearings Officer Green reached her decision in 2007 on Pagel. Although the above policy indicates the desired direction for the County, that work has not yet been accomplished, and the Board finds that it was not intended to impose a moratorium on the type of quasi-judicial Comprehensive Plan amendment applications such as the one currently proposed. Exhibit "0" to Ordinance 2013-009 Page 3 of7 OAR 660-033-0020, Agricultural Land definitions The applicant testified and included written materials stating that the zone change is justified because the soils on the subject property are predominantly Class VII and VIII. The reopened hearing was allowed specifically to obtain additional testimony on the soils classifications. The question here is whether the 380 acres proposed for a rezone meets the state definition of "agricultural land.» OAR 660-033-0020(1)(a) provides the definition of "agricultural land" which includes the three following categories: (A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I-IV soils in Western Oregon and I-VI soils in Eastern Oregon; (B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2), taking into consideration soil fertility, suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices; and (C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands OAR 660-033-0020(1)(a)(A) Agricultural Land under this section of the OAR's lists Class I-VI soils as being agricultural land in Eastern Oregon.2 The subject property was determined by Staff, based on the Natural Resource Conservation Service map, to have four (4) soil types, which are listed as follows: 58C. Gosney-Rock outcrop-Oeskamp complex, 0 to 15% slopes 38B, Oeskamp-Gosney complex, 0 to 8% slopes 157C, Wanoga-Fremkle-Rock outcrop complex, 0 to 15% slopes 36A, Oeskamp loamy sand, 0 to 3% slopes The 58C soil is found to have the following composition: 50% Gosney soil and similar inclusions 25% Rock outcrop 20% Oeskamp and similar inclusions 5% contrasting inclusions The 38B soil is found to have the following composition: 50% Oeskamp soil and similar inclusions 35% Gosney soil and similar inclusions 15% contrasting inclusions The 157C soil is found to have the following composition: 35% Wanoga soil and similar inclusions 30% Fremkle soil and similar inclusions 20% Rock outcrop 2 Eastern Oregon is defined in OAR 660-033-0020(5}: "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 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. Exhibit "0" to Ordinance 2013-009 Page 4 of7 15% contrasting inclusions The 36A soil is found to have the following composition: 85% Oeskamp soil and similar inclusions 15% contrasting inclusions Planning Staff requested, prior to the staff report being written, that Geographic Information Systems Specialist Tim Berg calculate the acreages of each soil type within the approximately 380-acre portion of the OSL property. Those calculations were as follows: 38B -203.83 acres 58C -153.13 acres 157C -3.98 acres 36A -2.06 acres Total 363 acres Testimony at the December 4,2012 reopened hearing included input from Thor Thorson, Acting NRCS State Soil Scientist. Mr. Thorson indicated there are three types of soils classification measures which can be taken to determine whether land falls within different classes of soils. These three measures are listed as follows: • Most limiting soil component • Most dominant soil component • Weighted average of major soil components The most limiting soil component assigns the total area of a soil complex to the lowest soil classification. In the case of the subject plan amendment/zone change request, the 38B soil complex has the Gosney soil (class 7 -71.34 acres) as the lowest classification; the 58C soil has the Rock outcrop (class 8 -38.28 acres) as the lowest classification; and the 157C soil complex has the Rock outcrop (class 8 -.79 acres) as the lowest classification. The combined acreages for these three soil types are 110.41 acres, which is approximately 30% of the 363 acres. The property would thus be considered agricultural land, as more than 50% of it would be class 6 soils under this method. The most dominant soil component assigns the total area of a soil complex to the soil type that has the highest percentage of soil classification. In the case of the subject plan amendment/zone change request, the 38B soil complex has the Oeskamp soil (class 6) with the highest percentage within the soil complex (203.83 acres); the 58C soil complex has the Gosney soil (class 7) with the highest percentage within the soil complex (153.13 acres); the 157C soil has the Wanoga soil (class 6) with the highest percentage within the soil complex (3.98 acres); and the 36A soil is all class 6 (2.06 acres). The combined total of the soils with the dominant soil type class 6 is 209.87 acres, which is approximately 58% of the area of the property. The property would thus be considered agricultural land, as more than 50% of it would be class 6 soils under this method. The weighted average of major soil components assigns a percentage/acreage to each soil type within the complex based on the NRCS soil breakdowns. In the case of the subject plan amendment/zone change request, the break downs are listed as follows: I I Soil No. Soil type area Class 6 soils Class 7 soils Class 8 soils %Class 7/8 36A 2.06 acres 2.06 acres 0% Exhibit "on to Ordinance 2013-009 Page 50f7 38B 203.83 acres 101.91 acres 71.34 acres 35% 58C 153.13 acres 30.62 acres 76.56 acres 38.28 acres 75% 157C 3.98 acres 2.58 acres .79 acre .02% 363 acres 137.17 acres 147.9 acres 39.07 acres 51.5% I I I The Board finds that it has the discretion to choose between the three methods presented by Mr. Thorson. The Board finds that the weighted average is the best and most accurate method for determining soils classifications, as it takes into account individual soil types within each complex. The weighted average method determined in the above case that more than 50% of the subject property was class 7 and 8 soils. Based on this figure, the subject property is not agricultural land, as the predominate soil types on the subject property are class 7 and 8 soils. Each of the above three methods for determining soil classifications is based on the Web Soil Survey of the Natural Resources Conservation Service. Specifically the mapping that was done for Deschutes County under the Soil Survey of the Upper Deschutes River Area, Oregon. The Board notes that the Borine/Sage West LLC soils investigation submitted with the applications, originally dated July 6, 2010, and amended (July 26, 2011) to include a reduced area for the plan amendment/zone change request stated that 56% of the subject property was land capability class 7 and 8 soils, and 44% class 6 soils. The Board finds that the soils investigation report merely corroborates the finding that the subject property is more than 50% class 7 and 8 soils and is not considered agricultural land. The soils report is thus not subject to DLCD review under Oregon Administrative Rules 660-033-0030(5), as the Board did not specifically use the soils report to determine that the subject property is not agricultural land. As for the contrasting inclusions, the Board finds that staff's choice of not assigning a percentage to the contrasting inclusions to be the best method. This is the best method because, under the state administrative rules, an applicant need not provide a detailed soil classification study. Therefore, contrasting inclusions cannot be formally determined, as the percentages are not identified specifically within the soil type descriptions. As an example of this, the NRCS soils information indicates that for the 38B soil (Deskamp-Gosney complex), the contrasting inclusions are: Clovkamp soils in swales; soils that are very shallow to bedrock or are on ridges; and rock outcrop. The 58C soil (Gosney-Rock outcrop-Deskamp complex) has contrasting inclusions of: Clovkamp soils in swales; and soils that are very shallow to bedrock. The Board notes that the Clovkamp soils are class 4 soils, and the soils that are very shallow to bedrock and the rock outcrop are class 7 and 8 soils. For the purposes of this review and decision, the Board finds that determining the percentages of contrasting inclusions is not necessary, given that the property is more than 50 percent class 7 and 8 soils. OAR 660, Division 15, Statewide Planning Goals and Guidelines FINDING: The Hearings Officer's findings regarding the Statewide Planning Goals and Guidelines are incorporated herein: Goal 3, Agricultural Lands. Based on the evidence and argument in this proceeding, the applicant has successfully demonstrated that the subject property is not agricultural land. Goal 3 does not apply. The Board concurs with this finding. Exhibit "0" to Ordinance 2013-009 Page 6 of7 CONCLUSION: The Board finds that all criteria for the proposed plan amendment from Agriculture to Rural Residential Exception Area, and the zone change from Exclusive Farm Use ­ Tumalo/Redmond/Bend subzone (EFU-TRB) to Multiple Use Agricultural (MUA-10) have been met, and hereby approves the request as submitted. Exhibit "D" to Ordinance 2013-009 Page? of?