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HomeMy WebLinkAboutNewland Application TestimonyFebruary 12, 2014 Mr. Paul Blikstad Senior Planner Deschutes County Community Development Department 117 NW Lafayette Ave. Bend, OR 97708-6005 RECEIVED FEB 18 2014 Deschutes County CDD SUBJECT: PA-13-1/ZC-13-1; Newland Real Estate Group's Application for Plan Amendment and Zone Change After listening to the testimony February 5th regarding the Newland's Property having no potential for agricultural profitability, we would like to add the following comments: We live 200 yards south of the Newland property and have been farming 4 acres of irrigated land that is essentially the same as the Newland irrigated land. With our 4 acres we are growing enough hay to feed our 4 horses year round without having to buy additional feed. The Newland's 100+ irrigated acres of land has the capacity to support 100 horses. Currently boarding a horse in Central Oregon costs around $350/month. If the 100 horses were part of an equine boarding, riding and training operation the land would have high potential for profitability. The Newland land should remain EFU. Though future population growth and an adjusted Urban Growth Boundary may demand reconsideration, now is not the time. Thank you, Stan and Sue She ardson 21635 Los Serranos Drive Bend, Oregon 97701 Paul Blikstad From: Toby Bayard <tobybayard@hotmail.com> Sent: Wednesday, February 12, 2014 4:10 PM To: Paul Blikstad Subject: Please REPLACE the previous document with the attached Attachments: FINAL -Toby Bayard comments on Newland Application for Zone Change.pdf Importance: High Dear Mr. Blikstad, I should have asked that you remove my previous comments from the public record and REPLACE them with the attached comments. I cancelled a meeting this afternoon so that I could correct some errors and make some additional points that occurred to me almost immediately after I sent the first document. Thank you in advance for removing the old comments and replacing them with the attached FINAL document. Sincerely, Toby Bayard 20555 Bowery Lane Bend, OR 97701-8850 tobybavard@hotmail.com 541-977-5341 1 Paul Blikstad From: Toby Bayard <tobybayard@hotmail.com> Sent: Wednesday, February 12, 2014 4:01 PM To: Paul Blikstad Cc: Tammy Baney; Alan Unger; Tony DeBone Subject: FINAL TESTIMONY - Toby Bayard RE: Newland's request for zone change / Plan Amendment Attachments: FINAL -Toby Bayard comments on Newland Application for Zone Change.pdf Importance: High Dear Mr. Blikstad, I found some additional time this afternoon to strengthen the arguments that I make against Newland Real Estate Group's application for rezoning its land from EFU to MUA-10 and for an accompanying Comp Plan Amendment. Please enter these REVISED AND FINAL comments into the administrative record associated with this matter. I have attached the revised document (FINAL—Toby Bayard comments on Newland Application for Zone Change.pdf) that contains my objections, and which present the legal and policy reasons (documented with citations of Oregon's applicable land use planning statutes, administrative rules, as well as policy quotes drawn from Deschutes County's Comprehensive Plan, Chapter 2, Resource Management, Agricultural Lands and Goal Exceptions) for my opposition. Newland has built its rezoning request upon an assertion that its land is not capable of being profitably farmed (a statement with which I strongly disagree, particularly as I'm an experienced and certified Master Gardener in Deschutes County, and have a good understanding of this topic). There is a difference between land that is not profitable for agriculture and land that is mismanaged in a way that makes farming unprofitable, despite its inherent value as "ag" land. Further, Newland misinterprets of Oregon statewide land use planning law, a mischaracterizes the soil classification and the agricultural capabilities of the land for which it requests re- zoning, and offers an inaccurate assertion that a Goal 3 exception is not needed in order for Deschutes County to amend its Comprehensive Plan. Newland's motivations are clear: it wishes to have its resource land to be zoned to MUA-10 so that it becomes "exception land" — land that can legally be included in the city of Bend's expanded UGB map, once the city submits its revised Comp Plan to the DLCD. Newland's land was included in Bend's first UGB expansion application, which was remanded back to Bend because of violations of Goal 14 and ORS 197.298 (among other violations). To comply with the Remand Order, Bend cannot include Newland's agricultural land (resource land) in its revised expansion map unless it is rezoned to exception land. I appreciate your consideration of my arguments against Newland's application and look forward to working with the County and its Commissioners to resolve this matter. Sincerely, Toby Bayard 20555 Bowery Lane Bend, OR 97701-8850 1 February 8, 2014 Mr. Paul Blikstad Senior Planner Deschutes County Community Development Department 117 NW Lafayette Ave. Bend, OR 97708-6005 SUBJECT: PA-13-1/ZC-13-1; Newland Real Estate Group's Application for Plan Amendment and Zone Change Dear Mr. Blikstad: My name is Toby Bayard. I live in Deschutes County at 20555 Bowery Lane, Bend, OR 97701. I am writing to express my strong opposition to Newland Real Estate Group's (Newland) proposal, which asks Deschutes County to rezone 171 acres of land from EFU-TRB to MUA-10. With respect to standing, my interest stems from the facts that (a) I'm a patron of Swalley Irrigation District and this ruling could impact the financial health my District and (b) I've previously commented on Bend's Urban Growth Boundary (UGB) expansion, and objected to the inclusion of Newland's EFU-zoned land in it. Bend's proposed expansion, which was submitted to Oregon's Department of Land Conservation and Development (DLCD) in January of 2009, improperly interpreted a number of Oregon's statutes, including ORS 197.287 and Goal 14, as they pertain to the urbanization of agricultural land. One of my objections to Bend's UGB expansion was that it ignored an ample inventory of exception land (again, in violation of Goal 14), passing it over as "unsuitable" for residential development, yet it included Newland's EFU land—resource land. And, Bend included this land, even though it had a higher class of soils that the Department of State Lands EFU land (which was excluded in the expansion map, and which has since been rezoned to MUA-10). Newland's land had no access to sanitary sewer service (although the DSL's Section 11 lands were able to be served by the proposed Southeast Interceptor that was inside Bend's existing UGB and which abutted DSL's western boundary. I am really concerned that Newland's application is nothing more than an end -run around the DLCD's Remand Order, which instructed Bend about how to interpret and apply Goal 14 and ORS 197.298. My concern led me to file an objection with the DLCD, noting Bend's decision to include Newland's EFU-zoned agricultural land in its expanded UGB. In that objection, I argued some of the same legal points that I raise here. My arguments were reviewed by the Oregon Land Conservation and Development Commission (LCDC), found to have merit, and became part of the DLCD's Remand Order, finalized in November, 20101. The Remand Order provided specific instructions about how Bend should interpret Oregon law in order to remedy the identified deficiencies. These deficiencies had to be corrected before the City resubmitted its revised Comprehensive Plan for formal acknowledgement by the DLCD. In part, the DLCD provided Bend with explicit instructions about how to comply with portions of ORS 197.298, OAR 660, and Goal 14 that guide their application. In the Remand Order, no party took a valid exception to Goal 3, because there was no attempt by the City to claim that the land it was seeking to include in its expanded UGB was anything other than agricultural land. Thus the Remand Order did not address Goal 3. One fear that I have is that while the DLCD's Remand Order is binding on the City, its analysis of urbanizing particular properties is applicable to any jurisdiction as guidance, and may properly be referenced here by the County as empirical analysis by an expert and objective third party. 1 The Remand Order may be viewed here: http://bendoregon.gov/modules/showdocument.aspx?documentid=5343 Toby Bayard February 11, 2014 About Newland Newland Real Estate Group, which is headquartered in San Diego, CA, states that it is "the largest private land developer of residential and urban mixed-use master -planned new home communities in the United States"2. In 2011, Newland formed a joint venture with Sekisui House, Ltd., Japan's largest home builder. The joint venture, NASH/Newland, went on to purchase 4,128 acres in Pierce County, WA where it is in the process of building 6,000 new homes and a Targe commercial center. The NASH/Newland joint venture also acquired the interests of CaIPERS and American Newland Communities, giving it 28 master -planned communities, the largest operating portfolio of master -planned communities in the United States3. Among its Northwest region projects are Fisher's Landing in Vancouver, WA, a 2,100 -acre mixed-use development that includes not only a 160 -acre commercial center, a corporate headquarters and an industrial site but also 7,000 single- and multifamily units. On a smaller scale, Newland also developed Bend's River Run subdivision. Newland invested in the 171 acres in the area of Butler Road and Hamby Road despite the fact that it was zoned EFU. I believe that it did so because it failed to appreciate and respect Oregon's land use planning laws if, indeed, it understood their intent with respect to protecting agricultural land. Ignorance of the law is no excuse, and Newland now finds itself the owner of 171 acres of farm land that has water rights, a history of agricultural productivity and no hope, if it remains EFU, of being developed in the manner that Newland intended at time of purchase. Research shows that Newland has a history of developing large tracts of marginal lands—inexpensive farm land, land in foreclosure, arid land on the edge of growing urban centers, and building them out as "master planned communities, complete with town centers, commercial centers, golf courses, water features, marinas, a variety of housing types, often featuring executive -style high end homes, and the like. Visit Newland's website to get an idea of its approach to development4. An example is 4S Ranch® located in the north San Diego County community of Rancho Bernardo, about which Newland says, "This mature community has become such a success that the proximate area surrounding it is now known as `4S.' ... In the heart of the community, 4S Commons, a traditional town center, is busy with active retail seven days a week." Per Wikipedia, "Rancho Bernardo...is a sprawling community with shopping malls, golf courses and office parksi5. Then there is Newland's Stonegate, "with close proximity to Denver's growing employment, cultural, and entertainment districts", and Estrella, located "in Goodyear, Arizona, approximately 17 miles west of downtown Phoenix." Estrella offers a regional infrastructure, thriving economy, growing society, vacation destination, a community and a home." Estrella, as it turned out, lost a great deal of its "thriving economy and growing society" when the real estate bubble burst in Arizona. Or consider Newland's Clarksburg Town Center, in Clarksburg, MD, "a mixed-use community located approximately 35 miles northwest of Washington, DC along the 1-270 designated growth corridor in Montgomery County, Maryland. The vision for this community is to offer the best urban lifestyle—social, diverse, close to everything—in a great suburban location with exceptional amenities ". Another example of Newland's propensity for producing sprawl is MiraBay, a high-end community located 20 miles of Tampa, FL, with a "resort style amenity center", and a boat -lift that allows residents to directly access Tampa Bay. Figure 1: Newland's 4S Ranch high-end community 2 http://www.newlandcommunities.com/About-Us 3 http://www.newlandcommunities.com/About-Us/Our-History 4 http://www.newlandcommunities.com/Our-Communities 5 https://en.wikipedia.org/wiki/Rancho_Bernardo,_San_Diego Page 2 Toby Bayard February 11, 2014 What will happen if Deschutes County approves Newland's application for a Plan Amendment and zone change? It is clear that, once Newland's land becomes MUA-10 exception land, Newland will again approach the city of Bend to have its land included. Instead of remaining valuable agricultural land, Newland's 171 acres, 100 of which now have valuable water rights, will grow houses, approximately 1,000 of them, in an environment with "urban amenities" (probably some of them commercial). This will change the character of the surrounding area and will advance Deschutes County down the path toward urbanizing even more of what is now valuable agricultural land. Newland's quest to be included in Bend's Expanded UGB Between April and December of 2007, Newland purchased the agricultural land that is the subject of this Plan Amendment and Zone Change application. Deschutes County's DIAL system's reveals that Newland purchased 170.36 acres, comprised of nine (9) tax lots and eight (8) parcels. For a detailed summary of sales dates, acres purchased, special farm assessments, tax Tots, improvements, etc., please refer to Appendix A. Shortly after it made these purchases, Brian McCarl, Newland's then Regional President, Northwest Region, was quoted by Scott Hammers in the Bend Bulletin as saying, "attempts to contain development within urban areas overlook the way many people want to live and drive up the price of housing6." One way to make housing cheaper is to purchase large tracts of agricultural land and develop it. This has been Newland's strategy in the states of Texas, Florida, Minnesota, and elsewhere. But, it is very difficult to do in Oregon. According to the County land sales records that I reviewed, of the land that Newland purchased, 92.05 acres are currently in Property Class 550 Farm, 48.39 acres are in Property Class 551 Farm, and 29.92 acres are in 400 Tract. Said another way, more than 82 percent (140.44 acres) of the 171 acres in question are currently classified as Tax Deferred Farm land and approximately 100 acres have water rights. According to Central Oregon Irrigation District's (COID) detailed historical records, this irrigated land has been under agricultural production for roughly 100 years, having been used to grow (variously) potatoes, hay, and alfalfa and to raise livestock. Over that span of time, the property owners of that land have relinquished only 5 acres of water. Once Newland had completed its 2007 agricultural land purchases, it approached the city of Bend's Public Works department with a proposition. Newland's land was not only agricultural, it was situated in an area that was distant from the intended route of Bend's Southeast sewer interceptor, intended to provide service to the east side of Bend. The Southeast Interceptor had been mapped out and described in detail in Bend's Collective System Master Plan (CSMP), which was finalized in April 2007. In February 2008, Brian McCarl and Newland engaged a civil engineering and consulting firm MacKay and Sposito and together they offered to "work with the City" to enable it to use a different path for the northern part of the Southeast Interceptor. That alternative, which was known as the Hamby Road Interceptor', became an alternative described in an Addendum to the CSMP8 and was submitted, along with the UGB expansion map, Findings, and the proposed Public Facilities Plan, to the DLCD in January of 2009. In the voluminous public record associated with Bend's first attempt at expanding its UGB, there is a map9 that shows the Hamby Road interceptor as running through the edge of Newland's property. With respect to its land purchases, Newland was very clear about wanting as much acreage as possible to be included in the Bend's soon-to-be expanded UGB. And, for a time it appeared that Newland would succeed in having its acreage brought into Bend's expanded UGB despite the fact that it was agricultural land. 6 http://www.friends.org/news/20081003_bend_bulletin_big_Iook_gets_locals_heated_up ' http://bendoregon.gov/ftp/docs/Collection%20System%20Master%20PIan/Task_1 4_Recommended Alternatives Report_Draft_Bnal.pdf 8 http://bendoregon.gov/modules/showdocument.aspx?documentid=2447 9 http://bendoregon.gov/modules/showdocument.aspx?documentid=2432 Page 3 Toby Bayard February 11, 2014 The DLCD Remand Order While Oregon's Goal 14 deems agricultural (resource) land as having the lowest priority for inclusion in Bend's expanded UGB (behind Urban Area Reserve and exception land) the Goal also provides that if the supply of suitable higher priority "exception" land is exhausted before a city has satisfied its 20 -year projected land need for urban expansion, resource land can be included10. As noted previously, the DLCD ultimately found that the city of Bend had improperly determined that a large amount of exception land was "unsuitable" for its expansion needs, thus making way for the inclusion of parcels of EFU-zoned resource land, Newland's among them. While Bend's UGB expansion plans were partially acknowledged by the DLCD, a number of major Findings were found to violate State law and, in November, 2010, remanded back with explicit instructions on how to remedy the deficiencies. Specifically, Bend did not properly comply with ORS 197.298(3)(c) and ORS 197.298(2) when justifying its inclusion of resource lands. As it now stands, Newland's land is clearly ineligible for inclusion in Bend's future UGB expansion map. To me it is clear that Newland's motivation in pursuing a Plan Amendment and Zone Change from EFU-TRB to MUA-10 is to convert its land to exception land, making it eligible for inclusion in Bend's revised UGB expansion. Newland is making no secret of its intentions to pursue that objective. In an article published in the Bulletin on January 20, 2014 Dave Wood, Newland's current Regional President, Northwest Region stated, "We're just trying to get it into a residential zone", and, "Certainly, we hope to develop." Agriculture in Deschutes County There is unquestionably commercial agriculture in Deschutes County; it consists primarily of field crops (alfalfa, potatoes, hay, mint and seed crops) and livestock operations. Agriculture remains an important economic element of the County, contributing significantly to the local economy. It also provides secondary benefits such as open space and scenic appearance and, in the face of a changing climate and threats to global and national food supplies, the ability to produce food locally contributes to our region's food security. There is a growing interest in locally produced food, a resurgence of small farming in the U.S. and an increasing need to protect irrigated farm land. State statutes define which lands are to be considered agricultural and what uses are permissible on them. Oregon's Planning Goal 3 provides farmland protection standards that must be met by cities and counties. Oregon Revised Statute 215 and 197 and Oregon Administrative Rule 660, Division 33 set forth the criteria for compliance. The overriding theme of Goal 3, ORS 215, ORS 197, and OAR 660, Division 33 is that EFU zones must be protected so that commercial -scale agriculture can be continued into the future; once agricultural land is "urbanized" it is lost and cannot be recovered. Planning Goal 3 states that: "Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products ..." and that, "Counties may authorize farm uses and those nonfarm uses defined by commission rule that will not have significant adverse effects on accepted farm ... practices".11 Much of what helps to define agricultural land in Central Oregon is historical uses and soil classification. According to OAR 660-015-0000(3): In eastern Oregon, Class 1, 11, 111, IV, V and VI soils are suitable for farm use taking into consideration ... "suitability for grazing, climactic conditions, existing and future availability of water for farm irrigation 10 The best explanation of this can be found in an Oregon.gov document entitled UGB Location, which can be found here: http://www.oregon.gov/LCD/docs/general/bend ugb/section3i report on bend ugb.pdf 11 http://www.oregon.gov/LCD/docs/goals/goal3.pdf Page 4 Toby Bayard February 11, 2014 purposes, existing land use patterns, technological and energy inputs required, or accepted farming practices': While Deschutes County's elevation and low rainfall may make crop farming somewhat difficult, once irrigation water is applied, soil classification often rises to Soil Conservation Service (SCS) Soil Capability Class IV or above (see below for more on Soil Capability Classes. While Soil Capability Class IV has very severe limitations that restrict the choice of plants, and requires very careful management, it can certainly support livestock operations and certain commercial crop types. Soil Classification The County is clearly aware that the USDA, Natural Resources Conservation Service (NRCS)'2, has distinguished eight classes of land capability as they relate to the ease or difficulty of agricultural land use: • Class 1: Soils that have few limitations restricting their use; • Class II: Soils that have some limitations, reducing the choice of plants or requiring moderate conservation practices; • Class III: Soils that have severe limitations that reduce the choice of plants or require special conservation practices, or both; and • Class IV: Soils that have very severe limitations that restrict the choice of plants, require very careful management, or both. The following soil classes are generally not considered suitable for cultivation without some form of major treatment: • Class V: Soils that have little or no erosion hazard, but that have other limitations, impractical to remove, that limit their use largely to pasture, range, woodland, or wildlife food and cover; • Class VI: Soils that have severe limitations that make them generally unsuited for cultivation and limit their use largely to pasture or range, woodland, or wildlife food and cover; and • Class VII: Soils that have very severe limitations that make them unsuited to cultivation and that restrict their use largely to grazing, woodland, or wildlife. • Class VIII: Soils and land forms that preclude their use for commercial plant production and restrict their use to recreation, wildlife, water supply, or aesthetic purposes. Is Newland's Land Goal 3 Agricultural Land? The short answer is "yes". While Newland bases its application on the assertion that the land in question is not profitable for agriculture—commercially viable, based on economic analyses showing that they haven't been profitable in the recent past. Yet Newland's land is good land, with soils capable of sustaining (at the very least) livestock operations and (based on my own experience) crop production. There are many similar parcels of farm land in Deschutes County that is good agricultural land—good enough to profitably ranch and farm, because they are under management that stays current with agricultural "best practices". Many businesses come and go because they are poorly managed—agriculture is no different and failure to farm well should not be rewarded by rezone to a residential zoning classification allowing repurposing, and thus profit to the failed farmer. If Deschutes County starts down that path, any farmer could start to mismanage her or his agricultural concerns, thus leaving the door open to have her or his land rezoned. This would set a dangerous precedent and weaken Oregon's Goal 3 policies and guidelines. I ask Deschutes County not to go down that path. 12 Formerly the Soil Conservation Service (SCS) Page 5 1 Toby Bayard February 11, 2014 So why is Newland's land "inherently good land", even though it has been mis-managed? Oregon's Statewide Planning Goals & Guidelines Goal 3: Agricultural Lands (OAR 660-015-0000(3) states that: "Agricultural Land -- ... in eastern Oregon is land of predominantly Class 1, ll, Ill, IV, V and VI soils as identified in the Soil Capability Classification System of the United States Soil Conservation Service." NRCS maps identify three soil units on Newland's property. These are Soil Units 36A and 36B, which id Deskamp loamy sand 1 to 3/3 to 8 percent slopes (considered high value soils when irrigated) and Soil Unit 58C, Gosney–Rock outcrop-Deskamp complex, 0 to 15 percent slopes (which is a lesser or "non -high" value soil. Per the Official Soil Series Descriptions, published by the U.S. Department of Agriculture , Deskamp soils have the following uses and vegetation: "These soils are used for crop and forage production, livestock grazing and wildlife habitat.i13 Per the NCRS, which is part of the USDA: "Deskamp soils are on lava plains ... Slopes are 0 to 15 percent. The soils formed in ash. The climate is characterized by cool, moist winters and hot, dry summers. The mean annual precipitation is 8 to 12 inches. The mean annual temperature is 47 to 52 degrees F. The frost free period is 70 to 100 days."14 In the case of Newland's land, the soil's past ability to sustain agriculture is not in question. It was productive for the various families that owned and used it for many decades to raise livestock, grow hay and alfalfa, and up until the early 1970s, to grow potatoes. These field crops and livestock operations have, for an extended period of time, been present on over 70 percent of the acreage that Newland seeks to have rezoned from EFU-TRB to MUA-10. Further, the land Newland purchased has water rights, and has maintained them for nearly a century. This land has sufficient value as agricultural land—when irrigated—to have produced crops and supported livestock operations for many decades. Since 1910 (and even further back to 1904, as some records relating to water rights on Newland's land go back that far), a major part of Newland's acreage been appropriated water rights. In order to maintain these water rights, the water must be used for "reasonable and beneficial uses". It the water is not used, the land may lose its appropriated water rights. Between 1904 and 1910 (when the water rights were appropriated) until at least 2004, the acreage in question appeared to have a usual and customary management pattern, where the flat and cleared soils were irrigated and apparently "under cultivation", while the rock outcroppings were left natural. These outcroppings are customarily reserved for the placement of houses, pole barns used for hay storage, sheds, etc., where their slight elevation protects them from flatland flood irrigation water or piped irrigation and pivots. (My assertion here is evidenced by an aerial photo placed into the administrative record by COID). The photos show that water was not being leased back in stream but was rather, being applied for agriculture. It was only when the land owners realized that they could profit by selling the land for development that they stopped irrigating. Hearings Officer Karen Green recommended that Deschutes County deny Newland's original application for a zone change based on its failure to demonstrate, through soil testing, that the land is not suitable for agricultural use. Nothing has changed with respect to soil testing. I assert that Roger Borine, of Sage West LLC, used a flawed approach to soil analysis when he selectively sampled soils in July, 2012, in the dry heat of a Deschutes County summer, on land that was likewise dry because the water rights associated with this land had been leased back in stream. In July, unirrigated soil is typically dry and can appear to be of lower value for agriculture. But when that land is irrigated—as Newland's can still be—it can readily support crops and livestock operations. 13 Official Soil Series Descriptions (OSD) with series extent mapping capabilities; https://soilseries.sc.egov.usda.gov/ 14 https://soilseries.sc.egov.usda.gov/OSD_Docs/D/DESKAMP.html Page 6 Toby Bayard February 11, 2014 My own experience indicates that this is the case. Our land is irrigated Deskamp loamy sand and we raise more than an acre of food crops for personal consumption and have fora years. Deschutes County's Comp Plan and its stated management strategy of Agricultural Lands In 1979, Deschutes Count published its first Comprehensive Plan. In it, this statement was madels: During the preparation of the Deschutes County Comprehensive Plan it became apparent that many of the rural areas in the County had already received substantial. development. These lands have largely been. sold and become •committed to non_resource uses. The County's plan is to restrict future division of the resource lands while recognizing that development which exists, and establishing a more efficient development pattern. Page 2 of the 1979 Comprehensive Plan contain these two paragraphs, which refer to UGB boundaries, and how the County will, in the face of its growing population, protect the resource land that is outside them "which are so important to the local economy and environment". The other areas being used for non -resource uses are thosalands included within .the urban. growth boundaries. .Each of the three urban areas has identified an urban growth boundary (U6). Inside, the UGB the ultimate use of the land. is to be of an urban nature. Bach urban area plan contains the findings and reasoning which' justifies the lands contained within that UGB; therefore, this statement will not address resource lands which are included in the.urban areas. . The flexibility which the exceptions process permits will allow Deschutes County to accommodate the existing and future needs of the County's ever-growing population, while serving as -abase upon which the County can construct its plans for the'protection of the resource lands which are so important to the local economy and environment. 15 https://scholarsban k.uoregon.edu/xml u i/bitstream/handle/1794/6080/Deschutes_County_Com pplan_1979. pdf?sequence=4 Page 7 Toby Bayard February 11, 2014 Deschutes County's current Comprehensive PIan16, Chapter 2, Resource Management, reads as follows: Chapter 2: Resource Management—Agricultural Lands Agricultural lands Goal 1. To preserve and maintain agricultural land. Policies 1. All lands meeting the definition of agricultural lands shall be zoned Exclusive Farm Use, unless art exception to State goal 3 is obtained so that the zoning may be Multiple Use Agriculture or Rural Residential. 2. Lands not meeting the agricultural lands definition but having potential for irrigation according to the Bureau of Reclamation Special Report - Deschutes Project, Central Division, Oregon, although presently without water, shall receive exclusive farm use zoning. 3. Public lands meeting the criteria for EFU zoning shall be so zoned unless some other resource (i.e., forest) or public use exists on the land. 4. No more than 25 percent of a given agricultural subzone shall be composed of lands not of the same agricultural type. Any agricultural lands not zoned EFU agriculture shall be identified in the County Exception Statement. Zoning districts shall be at least 40 acres in size. 5. Zones and minimum parcel sizes shall be established to assure the preservation of the existing commercial agricultural enterprise of the area. 6. For purposes of profiling the existing commercial agricultural enterprises of the County, the County shall consider as one land unit all tracts in contiguous ownership (including those parcels separated only by a road) zoned EFU. Goal 3 Exception Considerations It should be emphasized that Newland, is requesting approval of a Comprehensive Plan amendment from Agriculture to Rural Residential Exception Area, and a zone change from EFU-TRB to MUA-10 but the applicant is NOT requesting an exception to Statewide Planning Goal 3, Agricultural Land and argues the requested plan amendment and zone change are warranted because the subject property is not agricultural land protected by Goal 3. Clearly, it is as it is, by definition, EFU-TRB land. Deschutes County has published its position on Goal Exceptions'' and which contains guidelines that directly contradict Newland's assertion that a Goal 3 exception is not required. This document contains a discussion of Deskamp soils—the soils that are on much of the Newland land: An example of the difficulty in using the General Soils Map is the Deskamp Association, which has the best agricultural capabilities in the County.... Yet a look at the topsoil capabilities of the soil indicate 50 16 Deschutes County Comprehensive Plan, Chapter 2, Resource Management, can be found at this web address: http://I ava5. desch utes.org/cdd/compplan/assets/files/worki ngplan/chapter2wth photos. pdf 1' http://www.deschutes.org/DeschutesOrg/files/c5/c5811472-add1-4a50-a3eb-176372ab10a7.pdf Page 8 Toby Bayard February 11, 2014 percent is "good", 'fair" is 12 percent, while "poor" is 38 percent. A look at the U.S. Soil Conservation Service (SCS) data indicated the Deschutes Soils are generally Class VI but can be classed as 11 and 111 when irrigated, while Deskamp Soils are Classes 111 and IV when irrigated and otherwise Class VI. Soil classes I11 and IV are considered to be suitable for cultivation, per the NCRS. These are soils that are agricultural in nature. They have been shown to successfully support the cultivation of hay and alfalfa and the grazing of livestock in Deschutes County. If Newland's land is not capable of profitably employing its acreage for agriculture, it is not using the proper methods that will produce success. Rezoning is not an option, per Goal 13 and Oregon law. Per Deschutes County's Comprehensive Plan, Chapter 2, Agricultural Lands, Newland's assertion that its property is not agricultural land is flawed in many ways. First, it has been in agricultural production for decades and could still be, if irrigation water was reintroduced. Second, its soil class, by definition, is capable of agricultural production—the type of agricultural production that is typical in Deschutes County. Third, and most important, Newland's land is zoned EFU. Based on my reading of Deschutes County's Comp Plan, Chapter 2, Agricultural Lands, I assert that an exception to State goal 3, which is not being requested by the applicant, is, in fact, mandatory. Simply because Newland wants to develop this land does not make it exception land. If the rezoning of this land from EFU to MUA-10 is to be achieved, it must be accompanied by a Goal 3 exception, per Deschutes County's Comprehensive Plan. In the Working Draft of that Plan, Chapter 1, Page 1-26, the following appears: "The Oregon land use system contains protections for farm and forest resource lands. The exception process is intended to address situations where the protection of those resource lands through the application of the Statewide Planning Goals would not be practical. There are three reasons a local government can use to take an exception: if the land is physically developed, if the land is irrevocably committed to other uses or if the land fits a defined set of 'reasons' criteria." My research reveals that there have been only a few "reasons criteria" based exceptions to Goal 3 agricultural (EFU) land taken in Deschutes County. These exceptions were of the following type: • Bend Municipal Airport Exception: An exception to Statewide Planning Goal 3 was taken as part of the 1979 Comprehensive Plan (PL -20) to accommodate the Bend Airport. The Bend Airport Master Plan, as approved by the Federal Aviation Administration, set forth the basic policies relating to the Bend Airport. • La Pine UUC Boundary Exception: A plan amendment and zone change for an area of land zoned EFU and physically developed with the Mid State Electric Co-op, Inc. Facility, exceptions to Statewide Planning Goal 3, Agricultural Land, Goal 11, Public Facilities and Services and Goal 14, Urbanization were taken. The goal exceptions allowed the subject land to be included in the La Pine UUC boundary and planned and zoned for commercial use. • Creation of a Rural Industrial Zone: An "irrevocably committed" exception to Statewide Planning Goal 3, Agricultural Lands was taken to allow for a plan amendment and zone for the specific use of storage, crushing, processing, sale and distribution of pumice only. • Prineville Railway: An exception to Goal 3, Agricultural Lands, was taken to accommodate the relocation of the Redmond Railway Depot to the subject property and the use of this site for an historic structure to be utilized in conjunction with the Crooked River Dinner train operation. • Barclay Meadows Business Park and Sisters School District #6: "Reasons" exceptions to Statewide Planning Goal 3, Agricultural Lands were taken to include the Barclay Meadows Business Park and Sisters School District 6 within the City of Sisters Urban Growth Boundary (UGB). Page 9 Toby Bayard February 11, 2014 • City of Bend. Juniper Ridge: In conjunction with the amendment of Bend's UGB to include 513 acres of land for industrial purposes, an exception to Statewide Planning Goal 3, Agriculture, was taken. • Joyce Coats Revocable Trust Johnson Road and Tumalo Reservoir Road Properties: An "irrevocably committed" exception to Goal 3, Agricultural Lands to allow for the rezoning of a Surface Mine. Additionally, the County determined that the Surface Mine site in question was non -resource land. As can be seen above, Deschutes County takes 'reasons' criteria -based Goal 3 exceptions in rare cases, typically only when a major public project requires it. There is a "weighing of the use utility" that a public entity such as Deschutes County does as a matter of public policy when they take the unusual action of requesting a land use exception. Is there, in this case, a "public utility" to be served—a community need or value that looms larger than the requirements of State statutes, rules and goals? Or would Deschutes County simply be furthering a for-profit corporation's attempt to resurrect a failed land development plan, at the risk of weakening the County's and the States land use planning policies and guidelines? It is hard to imagine that Newland's desire to have its land included in any future Bend UGB expansion map would provide the impetus for a 'reasons' criteria exception. Moreover, neither Bend or Deschutes County could justify a "reasons criteria" exception in order to enable Bend's future construction of a Hamby Road sewer interceptor because doing so would, in and of itself, violate Goal 11. Other Considerations As a patron of Swalley Irrigation District, I am well aware of the impact of the loss of a major water rights holder on the health of an irrigation district. Economy of scale is a critical component of successful District operations. Changing the zoning of Newland's land from EFU to MUA-10 will have the ultimate effect of urbanizing it, particularly as the city of Bend included the land in its original UGB expansion map. Steve Johnson, District Secretary/Manager of Central Oregon Irrigation District (COID) submitted a letter to Deschutes County clearly making that point. When an irrigation district begins to lose patrons, this has an overall detrimental impact on those which remain. Ultimately, ditch riders are laid off, winter stock runs are of a shorter duration, service quality declines and the cost of doing business for the agricultural patrons that remain increases. I close my comments by asking Deschutes County to comply with its own Comprehensive Plan, with Oregon's Goal 3 guidelines and directives, and to consider the short-, mid- and long-term damage to agricultural production in Central Oregon that will result if you approve Newland's zone change request. Deschutes County planning staff is currently working with the Planning Commission on a local Non -Resource Lands Code that will better assist counties such as Deschutes in considering the issues that apply to agriculture east of the Cascades. Until that Code is finalized, it is important that Deschutes County decline the applicant's request and remain in compliance with the letter and spirit of the County's own Comprehensive Plan and with Oregon's Goal 3 guidelines. Respectfully submitted, Toby Bayard 20555 Bowery Lane Bend, OR 97701-8850 Page 10 Appendix A: History of NNP IV -NCR, LLC purchases 0- 0 0) 0) 52.46 acres O ct 0 sr O M 0) Q 0 0) 0 No water rights t0 O N 2007-55287 N O 0 N N ri O ri New Century No situs address E (13 LL O Lf) Ranch LLC, et al 1712240000406 f0 N; 13.84 acres 2007-64760 N O 0 ri N ri 1 . E f0 LL ri In 21785 Butler Mkt Rd. 1712240000304 cc 0) Ns - N r N 'r 29.92 acres 21831 Butler Mkt Rd. TL 206 - 400 Tract 2007-53680 Sandra Culver 1712240000300 -o 0) m Ln ci ? N 1712240000405 20.13 acres 2007-21813 N 0 O N N ri E f0 LL r -I Ln c > 0 0) J 0_ 21655 Butler Mkt Rd. 1712240000401 C) fa E fc LL Ln O' N c0 N O dV N O M O O O 0) 0 CO 0) N 2007-62802 Roderick J and 21765 Butler Mkt Rd. E CO LL O LC) tll a CD 0 J 1712240000305 0) a. V f0 • 0,140) = fA (fl 0 A t X CI) CO Q Y o y as ( c 0) s EN co in • -E O O s � O ▪ f. C N C -0 0 U 5A IA CU C. U N O. 0 Q February 11, 2014 m cx 1-4 w ou co ©. Opposition to PA-13-1/ZC-13-1— Newland's application to change zoning from EFU to MUA-10 February 12, 2014 Mr. Paul Blikstad Deschutes County Community Development Department 117 NW Lafayette Ave. Bend, OR 97708 SUBJECT: Opposition to Newland's Application for Plan Amendment and Zone Change Dear Mr. Blikstad: My name is Michel Bayard and I live in Deschutes County at 20555 Bowery Lane, Bend. I contest Newland Real Estate Group's assertion that its 171 acres of agricultural land should be zoned MUA-10 and not EFU. I ask Deschutes County to deny its application and leave the zoning as it currently is. I am familiar with Oregon's land use laws. As the president of a large home owners association, I was an appellant in the City of Bend's UGB expansion. I attended the Land Conservation and Development's Commission hearings where Bend's decision to include Newland Communities' (now Newland Real Estate Group) land in its UGB expansion was debated at length. In the end, the Commission ruled that Bend was attempting to urbanize farm land, which violated Statewide Planning Goal 14. This violation was one of many reasons why the Commission and its administrative arm the Department of Land Conservation and Development remanded Bend's UGB expansion proposal back instead of acknowledging it. Newland's EFU zoned farm land was deemed to be ineligible for inclusion in and revised UGB expansion plan because doing so would violate Goal 3. And, because Bend has a large supply of exception land, both within its currently acknowledged UGB and outside of it, it is unlikely that Newland's land will be brought in for at least another few decades. Oregon's land use laws are the best in the U.S. when it comes to protecting farm, ranch and forest land. For that matter, they are excellent in many ways. Oregon's statewide approach to land use planning was first adopted by the state legislature in 1973 and call for the "preservation of a maximum amount of the limited supply of agricultural land". I appreciate the leadership of then governor Tom McCall in understanding that what we had in the 1970s — wide open spaces and lots of farm, forest, and ranch land — was under development pressure. I also appreciate that the State implemented the statutes using Goals and guidelines that are sensible and easy to understand. These Goals make an out-of-state developer's due diligence process much less burdensome because they are so clear. Newland is a San Diego, CA private land development company — the largest in the U.S. It bought its 171 acres in 2007 at the top of Bend's real estate. If Newland had fully grasped the intent and the strength behind Oregon's land use laws it might not have made the purchase, with the stated intention of building approximately 1,000 residences on that land. But, as an out-of-state developer, it is likely that Newland didn't understand how Oregon's strong policies impose restrictions on the conversion of agricultural land to development. Unless a developer does careful due diligence, it may discover, as Newland has, that it's not that easy to sub -divide and build out agricultural land. Michel L. Bayard Page 1 Toby Bayard February 11, 2014 I am from France. France has very strong land use laws, as well. As a result, it has no sprawl, far fewer problems with providing urban services to its cities and villages (dense development is efficient to serve; sprawl is costly). Another thing that France has is food security (it leads Europe in agricultural production), small farms, managed forest land, efficient transportation and the ability to support a population of 65 million on land that is 211,209 square miles in size (approximately 51.4 percent larger than Oregon, which had approximately 3.93 million residents in 2013). France's protection of agricultural land and farming has resulted in its survival as an economy. It is inefficient in its deployment of labor yet it is able to survive because of tourism. Not all tourists visit Paris, in fact many avoid it. A large percentage of tourists visit southern France (Provence) which is arid and hot, with rocky, poor quality soil, and chaparral (the French word for scrub land) dominated by juniper, pines and manzanita-like shrubs. Yet Provence has managed to build a very strong agricultural base, anchored in livestock operations, lavender farming, and the production of similar field crops to those found in Deschutes County. While Provence's climate is also influenced by the Mediterranean, and the volcanic soil and high altitudes that Deschutes County has, when you are there, it looks very much like this region and faces many of the same agricultural challenges. Obviously, I live in the U.S., in Deschutes County, and I do so by choice. But I have taken then lessons of my homeland to heart. Agriculture is critically important and it is becoming more so. The vast majority of climate scientists agree that the world faces dramatic changes in the coming decades, brought on by trend in global warming. Many parts of the world will become warmer and wetter, and we will be challenged to produce sufficient food to feed our growing population. The oceans are threatened and increasingly, we will rely on the production of other types of protein and food types than can sustain us. Agricultural practices are not just likely to change, they are changing. A new generation of farmers are showing us that it is possible to grow crops on land that was previously dismissed as having soil that was too low in value to sustain agriculture. Deschutes County has well drained soil, which is less susceptible to the salinization that results from the use of commercial fertilizers. While it is arid, the east side of the Cascade Mountains produce an extraordinary amount of surface and ground water, some of which is reserved for irrigation. While that water must be managed carefully, and used beneficially, its use for agriculture is safeguarded by water rights. We must, as a region, carefully protect those water rights, and the agricultural land to which those rights are attached—it is our responsibility to those who come after us. It is also in keeping with the vision and the legacy that Governor Tom McCall endowed Oregonians with. Oregon defines what lands are to be protected for agricultural and the land uses that can be deployed on those lands. Planning Goal 3 provides farmland protection standards for municipal governments like Deschutes County. ORS 215 and 197 and OAR 660, Division 33 lay out how we must proceed in managing and protecting our precious agricultural resources. Exclusive Farm Use (EFU) zoned land is designated as being reserved for commercial -scale agriculture. When we convert that land to urban uses (such as residential development) it is lost forever and the water rights attached to it are lost, too. Newland's land is covered with soils that are, by definition, adapted to agriculture in Deschutes County. Agricultural land on the east of the Cascade Mountains is, "predominantly Class I, II, III, IV, V and VI soils as identified in the Soil Capability Classification System of the United States Soil Conservation Service." The NRCS maps identify three soil units on Newland's property. These are Soil Units 36A and 36B, which is Deskamp loamy sand 1 to 3/3 to 8 percent slopes (considered high value soils when irrigated) and Soil Unit 58C, Gosney–Rock outcrop-Deskamp complex, 0 to 15 percent slopes (which is a lesser or "non -high" value soil. Newland's land is generally flat, and it has Deskamp loamy sand -type soil of various types. According to Page 2 Toby Bayard February 11, 2014 the USDA, Deskamp soils are "used for crop and forage production, livestock grazing and wildlife habitat." These soils are formed in ash, and over the years, have become loamy sand that drains rapidly. While agricultural practices must be put in place to ensure that nutrients are not drained out of the soil, those are not difficult there is plenty of animal manure in Deschutes County and crop rotation can help to keep soils in top shape for agriculture. As my wife noted in her testimony, "In the case of Newland's land, the soil's past ability to sustain agriculture is not in question. It was productive for the various families that owned and used it for many decades to raise livestock, grow hay and alfalfa, and up until the early 1970s, to grow potatoes. These field crops and livestock operations have, for an extended period of time, been present on over 70 percent of the acreage that Newland seeks to have rezoned from EFU-TRB to MUA-10." It is also significant that Newland's 171 acres has about 100 acres of water rights. These rights have been in place for nearly a century. They could not have continued unchallenged if they were not employed for "reasonable and beneficial uses"—they would have been cancelled if they had not been used for some form of agriculture. I ask that Deschutes County deny Newland's application for a zone change from EFU-TRB to MUA-10. This is not in compliance with Goal 3 and would require an exception to that Planning Goal, and it is not in keeping with Deschutes County's Comprehensive Plan policies. It is not in the best interest of current or future residents of Deschutes County. Newland's request ignores the issue of sprawl, ignores the perilous state of this nation's future food supply and agriculture in general, and is motivated by the desire of an out-of-state developer to manipulate Oregon's long-standing Statewide Land Use Planning system to its own benefit. We cannot allow the approval of Newland's to set a precedent in Deschutes County or the State. There are many forces acting to weaken our land use laws. While I am all for creating a strong economy in Central Oregon, it must be balanced. Deschutes County learned a hard lesson of what happens when a land development / construction economy collapses. We need to become a region that is more diversified, better able to sustain crop production, and one that uses its many wonderful natural resources to attract tourism. People don't visit Deschutes County to enjoy our subdivisions and shopping. If they want that, they can visit Washington County or San Diego. Most people who live in Deschutes County don't want it to become Washington County; we don't want it to look like, or behave like, Southern California. I hope that Deschutes County will deny Newland's request for rezoning its land, in keeping with the agricultural land protection policies set forth in its working Comprehensive Plan. Thank you in advance for considering my comments. Michel Bayard, Ph.D. 20555 Bowery Lane Bend, OR 97701-8850 Page 3 Paul Blikstad From: michelbayard <michelbayard@bendbroadband.com> Sent: Wednesday, February 12, 2014 10:55 AM To: Paul Blikstad Subject: Comments in opposition to Newland's application for zone change Attachments: Comments on Newland Application for Plan Amendment and Zone Change - Michel Bayard. pdf Importance: High Dear Mr. Blickstad, Please consider my comments with respect to Newland Real Estate Group's application for a Plan Amendment and Zone Change from EFU-TRB to MUA-10. I strongly oppose this application and the attached document explains why. Thank you in advance. Michel Bayard, Ph.D 1