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HomeMy WebLinkAbout2014-04-28 Business Meeting Minutes Minutes of Board of Commissioners’ Business Meeting Monday, April 28, 2014 Page 1 of 13 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, APRIL 28, 2014 _____________________________ Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend __________________________ Present were Commissioner’s Tammy Baney, Anthony DeBone and Alan Unger. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administration; David Doyle and Laurie Craghead, County Counsel; Nick Lelack and Paul Blikstad, Community Development; and approximately a dozen other citizens. Chair Baney opened the meeting at 10:00 a.m. __________________________ 1. PLEDGE OF ALLEGIANCE 2. CITIZEN INPUT None was offered. 3. Before the Board was Consideration of the Reading of a Proclamation, Declaring May 3, 2014 Wildfire Community Preparedness Day . Alison Green gave an overview of wildfire issues and Project Wildfire. She added that Ponderosa Pines subdivision in La Pine received a $500 award to aid in their community preparedness day activities. Overall, representatives of Project Wildfire and others are working towards ongoing awareness in the area. Minutes of Board of Commissioners’ Business Meeting Monday, April 28, 2014 Page 2 of 13 Commissioner Unger said that they are on a great path and this work has already brought good results. Commissioner DeBone stated that each property owner needs to keep their property in good condition. It takes effort each year but is well worth it. Chair Baney added that it is a great opportunity to educate everyone to do this and Project Wildfire helps in this regard. Commissioner DeBone read the Proclamation to the audience. UNGER: Move approval of the Proclamation. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. 4. Before the Board was Consideration of Chair Signature of Document No. 2014-135, Amending an Intergovernmental Agreement with Oregon Health Authority regarding Public Health and Behavioral Health Services. Lori Hill gave an overview of the components of the agreement. These are part of a request for proposal, and would allow them to help the community to a greater extent. Jessica Jacks provided information on the Mental Health component o f the agreement. This agreement helps to provide coordinated and comprehensive care. Commissioner DeBone acknowledged this is an ongoing process. Chair Baney noted that she is happy to see the housing component since it is very hard for individuals to find rental housing at this time. UNGER: Move Chair signature of Document No. 2014-135. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Monday, April 28, 2014 Page 3 of 13 5. Before the Board was Consideration of First and Second Readings by Title Only, and Adoption by Emergency, of Ordinance No. 2014-010, Amending Title 18 of Code, Incorporating Changes to the Oregon Revised Statutes and Oregon Administrative Rule regarding the Exclusive Farm Use Zone. Paul Blikstad said that the Board reviewed this previously, and the definition of church has been deleted for further discussion; and the forest zone amendments will be addressed at a later date. Commissioner DeBone said that this is generally land use neutral and is part of Oregon law. The emergency clause allows the County to be consistent with the State. UNGER: Move first and second readings of Ordinance No. 2014-010, by title only. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the first and second readings, by title only. DEBONE: Move adoption of Ordinance No. 2014-010. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. 6. Before the Board was Consideration of Board Deliberations regarding a Decision on the Newland Land Use Appeal (Changing the Designation of Land from Agriculture/EFU to Rural Residential/MUA). Mr. Blikstad stated that he displayed an aerial photo for reference, and gave an overview of the history of the matter. A decision is needed so the final document can be drafted. Chair Baney stated that they can follow the matrix. The first question was whether the definition of agricultural land has been met. If so, applications cannot be approved since there is no proposal for an exception for Goal 3. A Goal exception would be needed , and they would have to demonstrate it is not agricultural land. For soils, classification is critical. The analysis needs to be either individual on a lot basis or on a tract basis. Minutes of Board of Commissioners’ Business Meeting Monday, April 28, 2014 Page 4 of 13 The Hearings Officer determined it should be done on a parcel basis, but also said that the County could choose between the two. The applicant says six of the eight parcels are class 7, and two were class 3 through 6. Those two would be considered agricultural land. If the tract analysis is used, the property would be predominately class 7, about 67%. Commissioner DeBone would like to work back from the next section. Laurie Craghead said this aspect has to be answered first. If the soil is determined to be class 6 or greater, the analysis does not apply. Commissioner Unger stated that he wants to analyze the whole document. Commissioner DeBone wants to consider the big picture. Each attribute of the seven points has an answer. Soil fertility in most of Central Oregon means having to amend and irrigate. Soil fertility is low quality in general, and a lot of input is necessary. Ms. Craghead stated that two lots are class 6 or better. It is crucial to answer the overall question of considering the tract as a whole or as individual properties. Commissioner DeBone stated he is speaking of this as a tract. Commissioner Unger said he also looks at it as a tract. This is how applications come to them. The first test of soil fertility shows it is not very fertile. It is marginally suitable for grazing depending on the factors. The growing season is short and that makes it more difficult. Regarding land use patterns, this is historical of how the County developed. There were farmable opportunities with irrigation. You have to amend the soil anywhere here to grow a good crop. It is typical of how farmland is managed here, and people live on it for the lifestyle primarily. He feels it is therefore farmland, as a tract. Chair Baney said that 67% of the soils are not agricultural. Ms. Craghead stated that if it is class 6 or better, it is agricultural. They have to consider the seven factors if the lots are considered separately. If they look at this as a tract, they don’t have to consider the seven factors. Commissioner DeBone stated this is a hard choice up front. He sees it as a tract. Chair Baney feels that the application and ownership shows it as a tract. Ms. Craghead said they then don’t have to consider the second question. Minutes of Board of Commissioners’ Business Meeting Monday, April 28, 2014 Page 5 of 13 For item #3, the question is whether it meets Goal 3. Mr. Blikstad said that profitability shows it is not suitable for farming. He referred to the matrix. Ms. Craghead stated that profitability is an additional factor outside of OAR, primarily due to case law. They need to take the factors as a whole to determine if it is agricultural land. Mr. Blikstad said there were two studies on acceptable uses. The net losses in the study ranged from $6,000 to $50,000 annually. Regarding soil fertility, the cost to fertilize is either deemed reasonable or too much of an expense. The applicant indicated it would take significant effort to improve the property. The fertilizing process is relatively low cost and aerial photos do not indicate it is not useable at some level. Commissioner Unger feels most of the land is not fertile, but still might be farmed. The costs to farm do not make it profitable. In the past people could get by, but it is hard to do today. You ha ve to consider the conditions, which can be inconsistent. Commissioner DeBone said fertilizing is a variable and it is hard to know the input costs each year. There are examples given of the lack of profitability. Chair Baney said she would not purchase land and anticipate it is free to farm it. Looking at the feasibility and history of this land, they are not starting from scratch. If she purchased farm land in that zone, she has a responsibility to know what it takes. There is a cost associated with farming even though this land needs to be enhanced. Fertilizing the land is not a big expense. It has to do with the management of the land. Commissioner DeBone stated that there is nothing much that can grow there unless it is added by man. There is volatility in managing the land, and it would be hard to farm for profit. There is land in other areas where it makes more sense. Ms. Craghead stated that even though there are water rights and soil amendments, does he feel it would be an unreasonable cost. Commissioner DeBone thinks that is the case in this location. You can make it green, but the economics are variable and cannot be guaranteed to be profitable. Minutes of Board of Commissioners’ Business Meeting Monday, April 28, 2014 Page 6 of 13 Commissioner Unger said that 83% of agricultural land in Deschutes County is not profitable to farm. He does not know if this should be a requirement. This is not the primary factor for him. Because there are wat er rights, you need to farm the land to keep them. Many people farm to keep the rural lifestyle, whether or not it is profitable. Chair Baney stated that she would have a hard time deciding to buy a parcel that is not profitable if that was her focus. They would have to use different types of opportunities to do so, if available. Part of it is purchasing in a rural area and a certain lifestyle. Chair Baney feels it is reasonable as a whole to consider this expense. Commissioner DeBone says there are some good ideas for smaller farms of 10 acres. Looking at it as a large parcel is not profitable. Horse boarding requires someone paying for it, and that market is variable. Irrigation and enhancements will be needed for basic grazing in this situation. Chair Baney stated they would need to build a barn and have irrigation equipment, as necessary for owning the property. Chair Baney said in her opinion it meets the soil fertility factor. Commissioners DeBone and Unger feel it doesn’t. Dave Doyle said they are looking at the totality, and it may not be necessary to go into detail on each one. Findings can reflect the deliberations. Regarding suitability for grazing, Commissioner Unger said you can graze, but it depends on how long and the conditions. It can be grazed to a point. Commissioner DeBone stated that you can do at best one or two cows for a few months. Chair Baney said that it has to be managed properly. They will have up-front costs of fencing and cross-fencing for an ongoing operation. Commissioner DeBone noted that this is not the valley. The season is short here and you need to have man-made grazing. It is not a natural condition of the area. Chair Baney said that it is not natural and if left on its own, it would not do much. But there are other things that can be done if it is properly enhanced. In regard to climatic conditions, Commissioner Unger noted that there is a short growing season of 91 days or less. This limits what you can grow. Commissioner DeBone stated that by amending the soil and tending to crops daily, you can get around this, but it takes a lot more work and is less profitable. Minutes of Board of Commissioners’ Business Meeting Monday, April 28, 2014 Page 7 of 13 The idea of EFU land was to protect productive farmland. This area is not naturally productive. Chair Baney asked what is naturally productive. A lot of things would be like this on their own. But she feels this property could be enhanced to make it more productive. Commissioner Unger said it is difficult to be a good farmer, but it is a choice. Commissioner DeBone noted that he talked with Bob Eberhardt regarding their dairy products. They get their milk from Tillamook County. Mr. Eberhardt mentioned that people have been trying to do that here for 100 years, but it is not reasonable to do it. Feed is expensive and you can’t grow enough to support the cows. Chair Baney said this might not be the right choice for a property. Ms. Craghead asked if the Board feels the short growing season would deter a reasonable farmer. Commissioner Unger stated that history shows that people do farm here. Chair Baney noted that sometimes the extreme cold is a factor, but this is part of the business. You have to manage and compensate appropriately. Other parts of the country have even more extremes to deal with. The next issue was the existing and future availability of water. Commissioner Unger said this defines agricultural land here. It allows you to be able to grow something. Most of the land was on farm deferral in the past, if on ir rigation. This signifies a farming operation here. Chair Baney added that farm deferral is a way to benefit the farmer. You can’t do anything without water. This encourages working the property. The applicant had references the DSL land but it never had water rights and would probably never get it. Commissioner DeBone agreed that you need to have water. The next consideration was existing land use patterns. Commissioner Unger stated that this is historic land, set up for farming long ago. Chair Baney said there is a fair amount of farmland in the local area. The right to farm laws allow for conflicting uses. Commissioner DeBone said he does not see those as being debatable. Regarding technological efforts relating to irrigation, Commissioner Unger feels they are required. Chair Baney noted that there can be a large cost associated with this. However, if she purchased land under its intended and current zone, this would be expected. Having the right system is a necessary expense. Minutes of Board of Commissioners’ Business Meeting Monday, April 28, 2014 Page 8 of 13 Commissioner DeBone said you need technology to apply water, fertilizer, feed, etc. However, the profit concept is not there. The soil cannot be made to be profitable. An individual might want to try it as a lifestyle, but a commercial farmer looking for a profit could not do it. Under accepted farming practices, Commissioner Unger said this is historical in nature. Considering adjacent or nearby lands, Ms. Craghead said that the previous questions were factors for item #3. It sounds that when taken as a whole, the majority of the Board is saying that it is still agricultural land. Commissioner Unger believes this is so. If there are water rights, you can farm it. Chair Baney noted that the unfortunate piece is profitability, which can be in large part determined by the management of the land. Commissioner DeBone said that he understands the lifestyle, but does not believe this is good land to farm for a profit. Its 100-year history shows it hasn’t worked for a variety of uses. It would be just for a lifestyle. Otherwise it would cost a large fortune up front to create a small fortune over time. He asked if they have to decide this is agricultural land as well as being farmed profitably. Ms. Craghead said that there are other factors to consider. Commissioner Unger stated that he does not believe it is profitable, but also doesn’t think this is the determining factor. Chair Baney added that a large corporation can’t make a profit on it, but living on the land and managing it properly, someone could. Commissioner DeBone said this means the family lives on the property to farm it. Ms. Craghead explained that farm use has to show an intent to make a profit. Commissioner DeBone said that families have lived there for decades and have done many things, but it was not profitable for them in the long run. Chair Baney explained that others have farmed smaller pieces of land and made it profitable. She can’t say for an individual as to whether their management would make it profitable. She feels there are new markets and technologies, and it can be done right. By doing nothing to it, they can’t farm it. It would cost $200,000 or more to put irrigation on it, so that skews the record since it has to have water. She is struggling with the assumptions in the record. Mr. Hamby was not able to do this. Commissioner DeBone said people have tried. You can’t say that they did not try hard enough and that the next guy would. Minutes of Board of Commissioners’ Business Meeting Monday, April 28, 2014 Page 9 of 13 Some tried very hard over the past 100 years and just couldn’t make it. This has not been profitable land. Commissioner Unger noted that the State definitions of agricultural and EFU land were not made with these conditions in mind. It is frustrating to take their rules and apply them here. It does not work that well here. Commissioner DeBone said that is why he came to this conclusion. Chair Baney stated that this needs to be looked at statewide. It is on a work plan to look at this but some don’t want to open that door. It is not black and white and there needs to be a middle ground. In regard to adjacent lands, Commissioner Unger said he feels it is consistent, and Commissioner DeBone agreed. Regarding topic #6, Chair Baney said this goes to #1, classification. Mr. Blikstad said that the majority of the soils are clas s 7, with little of the other. There are fingers of class 6 or better in some of it. The Hearings Officer was correct that this was not viewed as a farm unit with intermingled soils. Commissioner Unger stated that this is generally the challenge with land here. There are lava flows and ridges, with some soil fill. This creates areas with more depth along with those that have no soil. It won ’t be homogenous. Commissioner DeBone said he is not clear on what is wanted here. Chair Baney stated that the applicant suggest ed it was managed together as an independent unit and should be kept that way. The Hearings Officer said it was not managed together that way since the 1960’s. Commissioner Unger noted that the predominately class 7 soils have been mingled together, which is typical. Ms. Craghead said that there are all different soils classifications, and if you have class 7 or 8 intermingled with the better class soils, it can make it agricultural. The Hearings Officer found that they are not that intermingled and you could not hang your hat on this being agricultural land overall. Chair Baney stated that this came in as a tract and they are not looking at it as individual parcels. Ms. Craghead noted that she thinks she understands where they are going with this. Minutes of Board of Commissioners’ Business Meeting Monday, April 28, 2014 Page 10 of 13 Item #7 has to do with conformance to the comprehensive plan. The Hearings Officer found it to be in conformance. The Board agreed. Ms. Craghead said they will come back with a draft document. It appears the majority of the Board denies the rezone and plan amendment. She asked for confirmation. Commissioner Unger stated that it is agricultural land; poor, but the determining factor has to do with water rights and farm deferral status. The process is moving forward for this land to be in the UGB of Bend eventually. Factors show the use for EFU and resource or non-resource land will come into play, but it should be on the basis of whether the city can serve the land. Chair Baney said that if it was considered not as a tract but as individual parcels, this could be different. The owner has the ability to average out the soil and look at different farming methods. This is the hardest bar set in the state for land use. The tools to consider this are vague and you have to walk the line between view corridors, open space and opportunities to provide food and crops to local communities. Statewide land use planning is at a crossroads. There is a need to look at alternative zones and other options to try to protect the land, but allow for profitability. No one will live well on farm land here, but it could be profitable if it was managed right. Commissioner DeBone emphasized that he feels the conditions prevent this from being commercial land. He agrees with zoning, tax deferral and water, but this is not a commercial opportunity to farm for a profit. They can ’t support it without a lot of input and the value of what you can produce. This is not a profitable opportunity and probably never has been. No one can guarantee a good year every year, but this is marginal at all times. He leans the other way. UNGER: Move the application be denied. BANEY: Second. VOTE: UNGER: Yes. DEBONE: No. (Split vote.) BANEY: Chair votes yes. __________________________ Minutes of Board of Commissioners’ Business Meeting Monday, April 28, 2014 Page 11 of 13 Before the Board was Consideration of Approval of the Consent Agenda. UNGER: Move approval of the Consent Agenda, except the minutes which have not yet been reviewed. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: No. BANEY: Chair votes yes. Consent Agenda Items 7. Board Signature of Order No. 2014-013, Setting a Temporary Speed Limit of 25 MPH on Skyliners Road within the Construction Zone for the Skyliners Water Line Installation Project 8. Board Signature of Resolution No. 2014-047, Transferring Appropriations to the Sheriff’s Office Fund 9. Board Signature of Resolution No. 2014-048, Transferring Appropriations from the General Fund Contingency to the Grant Projects Fund 10. Board Signature of a Letter Appointing Dennis Pahlisch to the Central Oregon Regional Housing Authority (aka Housing Works) Board, through June 30, 2015 11. Approval of Minutes:  Business Meeting: April 23, 2014  Work Sessions: April 21 and 23, 2014  Annual Board Planning Retreat, January 10, 2014 CONVENED AS THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT 12. Before the Board was Consideration of Board Signature of Document No. 2014-185, an Intergovernmental Agreement between the Sheriff’s Office and the Sunriver Police Department regarding Use of the Sheriff’s Office Communications System. Mr. Anderson stated that this is an annual renewal of the maintenance agreement. The Sheriff’s Office owns the system and leases radios to the Districts. Minutes of Board of Commissioners’ Business Meeting Monday, April 28, 2014 Page 12 of 13 UNGER: Move signature of Document No. 2014-185. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: No. BANEY: Chair votes yes. 13. Before the Board was Consideration of Board Signature of Letters Accepting Bob Nelson’ Resignation, and Thanking him for his Service; and Appointing Mark Murray to the Sunriver Service District Board through August 31, 2015. DEBONE: Move signature of letters. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE BLACK BUTTE RANCH SERVICE DISTRICT 14. Before the Board was Consideration of Board Signature of Document No. 2014-184, an Intergovernmental Agreement between the Sheriff’s Office and the Black Butte Service District Police Department regarding Use of the Sheriff’s Office Communications System. DEBONE: Move signature of Document No. 2014-184. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 15. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District. The vouchers were not available for approval at this time. CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 16. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District. The vouchers were not available for approval at this time. RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 17. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County. The vouchers were not available for approval at this time. 18. ADDITIONS TO THE AGENDA Being no other items brought before the Board, the meeting adjourned at 11:25 a.m. DATED this 1 -'!:-Day of ~ 2014 for the Deschutes County Board of Commissionerr. Tam~ Anthony DeBone, Vice Chair ATTEST: Alan Unger, CommIssioner ~~ Recording Secretary Minutes of Board of Commissioners' Business Meeting Monday, April 28, 2014 Page 13 of 13 For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON PROCLAMATION DECLARING MAY 3, 2014 WILDFIRE COMMUNITY PREPAREDNESS DAY WHEREAS, there were 8,673 acres and one life lost to wildfire in Central Oregon last year; and WHEREAS, on a ten year average Central Oregon loses 35,809 acres to wildland fire which typically causes at least one evacuation every year; and WHEREAS, Deschutes County has 15 Firewise Communities who have the requirement of completing a community work day to maintain their status ; and WHEREAS, Deschutes County residents removed 32,991 cubic yards of woody debris from their property to protect themselves and their neighbors from catastrophic wildfire last year; and WHEREAS, Wildfire Community Preparedness Day will coincide with the prevalent FireFree event which takes place throughout Central Oregon, including Jefferson and Deschutes Counties; and WHEREAS, the long standing tradition of preparedness and cooperation of the community members and agency personnel coordinated in part by Project Wildfire has set an example throughout the Northwest; NOW, THEREFORE, BE IT RESOLVED that the Deschutes County Board of Commissioners does hereby proclaim May 3rd to be Wildfire Community Preparedness Day and we continue to empower all community residents to take steps toward decreasing their risk from wildland fire. DATED this _____ day of __________________, 2014 by the Deschutes County Board of Commissioners. _____________________________ TAMMY BANEY, Chair _____________________________ ANTHONY DEBONE, Vice Chair _____________________________ ALAN UNGER, Commissioner ATTEST: ______________________ Recording Secretary Deschutes County Board of Commissioners l300 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 April 28, 2014 Please see directions for completing this document on the next page. DATE: April 17,2014 FROM: Paul Blikstad Department CDD Phone # 6554 TITLE OF AGENDA ITEM: Board deliberations on applications for a Plan Amendment to amend the comprehensive plan designation from Agriculture to Rural Residential Exception Area, and a Zone Change from Exclusive Farm Use (EFU-TRB) to Multiple Use Agricultural (MUA-10). PUBLIC HEARING ON THIS DATE? Yes BACKGROUND AND POLICY IMPLICATIONS: The Board held an initial public hearing on February 5,2014, and took oral and written testimony at that hearing. The Board continued the public hearing to March 12,2014 for any additional testimony, and held an additional hearing. The applicant, NNPIV -NCR, LLC (referred to as "Newland") submitted the plan amendment and zone change applications for property adjacent to Butler Market Road near Bend, which encompasses approximately 171 acres. These applications went before the County Hearings Officer who has recommended denial of the applicant's request. Because the applications involve land designated Agriculture under Statewide Planning Goal 3, the Board is the decision making body on the applications. A de novo public hearing before the Board is required under Deschutes County Code 22.28.030(C) for these applications. FISCAL IMPLICATIONS: The Board's hearing costs are factored into the application fees. RECOMMENDATION & ACTION REQUESTED: The Board is required to issue a written decision on the Newland applications. A written decision will be drafted for the Board's review after deliberations, and mailed out to all parties. ATTENDANCE: Paul Blikstad, Laurie Craghead DISTRIBUTION OF DOCUMENTS: Planning Division staff will distribute the Board's written decision on these applications. Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend. Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM To: Deschutes County Board of Commissioners From: Paul Blikstad, Senior Planner Date: April 18, 2014 Re: PA-13-1/ZC-13-1, Plan Amendment and Zone Change from Exclusive Farm Use (EFU-TRB) to Multiple Use Agricultural (MUA-1 0) for approximately 171 acres adjacent to Butler Market Road in Bend. BACKGROUND: The applicant, referred to as Newland, applied for a Plan Amendment to amend the comprehensive plan designation 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 171 acres. The 171 acres consists of 9 tax lots, and 8 legal lots of record (parcels). The Board has held a public hearing on the subject applications, and the written record was left open for additional comments. The Board has scheduled the deliberations on these applications for Monday, April 28th • Laurie Craghead and I have prepared the attached matrix to assist you in making your decision. We are attempting to get it before you so that you have adequate time to review the matrix and any part of the record you need to review. I believe you already have copies of the Hearings Officer's decision, the DLCD/DOA transmittal letter, and the applicant's agronomic study. There is an extensive file on these applications, most of which includes the applicant's submittals (from Liz Fancher and Steve Hultberg). Feel free to contact me at your convenience. Quality Services Performed with Pride NEWLAND PAPA/ZONE CHANGE MATRIX The critical question in reviewing the Newland applications is: “Does the property meet the definition of “Agricultural Land ” under the State regulations.” (Oregon Administrative Rules 660-033-0020(1)). If the Newland property does meet the definition of agricultural land, these applications cannot be approved, since the applicant is not proposing an Exception to Goal 3, Agricultural Lands. Issue Board Options Information in Record Staff Comment 1. What is the classification of the soils on the property? The Board must answer the next question to determine the soil classification of the subject property. See answer to #2. 2. Should the soils analysis for the Plan Amendment and Zone Change applications be conducted on an individual parcel or lot basis, or on a “tract” basis? a. The property should be reviewed on an individual parcel or lot basis (the Hearings Officer’s determination). b. The property should be reviewed as a unit or tract. The Hearings Officer’s decision determined that the soils analysis should be done on an individual parcel basis. The applicant submitted evidence into the record indicating that using the individual parcel basis, 6 out of the 8 legal parcels of the Newland property were predominantly Class 7 soil, and 2 of the 8 parcels are predominantly Class 3-6 soils. The record indicates that the “tract” is predominantly Class 7 soils (67%) This determination requires answering the next questions. Based on the applicant’s submittals, requiring viewing each lot would make tax lots 401 and 405 “agricultural land,” and not eligible for a rezone to MUA-10. If the Board determines that the soils analysis should be as a tract, then the property would meet the first prong test, by being predominantly (67%) Class 7 soils. 3. Does the land meet Goal 3? i.e. is the land “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; & * accepted farming practices.” a. The seven factors, along with consideration of the profitability of farming the land, indicate that the land is not suitable for farming. b. The seven factors, along with consideration of the profitability of farming the land, indicate that the land is suitable for farming. c. The seven factors, along with consideration of the profitability of farming the land, indicate that some of the subject lots are suitable for farming but some are not. The Hearings Officer found that based on the seven factors, the property was suitable for farm use. The applicant has submitted two agronomic studies, analyzing the “profitability” of several types of potential farm uses on the Newland property. They are: * horse boarding and training for 19 horses; * llama enterprise consisting of 39 llamas raised for pets and wool production; * 3 separate cattle operations; * bluegrass crop for seed; and * alfalfa hay operation. The net losses range from $6,368.66 (horse boarding and training, to $56,044.20 (cow/calf pastured). The applicant is relying heavily on the lack of profitability and not the other factors for the subject property not being suitable for farm use. The past history of this parcel indicates it has been farmed, and according to COID, it has been historically farmed for many years. While case law does say that profitability can and should be considered when determining whether the land is suitable for farm use, the Board will need to review all the factors as a group and determine how much weight to give each factor. Issue Board Options Information in Record Staff Comment 4. Is the property (the 67% Class 7 soils) suitable for farm use, based on: Soil Fertility a. The costs of fertilizing the soil is more than a reasonable farmer would incur to farm this land. b. The cost of fertilizing the soil is a reasonable expense for farming the land when viewed as a tract. c. The cost of fertilizing the soil is a reasonable expense for farming some of the subject lots but not others. Applicant’s soils study: “To maintain a minimum level of essential nutrients for proper crop growth multiple yearly applications of very high rates of fertilizer and soil amendments are required. Without soil sampling, lab analyses, proper fertilization and soil amendments these soils are non-productive and infertile.” The applicant’s soils analysis shows that the property, when viewed as a tract, lacks fertility. The Hearings Officer found on page 29 of the decision the following: “Thus, the fertility of the Class VII and VIII soils on the subject property could be improved with fertilizer to a sufficient degree to sustain a grass seed or grass hay operation. The applicant does not explain why a reasonable farmer would not be willing to incur these relatively low fertilizer expenses for such operations.” DLCD comments: “According to the applicant’s materials the subject tract has adequate soil fertility for pasture, hay production and growing Christmas trees. The attached aerial views do not appear to show lands so compromised in soil fertility that they are unable to support a farm use of any type.” Suitability for grazing a. The land is not suitable for grazing based on applicant’s evidence. b. The land is suitable for grazing based on other evidence in the record. c. Some of the subject lots are suitable for grazing and some are not. Applicant’s soils study: “Soil, vegetation, climate and landscape are determinant factors for the suitability for grazing of livestock. Limitations that are recognized on this site include very low available water for plant growth. Restricted depth limits seeding only to drought tolerant species, and rock outcrop limits the areas suitable for grazing. The cold climate and soil temperatures delay growth of forage and low water retention in the soil and no summer moisture shortens the growing season.” DLCD comments: “The subject tract is suitable for livestock grazing. It is also large enough to be commercially significant either on its own or in conjunction with other properties.” The property has one hundred three (103) acres of irrigation water rights are available for irrigating the property for pasture. The Hearings Officer found on page 32 of the decision the following: “I find that without additional information explaining the basis for such high expenses, in light of the property’s historical use for cattle grazing, the applicant has not met its burden of proving the subject property is unsuitable for livestock grazing.” Before the BOCC, the applicant stated that the Hearings Officer misunderstood the economic analysis and that the cost of the large amount of fertilizer needed would deter any reasonable farmer from undertaking that expense to bring the land back to a condition that would provide for profitable farming. Issue Board Options Information in Record Staff Comment Climatic conditions a. The climatic conditions prevent commercial agriculture. b. The climatic conditions are not ideal for commercial agriculture but would not deter the reasonable farmer from farming the subject land. Applicant’s soils study: “Comparison of data shows the Madras area, which is known to successfully produce a large variety of field crops, has greater than 60 days with less chance of having a killing frost, has twice the growing season, and 117% greater number of growing degree days as the Bend weather station and this parcel. Climatic conditions that exist on this parcel greatly restrict production of field crops.” DLCD comments: “These climatic conditions are not ideal for commercial agriculture. However, commercial agriculture is active in similar settings in the local area and throughout the mountain and intermountain regions of the United States. The Hearings Officer found on page 32 of the decision the following: “I find the Central Oregon climate certainly makes farm use more challenging, but I am not persuaded by the applicant’s evidence that climatic conditions would dissuade a reasonable farmer from putting the subject property into agricultural use.” The climatic conditions would be similar in most of the county where agricultural/farm use is occurring. Existing and future availability of water for irrigation purposes There is no dispute regarding this factor. Applicant acknowledges that the property has approximately 103 acres of water rights. Those rights are on tax lots 304, 300, 302/305, 301, 401 and 406 (tax lots 206 and 405 have no water rights). DLCD states that the property has over 100 acres of water rights. The Hearings Officer found on page 33 of the decision the following: “The record indicates water is available for the subject property now and in the future for farm irrigation purposes.” The record indicates that the property has 103 acres of water rights, available for agricultural/farm use. Existing land use patterns a. Development around the subject properties is too developed to allow for farming on the tract. b. The subject property was farmed previously without hindrance from the surrounding properties and there are surrounding hobby farms that would not interfere with farming the subject land. c. The subject property was farmed previously without hindrance from the surrounding properties and there are surrounding hobby farms that would not interfere with farming the some of the subject lots but would the others. MUA-10 zoning located directly west, southwest, south, and southeast. EFU zoning directly north across Butler Market Road, east and northwest. Some hobby farming in the MUA-10 and EFU zones. Also some farming in the EFU zone. Many homes in the MUA-10 zone, two churches. The Hearings Officer found on page 33 of the decision the following: “DLCD and ODA argue, and the Hearings Officer agrees, that there is nothing about this land use pattern that would limit “responsible farming practices” or serve to reduce the property’s value for agriculture.” Issue Board Options Information in Record Staff Comment Technological and energy inputs required a. The cost of technology and other inputs is too great such that a reasonable farmer would not undertake farming the subject property. b. Although the property has been neglected for quite a while and it will take quite a bit of effort to bring the land back to a suitable farm use, the requirements to do so are not insurmountable such that a reasonable farmer would undertake the effort to farm the land as a tract. c. Although the property has been neglected for quite a while and it will take quite a bit of effort to bring the land back to a suitable farm use, the requirements to do so are not insurmountable such that a reasonable farmer would undertake the effort to farm some of the subject lots but not all. Applicant’s soils study: “Accepted farming practices in Central Oregon to raise forage crops generally require and include a relatively flat to gently sloping parcel that has a moderately deep soil with readily available irrigation water in adequate amounts. Irrigation begins in April and ends in October. The site will produce 2 to 3 cuttings of hay or continuous rotational grazing by limited numbers of livestock. Fertilization with multiple yearly applications is required to sustain the plants and produce a crop. This parcel requires technology and energy inputs over and above that considered acceptable farming practices. Excessive fertilization and soil amendments, very frequent irrigation applications pumped from a pond with limited availability; and marginal climatic conditions restrict cropping alternatives.” DLCD comments: “The subject property appears to have been neglected and untended for some time. Recovering neglected properties takes effort but it can be done and is not uncommon. The soils can be amended and fertilized. The irrigation pond(s) can be improved. Irrigated lands in central Oregon typically receive about 2.5 acre-feet of water per irrigation season. The water applied to the subject property would not be in excess of what is applied to other lands in the Central Oregon Irrigation District. The property has had irrigation systems and equipment that either remain in place or have been removed by prior operators or the current owner. Any shortcomings with the irrigation system are a function of management and not a problem with the subject property.” The Hearings Officer found on page 34 of the decision the following: “In her response to DLCD and ODA, Ms. Fancher argued that although the subject property “has not been used for agricultural purposes for quite some time” it has not been “neglected.” She asserts the cost of amending, fertilizing and irrigating the soils on the subject property “is a cost that contributes to making it unprofitable to farm the subject property.” …Based on these findings, I am not persuaded the technological and energy inputs required to put the subject property to profitable farm use are excessive.” Accepted farming practices a. A reasonable farmer would not be able to engage in accepted farming practices in order for the subject property to be suitable for farming. b. A reasonable farmer could engage in accepted farming practices in order for the subject property to be suitable for farming. Applicant’s January 17th submittal: “Accepted farming practices were addressed in Economic Analysis. These practices do not make a profit due, in large part, non-agricultural soils.” DLCD comments: “Common and accepted farming practices include, but are not limited to, efforts involving hay and livestock production, some cereal grain production and boarding and training equines. Nothing about the subject property indicates that it could not operate with accepted farming practices common in the area.” The Economic Analysis submitted by the applicant indicates that the current accepted farming practices that might occur on the property would not be profitable. The Hearings Officer found on page 35 of the decision the following: “For these reasons, and considering past livestock grazing and hay production on the subject property, I find the applicant has failed to demonstrate that a reasonable farmer would not put the subject property to farm use within one or more of these three accepted farming practices.” For the proceedings before the Board, the applicant provided arguments by its legal counsel and statements by the economist that the Hearings Officer misinterpreted the economic analysis because the cost of restoring the soil to farmable quality should not have been included all in the first year but spread over a course of years. Issue Board Options Information in Record Staff Comment 5. Land that is necessary to permit farm practices to be undertaken on adjacent and nearby lands. a. The subject property is not necessary to permit farm practices to be undertaken on adjacent and nearby lands. b. The subject property is necessary to permit farm practices to be undertaken on adjacent and nearby lands. The applicant submitted the following: “NNP Property not necessary to permit farm practices on these properties. No farming on adjacent lands. Farming on nearby EFU lands to the north across Butler Market Road. Five existing homes on NNP property also separate NNP from these farm properties. Limited farming on EFU lands to the east; the nonagricultural lands found between NNP property and these farms buffer uses and make shared operations impracticable.” The above statement is somewhat inconsistent with the applicant’s statements that some of the surrounding MUA and EFU properties do have hobby farms. There is no evidence in the record, however, that there are any commercial farms on the adjacent lands. DLCD had no comments on this criterion. The Hearings Officer found on page 35 of the decision the following: “As set forth in the Findings of Fact above, the area surrounding the subject property is comprised of both MUA-10 zoned land that is developed with rural residences and “hobby farms” and EFU-zoned land either that is not engaged in farm use or supports small-scale agricultural activities. Under these circumstances, the Hearings Officer concurs with the applicant that the subject property is not land necessary to permit farm practices on any of the adjacent or nearby EFU-zoned parcels.” The record does not include evidence that the subject land, taken as a tract or by individual lots, is necessary to permit farm practices on adjacent or nearby lands. 6. Land in capability classes other than I-IV/I- VI that is adjacent to or intermingled with lands in capability classes I-IV/I-VI within a farm unit shall be inventoried as agricultural lands even though this land may not be cropped or grazed. a. The subject lots with soil that is other than Class 1-VI are intermingled within a farm unit with lots that are Class 1-VI. b. The subject lots with soil that is other than Class 1-VI are not intermingled within a farm unit with lots that are Class 1-VI. The applicant’s burden of proof states: “All parts of the subject property were studied by the applicant’s soils analysis, Exhibit A. The analysis shows that the predominant soil type found on the subject property is Class VII, nonagricultural land with or without irrigation water rights. Some Class VI soils are intermingled with the nonagricultural soil not vice versa. As a result, this rule does not require the Class VII soils to be classified agricultural lands.” DLCD/ODA submitted the following comments: “The applicant’s materials and the attached aerial views clearly show that these areas [Class I- VI and Class VII and VII soils] have been managed together as irrigated units. Therefore, the lands in this area should be inventoried as agricultural lands.” The Hearings Officer found on page 36 of the decision the following: “The Hearings Officer finds the agencies’ response is off the mark. The question is not whether these intermingled soils are part of “irrigated units.” Rather, the question is whether the soils are located on a “farm unit.” –i.e. whether the subject property is or has been a “farm unit” or part of a “farm unit.” I find the evidence in the record indicates the subject property has not been managed by itself, or in conjunction with other lands, as a single farm unit since the 1960’s, and therefore the agricultural and nonagricultural soils on the subject property are not intermingled within a “farm unit.” 7. Is the application in conformance with the Deschutes County Comprehensive Plan, as well as with the Rezoning standards under DCC 18.136.020? a. The request complies with the Comprehensive plan and Rezoning standards. b. The request does not comply with the Comprehensive plan and Rezoning standards. The Hearings Officer found that the application is in conformance with the Deschutes County Comprehensive Plan and rezoning standards. Staff recommends that the Board adopt the Hearings Officer’s findings on these criteria. Staff does not recall any testimony that would cause the County to overturn the Hearings Officer’s findings on the rezoning standards. Board of Commissioners’ Business Meeting Agenda Monday, April 28, 2014 Page 1 of 6 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, APRIL 28, 2014 _____________________________ Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend __________________________ 1. PLEDGE OF ALLEGIANCE 2. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the official record of that hearing. 3. CONSIDERATION of the Reading of a Proclamation, Declaring May 3, 2014 Wildfire Community Preparedness Day – Alison Green, Project Wildfire Program Director 4. CONSIDERATION of Chair Signature of Document No. 2014-135, Amending an Intergovernmental Agreement with Oregon Health Authority regarding Public Health and Behavioral Health Services – Lori Hill & Jessica Jacks, Health Services Suggested Action: Move Board signature of Document No. 2014-135. 5. CONSIDERATION of First and Second Readings by Title Only, and Adoption by Emergency, of Ordinance No. 2014-010, Amending Title 18 of Code, Incorporating Changes to the Oregon Revised Statutes and Oregon Administrative Rule regarding the Exclusive Farm Use Zone – Paul Blikstad, Community Development Suggested Actions: Move first and second readings by title only, and adoption by emergency of Ordinance No. 2014-010. Board of Commissioners’ Business Meeting Agenda Monday, April 28, 2014 Page 2 of 6 6. CONSIDERATION of Board Deliberations regarding a Decision on the Newland Land Use Appeal (Changing the Designation of Land from Agriculture/EFU to Rural Residential/MUA)– Kevin Harrison, Community Development; Laurie Craghead, County Counsel Suggested Action: Deliberate and Provide Instruction to Staff. CONSENT AGENDA 7. Board Signature of Order No. 2014-013, Setting a Temporary Speed Limit of 25 MPH on Skyliners Road within the Construction Zone for the Skyliners Water Line Installation Project 8. Board Signature of Resolution No. 2014-047, Transferring Appropriations to the Sheriff’s Office Fund 9. Board Signature of Resolution No. 2014-048, Transferring Appropriations from the General Fund Contingency to the Grant Projects Fund 10. Board Signature of a Letter Appointing Dennis Pahlisch to the Central Oregon Regional Housing Authority (aka Housing Works) Board, through June 30, 2015 11. Approval of Minutes:  Business Meeting: April 23, 2014  Work Sessions: April 21 and 23, 2014  Annual Board Planning Retreat, January 10, 2014 CONVENE AS THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT 12. CONSIDERATION of Board Signature of Document No. 2014-185, an Intergovernmental Agreement between the Sheriff’s Office and the Sunriver Police Department regarding Use of the Sheriff’s Office Communications System 13. CONSIDERATION of Board Signature of Letters Accepting Bob Nelson’ Resignation, and Thanking him for his Service; and Appointing Mark Murray to the Sunriver Service District Board through August 31, 2015 Board of Commissioners’ Business Meeting Agenda Monday, April 28, 2014 Page 3 of 6 CONVENE AS THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT 14. CONSIDERATION of Board Signature of Document No. 2014-185, an Intergovernmental Agreement between the Sheriff’s Office and the Sunriver Police Department regarding Use of the Sheriff’s Office Communications System CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 15. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 16. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 17. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County 18. ADDITIONS TO THE AGENDA _________ ______________________________________ Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call (541) 388-6572, or send an e-mail to bonnie.baker@deschutes.org. _________ ______________________________________ PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2) (b), personnel issues; or other executive session items. ______________________________________ Board of Commissioners’ Business Meeting Agenda Monday, April 28, 2014 Page 4 of 6 FUTURE MEETINGS: (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners’ meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Monday, April 28 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Monday, May 5 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Wednesday, May 7 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Wednesday, May 14 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Monday, May 19 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Monday, May 26 Most County offices will be closed to observe Memorial Day Tuesday, May 27 through Friday, May 30 Budget Committee Meetings and Department Presentations Board of Commissioners’ Business Meeting Agenda Monday, April 28, 2014 Page 5 of 6 Monday, June 2 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Tuesday, June 3 3:30 p.m. Local Public Safety Coordinating Council Meeting 5:00 p.m. Bend Chamber of Commerce Event Wednesday, June 4 10:00 a.m. Board of Commissioners’ Business Meeting 2:00 p.m. Joint Work Session with the La Pine City Council, La Pine City Hall Monday, June 9 – Tuesday, June 10 Association of Oregon Counties’ Spring Conference – Hood River Wednesday, June 11 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Thursday, June 12 7:00 a.m. State of the Community – City/County – Chamber of Commerce – Riverhouse Monday, June 16 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Monday, June 23 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Board of Commissioners’ Business Meeting Agenda Monday, April 28, 2014 Page 6 of 6 Tuesday, June 24 11:00 a.m. Annual Luncheon Meeting of Board of Commissioners with the Black Butte Ranch County Service District Board – Black Butte Ranch 1:00 p.m. Employee Benefits Advisory Committee Meeting Wednesday, June 25 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Thursday, June 26 5:30 p.m. Joint Meeting of the Board of Commissioners and Planning Commission Thursday, April 26 8:30 a.m. Performance Management & Department Update – Natural Resources – Road Department Monday, June 30 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Wednesday, July 2 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Thursday, July 3 8:00 a.m. Joint Meeting of Board of Commissioners with Sisters City Council, Sisters City Hall Monday, July 4 Most County offices will be closed to observe Independence Day _________ ______________________________________ Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call (541) 388-6572, or send an e-mail to bonnie.baker@deschutes.org. _________ ______________________________________