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HomeMy WebLinkAboutNewland Staff Report - Decision MatrixDeschutes 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.