Loading...
HomeMy WebLinkAbout2014-07-07 Business Meeting Minutes Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 1 of 15 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, JULY 7, 2014 _____________________________ Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend __________________________ Present were Commissioners Tammy Baney, Anthony DeBone and Alan Unger. Also present were David Doyle and Laurie Craghead, County Counsel; Kevin Harrison, Peter Gutowsky and Paul Blikstad, Community Development; and six 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 Board Approval and Signature of Document No. 2014-376, Findings and Decision on an Application for a Plan Amendment and Zone Change from Exclusive Farm Use to Multiple Use Agricultural (Newland Property). Mr. Blikstad said deliberations took place on April 28, and he was directed to revise some of the language. The Board voted two to one to uphold the Hearings Officer’s denial of the application. He gave an overview of the changes. On page 2, paragraph 1, ‘capable’ was amended to ‘suitable for’. On page 3, paragraph 1, a parenthesis and a 0 were removed. On page 3, third paragraph from the bottom, the underline was eliminated. Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 2 of 15 On page 5, the first full paragraph, the word was changed to ‘practices ’. On page 5, last paragraph, a footnote was listed but there was no footnote language, so it was removed. On page 7, the font size was changed on ‘concur with findings’. The signature date was changed to July. None of these changes were substantive. Commissioner Unger noted that the document substantially reflects their decision. Commissioner DeBone said he won’t support it, he still has a vision of agricultural uses being for profit, and this does not have profitability. Commissioner Unger stated that this could apply to many parcels and would not be a narrow ruling. It needs to be considered in the bigger context. Commissioner DeBone questioned the last sentence regarding this being more of a rural lifestyle choice than making a living. Ms. Craghead will make sure it is edited. Chair Baney asked for one more legal review, and bring back the document to the July 9 business meeting for final approval. 4. Before the Board was a Continuation of Deliberations on the Appeal of the Hearings Officer’s Decision on Application No. A-13-8, regarding Whether the Conceptual Master Plan Approval for Thornburgh Destination Resort Has Been Initiated. Kevin Harrison gave an overview and stated that at the last discussion on this issue, the Board went condition by condition, ending with #5. The decision matrix is color coded, using the conditions of approval as a guide, and referencing the Hearings Officer’s decision. Ms. Craghead brought up some corrections regarding the applicant’s position. They agree they did not complete or did not substantially comply with requirements, but felt they did not have to, going back to the original Hearings Officer’s decision. Commissioner Unger said he re-read the first Hearings Officer’s decision and substantially agrees with it. Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 3 of 15 Mr. Harrison stated that they finished with #5. Items #6 is easements and rights of way on the final plat. DEBONE: Move that item #6 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #6 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that since it was not exercised or substantially exercised, and is a contingent obligation, the applicant is not at fault. UNGER: Second; this would be obtained at final plat. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ The Board addressed #7, road names reviewed and approved by the Road Department. DEBONE: Move that item #7 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #7 was not substantially exercised. UNGER: Second. Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 4 of 15 VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that since it was not exercised or substantially exercised, and is a contingent obligation, the applicant is not at fault. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ In regard to item #12, which is commercial, cultural and entertainment uses relating to visitors to the resort, the following action was taken. DEBONE: Move that item #12 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #12 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that since it was not exercised or substantially exercised, and is a contingent obligation, the applicant is not at fault. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 5 of 15 DEBONE: Move that item #14, including C and D, was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #14 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that the applicant is not at fault. UNGER: Second; this would be obtained at final plat. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Item #15 relates to temporary structures at the resort site during development. DEBONE: Move that item #15 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #15 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 6 of 15 DEBONE: Move that since it was not exercised or substantially exercised, and is a contingent obligation, the applicant is not at fault. UNGER: Second; this would be obtained at final plat. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Fire protection requirements for ingress and egress are in item #17. DEBONE: Move that item #17 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #17 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that since it was not exercised or substantially exercised, and is a contingent obligation, the applicant is not at fault. UNGER: Second; this would be obtained at final plat. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Item #18 relates to no building on slopes greater than 25% at the site, when development occurs. DEBONE: Move that item #18 was not exercised. UNGER: Second. Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 7 of 15 VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #18 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that the applicant is not at fault. This occurs at actual development. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. __________________________ Item #20 has to do with cumulative density. DEBONE: Move that item #20 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #20 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that the applicant is not at fault. UNGER: Second. Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 8 of 15 VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Mr. Harrison read the clause relating to #21, construction of the phases. DEBONE: Move that item #21 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #21 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that the applicant is not at fault. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Item #25 relates to the erosion control plan. DEBONE: Move that item #25 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 9 of 15 DEBONE: Move that item #25 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move the applicant is not at fault. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Mr. Harrison read the clause relating to item #26, lot size, width and setbacks. DEBONE: Move that item #26 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #26 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that the applicant is not at fault. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 10 of 15 Item #27 was in regard to road widths. DEBONE: Move that item #27 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #27 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that the applicant is not at fault. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Regarding #28, the MOU with the BLM and related mitigation, Commissioner Unger said this is a contingent obligation. Commissioner DeBone stated the existing MOU was dated September 28, 2005; he asked if this was the final document. Mr. Harrison said this condition refers to the document during development. Ms. Craghead added that it was on appeal during the FMP process and was remanded. This is an ongoing obligation. DEBONE: Move that item #28 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 11 of 15 DEBONE: Move that item #28 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that the applicant is not at fault. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Item #29 has to do with abiding by th e MOU with ODOT. Chair Baney asked if this was the guiding document from 2005 and if that is the standard. Mr. Harrison said that it would be triggered by impacts to State roadways. It is an agreement with the BLM, ODOT and the developer regarding mitigation measures that trigger as development occurs. They are bound by the standards of the 2005 agreement. DEBONE: Move that item #29 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #29 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that the applicant is not at fault. UNGER: Second. Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 12 of 15 VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Exterior lighting is covered by item #31. DEBONE: Move that item #31 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #31 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move the applicant is not at fault. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Item #32 relates to visitor-oriented facilities. These are under A, B, C in Code, to physically provide or secure upon the closure of sales, rental or lease. DEBONE: Move that item #32 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 13 of 15 DEBONE: Move that item #32 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that the applicant is not at fault. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Open space restoration is #34; this does not apply to improved areas. DEBONE: Move that item #34 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #34 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that the applicant is not at fault. UNGER: Second; this would be obtained at final plat. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Minutes of Board of Commissioners’ Business Meeting Monday, July 7, 2014 Page 14 of 15 Item #35 covers contracts with owners regarding overnight lodging. DEBONE: Move that item #35 was not exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that item #35 was not substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that the applicant is not at fault. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) __________________________ Commissioner DeBone said these are all very specific, with the same logic for all. Ms. Craghead asked if they did adopt the Hearings Officer’s findings for the conditions shown in green and blue. Chair Baney asked if this was the first decision. Dave Doyle said that there were separate determinations of the Hearings Officer’s decision points. Ms. Craghead stated that these were not relevant per the Hearings Officer; they did not have to be considered as contingent obligations. They made a different decision as the Hearings Officer, but the result is the same, the CMP was initiated. It is just from a different direction. Commissioner DeBone noted that it is the same conclusion through a different path. Commissioner Unger added that he substantially agrees with the first Hearings Officer decision, and feels it was the right logic. Chair Baney said she doesn't disagree with the first decision, but does not agree with the applicant's reasons as to why they could not have filed for an extension. They could have done this for a period of time, but from either nine months or one and one-half years, they did not do this. It expired and they did not file for remand. In her opinion, the developers were not moving forward in good faith. She feels this sets the bar extremely low. UNGER: Move that the CMP was initiated within the proper timeframe. DEBONE: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) Staff will prepare the final decision for the Board's consideration. 5. ADDITIONS TO THE AGENDA None were offered. Being no other items brought before the Board, the meeting adjourned at 10 :45 a.m. DATED this t.f!J Dayof ~r 2014 for the Deschutes County Board of Commissioner . T ~ Anthony DeBone, Vice Chair ATTEST: Alan Unger, Commissioner ~~ Recording Secretary Minutes of Board of Commissioners' Business Meeting Monday, July 7, 2014 Page150f15 Board of Commissioners’ Business Meeting Agenda Monday, July 7, 2014 Page 1 of 4 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, JULY 7, 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 Board Approval and Signature of Document No. 2014-376, Findings and Decision on an Application for a Plan Amendment and Zone Change from Exclusive Farm Use to Multiple Use Agricultural (Newland Property) – Paul Blikstad, Community Development Suggested Actions: Review and move signature of Document No. 2014-376. 4. CONTINUATION of Deliberations on the Appeal of the Hearings Officer’s Decision on Application No. A-13-8, regarding Whether the Conceptual Master Plan Approval for Thornburgh Destination Resort Has Been Initiated – Kevin Harrison, Community Development Suggestion Actions: Deliberate; provide direction to staff. Board of Commissioners’ Business Meeting Agenda Monday, July 7, 2014 Page 2 of 4 5. 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. ______________________________________ 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, July 7 10:00 a.m. Board of Commissioners’ Business Meeting Wednesday, July 9 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Monday, July 21 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Tuesday, July 22 1:00 p.m. Employee Benefits Advisory Committee Meeting Board of Commissioners’ Business Meeting Agenda Monday, July 7, 2014 Page 3 of 4 Thursday, July 24 9:00 a.m. Performance Management & Department Update – Natural Resources Management – at Road Monday, July 28 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Monday, August 4 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Tuesday, August 5 3:30 p.m. Local Public Safety Coordinating Council Meeting Wednesday, August 6 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Thursday, August 7 9:00 a.m. Performance Management & Department Update – 9-1-1 County Service District Wednesday, August 13 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Monday, August 18 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Wednesday, August 20 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, July 7, 2014 Page 4 of 4 Monday, August 25 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Wednesday, August 27 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Thursday, August 28 9:00 a.m. Performance Management & Department Update – Sheriff’s Office, Part I Tuesday, September 2 3:30 p.m. Local Public Safety Coordinating Council Meeting 5:00 p.m. County College Presentation Wednesday, September 3 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Thursday, September 4 9:00 a.m. Performance Management & Department Update – Sheriff’s Office, Part II Wednesday, September 10 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) _________ ______________________________________ PLEASE NOTE: At any time during this meeting, an executive session could be called to address is sues 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. ______________________________________ 1 LOYAL LAND DECISION MATRIX The critical questions in reviewing the Loyal Land application are: “Have the conditions of the permit or approval for the Conceptual Master Plan (CMP) for Thornburgh Destination Resort been substantially exercised and is any failure to fully comply with the conditions the fault of the applicant.” (DCC 22.36.020(A)(3)). If the application meets these criteria, then the CMP has been “initiated” and there is no expiration date for that approval. If the CMP has not been initiated, then the approval has expired and the resort has no land use entitlements. Issue Board Options Information in Record Staff Comment 1. Determine whether each of the 38 conditions of approval must be “substantially exercised” or must the 38 conditions of approval, when viewed as a whole, have been “substantially exercised”? The Board must choose the appropriate method of analysis. In LUBA No. 2012-042, LUBA found that the County had the option to determine the correct approach. The Hearings Officer made findings on DCC 22.36.020(A)(3) based on the conditions viewed as a whole. The parties did not contest that point. Sample motion for BOCC: “Move that the BOCC finds that the appropriate analysis is whether the conditions of approval contained in the CMP, when viewed as a whole, have been substantially exercised.” 2. Define the term “substantially exercised.” a. Adopt Hearings Officer’s definition. b. Adopt other definition. The Hearings Officer defined “substantially exercised” to mean “performing or carrying out a condition of approval to a significant degree but not completely.” This definition was not challenged by any party and was not disturbed by LUBA. Sample motion for BOCC: “Move that the BOCC adopt the Hearings Officer’s definition of ‘substantially exercised.’” 3. Reconcile dispute regarding the meaning of the words “exercise” and “comply” in DCC 22.36.020(A)(3): ‘Where construction is not required by the approval, the conditions of a permit or approval have been substantially exercised and any failure to fully comply with the conditions is not the fault of the applicant.’ a. Adopt Hearings Officer’s definition. b. Adopt Opponent’s definition. In LUBA No. 2012-042, LUBA gave the County the following instructions: “On remand…the Hearings Officer must be able to find both that the 38 conditions of approval, viewed as a whole, have been substantially exercised and that for any of the 38 conditions of approval where there has been a failure to fully exercise the condition, the applicant is not at fault.” (LUBA No. 2-12-042; p.20) In other words, LUBA viewed “exercise” and “comply” in the context of the code to mean the same thing. The Hearings Officer followed those instructions. (HO decision; p. 14) The Applicant argues that “exercise” and “comply” have different meanings in the context of the code. Exercise requires an act; comply means to obey. Therefore, the Applicant can be in full compliance even if no action has taken place with respect to a condition. (Applicant’s June 18, 2014 submittal; pages 4-5) The Opponent argues that Applicant’s assertions are not consistent with the LUBA decision and, because they were not presented during the LUBA appeal, are barred from this proceeding. (Opponent’s June 11, 2014 submittal; pages 6-7) Sample motion for BOCC: “Move that the BOCC adopt the Hearings Officer’s/Applicant’s usage of the terms “exercise” and “comply” in DCC 22.36.020(A)(3).” 2 Issue Board Options Information in Record Staff Comment 4. Determine the effective two-year approval period for the CMP. a. Use effective date determined by LUBA (11/18/11). b. Use original date determined by Hearings Officer (12/7/11). In LUBA No. 2012-042, LUBA recalculated the expiration date for the CMP as November 18, 2011. That date was not appealed, and has not been challenged in subsequent proceedings. As a practical matter, the two-year period is not really at issue because the evidence relative to whether the 38 conditions of approval were substantially exercised falls within the effective two-year period identified by the Hearings Officer or LUBA. Sample motion for BOCC: “Move that the BOCC find that all of the evidence presented in this matter, relative to the conditions of approval, fall within the effective two-year period.” 3 Issue Board Options Information in Record Staff Comment 5. Define the term “fault.” a. Adopt Hearings Officer’s definition. b. Adopt other definition. The Hearings Officer defined “fault” to mean “reasons for which the applicant was not responsible, including but not limited to, delay by a state or federal agency in issuing a required permit.” Neither party offered an alternative definition. Sample motion for BOCC: “Move that the BOCC adopt the Hearings Officer’s definition of ‘fault.’” 6. Review Hearings Officer’s findings as to conditions 1,14E, 23, 32 and 38. a. Adopt Hearings Officer’s findings, with or without modification. b. Adopt other findings. The Hearings Officer found that the applicant fully complied with conditions 1, 14E, 23 and 32, and substantially exercised condition 38. The parties did not challenge those findings, except with respect to condition 38. In summary, the Hearings Officer found that the applicant did not fully comply with condition 38 because it did not obtain final FMP approval during the initiation period; it substantially exercised the condition by submitting the required wildlife mitigation plan and defending its adequacy on appeal (HO decision; p. 43). The opponent challenges this finding because the wildlife mitigation plan was ultimately rejected by LUBA and the Court of Appeals (Opponent’s June 18 submittal; p.6). Sample motion for BOCC: “Move that the BOCC adopt the Hearings Officer’s findings as to conditions 1, 14E, 23, 32[and 38].” 4 Issue Board Options Information in Record Staff Comment 7. The Applicant requests that the Board overturn the existing Hearings Officer’s decision and replace it with her original decision, arguing that it is the better interpretation of the code, as it pertains to the destination resort approval process. The Opponent objects, asserting that the LUBA and Court of Appeals decisions effectively circumscribe the issues on remand and the scope of the Board’s review. The issue before the Board is to determine the effect of the LUBA and Court of Appeals decisions on the Board’s scope of review/admissible evidence. LUBA’s decision, affirmed by the Court of Appeals, was that, for any conditions that have not been fully complied with during the two-year approval period, the County can conclude that the CMP approval was initiated only if it finds, based on substantial evidence, that for such conditions, the “failure to comply with the conditions is not the fault of the applicant.” a. Follow reasoning presented by Opponent (Opponent’s submittal dated June 11, 2014). Some issues have already been decided by LUBA: Whether it is appropriate to consider compliance with all 38 conditions of approval or just those that it contends do not involve subsequent land use approvals like the FMP and final plats. Whether the provision “any failure to fully comply with the conditions must not be the fault of the applicant” applies to all of the conditions of approval or only those that the Hearings Officer in her first decision found relevant. Some issues are barred because they were not raised in the prior case: Applicant’s argument that “exercise” does not mean “compliance” was not raised before the Hearings Officer, or in subsequent appeals to LUBA or Court of Appeals. The Board’s ability to interpret its code is limited by LUBA and Court of Appeals decisions, and ORS 197.829 does not apply to the Court of Appeals. Interpretation of code also limited here because LUBA determined that the operative language to be applied is that which is found in the conditions of approval for the CMP. b. Follow reasoning presented by Applicant (Applicant’s submittal dated June 18, 2014). The Board is the final arbiter of what its own code means: ORS 197.829(1) provides that LUBA shall affirm a local government’s interpretation of its own land use regulations, with some exceptions. The Board has not determined what DCC The Hearings Officer found that the scope of the decision on remand is limited by LUBA’s decision to considering whether Thornburgh Destination Resort was initiated under Section 22.36.020(A)(3). Opponent objects to information presented by the Applicant in its presentation to the Board on June 4 on the grounds that the issues have either been resolved by LUBA and the Court of Appeals or were not raised below and, thus, not remanded. Opponent cites Beck v. City of Tillamook and Hatley v. Umatilla County (Opponent’s submittal dated June 11, 2014; pages 3-8). Objections include: Whether it is appropriate to consider compliance with all 38 conditions of approval or just those that do not involve subsequent land use approvals Whether the provision “failure to fully comply with the conditions must not be the fault of the applicant” applies to all of the conditions of approval or only those that the Hearings Officer in her first decision found relevant Applicant’s argument that “exercise” does not mean “compliance” Applicant’s argument for an exception to the Beck rule prohibiting raising new issues Applicant rebuts Opponents’ arguments in its June 18 submittal, citing Gage v. City of Portland, Siporen v. City of Medford and Canfield v. Umatilla County (Applicant’s submittal dated June 18, 2014; pages 1-4). Arguments include: The Board is the final arbiter of its own code (ORS 197.829(1) LUBA gives deference to the Board’s interpretation of it code as long as that interpretation is plausible The Court of Appeals shall affirm LUBA unless it found the order to be unlawful in substance or procedure (ORS 197.850(9)(a)) Applicant objects to Opponent’s testimony regarding comments made by former County Commissioners on the original CMP decision on the basis of impermissible attempt to re- litigate that approval. Those comments were critical of the application materials and questioned the completeness of the application. Applicant cites to Lord v. City of Oregon City (Applicant’s submittal dated June 18, 2014; p.7). 5 Issue Board Options Information in Record Staff Comment 22.36.020(A)(3) means. The Court of Appeals was required to affirm LUBA unless it found the order to be unlawful in substance or procedure (ORS 197.850(9)(a)). The Board is free to interpret DCC 22.36.020(A)(3) as long as its interpretation is plausible. c. Other. 8. Determine, as to each remaining condition of approval, whether it has been: Exercised Substantially Exercised If not exercised or substantially exercised, whether the Applicant is at fault. In LUBA No. 2012-042, LUBA gave the following relevant instructions: County must consider whether all of the 38 conditions of approval have been ‘substantially exercised.’ For those conditions that have not been substantially exercised, failure to do so is not the fault of the applicant. With respect to conditions of approval that provide ‘contingent or continuing obligations’, the County may find that any failure on the Applicant’s part to comply with such conditions is not the fault of the Applicant because the contingency that would trigger obligations under the condition does not and may never exist or the Applicant’s failure to obtain additional prerequisite land use approvals is not the Applicant’s fault. The Hearings Officer found that most of the CMP conditions of approval under consideration impose contingent obligations on the Applicant that did not occur before the CMP approval became void, and the Applicant’s failure to fully comply with contingent obligations was the Applicant’s fault. She found that she lacked authority to consider whether the Applicant substantially exercised most of the conditions with which the Applicant failed to fully comply because noncompliance was the Applicant’s fault (HO decision; pages 27-31). The Applicant asserts that all conditions of approval have been fully complied with but if the Board finds otherwise then any failure to fully comply with these contingent conditions of approval was not the Applicant’s fault because: Delay in the BLM approval of the wildlife mitigation plan. TRC’s bankruptcy proceedings and other economic considerations. Opponent’s appeals. Futility of initiating FMP remand. (Applicant’s Power Point presentation, June 4, 2014) The Opponent asserts that 22 conditions of approval have not been substantially exercised or fully complied with and failure to fully comply with these contingent conditions of approval was the Applicant’s fault because: Mitigation measures on BLM land could have been resolved prior to submitting the CMP and/or resolved between February 2011 and December 2012 (Opponent’s submittal dated June 11, 2014; pages 9-10). The financial difficulties experienced by TRC predate the bankruptcy proceedings and the effects of the recession. Opponent’s appeals tolled the expiration date of the approval and Opponent cannot be blamed for Applicant’s delay in initiating the FMP remand. Applicant had one year and nine months to initiate FMP remand and failure to do so Refer to attachment showing all 38 conditions of approval, color coded pursuant to Hearings Officer’s decision. 6 Issue Board Options Information in Record Staff Comment was the Applicant’s fault. 9. Determine whether the conditions of approval, when viewed as a whole, have been substantially exercised. a. The conditions of approval, when viewed as a whole, have been substantially exercised. b. The conditions of approval, when viewed as a whole, have not been substantially exercised. The Hearings Officer found that 22 conditions and portions thereof were not fully complied with and that such failure was the Applicant’s fault. The Hearings Officer found that the appropriate analysis under the “viewed as a whole” approach requires the County to determine whether the destination resort approval conditions as a whole have been exercised to a significant degree, and that determination necessarily requires an evaluation of the significance of conditions relative to the overall development. The Hearings Officer found that 7 of the 15 conditions of approval that were fully complied with (Conditions 9, 13, 14A, 14B, 22, 36 and 37) require only notations on the FMP, revisions to and filing of CC&Rs, modification of a density chart and coordination with the Sheriff. In contrast, she found the other 8 conditions (3, 8, 10, 11, 15, 19, 24 and 30) are relatively more significant because they require more substantive action to develop the resort (obtaining right-of-way, water rights, state permits and approvals, well agreements, fire district annexation, submitting and obtaining county approval of detailed and complex plans for traffic circulation and fire protection). Ultimately, the Hearings Officer found that she cannot conclude the CMP conditions of approval have been substantially exercised because only 8 of these 15 conditions fully complied with required significant action by the applicant relative to the overall destination resort development. The Hearings Officer also found that 4 additional conditions of approval had been fully complied with (Conditions 1, 14E, 23 and 32). The Hearings Officer found these conditions did not require significant action by the Applicant. Two require new land use approvals if the approved CMP or open space are changed. The other two simply put the Applicant on notice of what was not approved by the CMP. The Hearings Officer found the remaining 22 conditions of approval and portions thereof with which the Applicant either failed to fully comply or did not substantially exercise required the majority of significant actions necessary to develop the resort- i.e., securing subdivision plat and site plan approvals and constructing the resort elements and amenities (HO decision; pages 44-47). The Applicant argues: Only those conditions that could be exercised before FMP approval or concurrently with an FMP are relevant. Here, every one of those conditions has been fully exercised. If full exercise exists, then substantial exercise also necessarily exists. Forty of the 41conditions have been fully exercised or are fully complied with, and condition 41 has been substantially exercised. There is no condition for which substantial exercise was permissible, but has not yet occurred. When the applicant has either fully or substantially exercised every condition possible, and is in full compliance with the rest, substantial exercise of the conditions as a whole must exist. The Board can give more or less weight to any particular condition; the Board needs to make this determination by considering all approval conditions relative to each other and their importance to the project. Sample motion for BOCC: “Move that the BOCC find that when viewed as a whole the approval conditions in the CMP have/have not been substantially exercised.” 7 Issue Board Options Information in Record Staff Comment Substantial exercise exists if every condition that could have been exercised by this point in the process has been exercised. This is 20 of 41 conditions, almost 50%. The Hearings Officer erred in giving greater weight to some conditions over others. Finally, any failure to fully comply with those 22 remaining conditions of approval is not the Applicant’s fault, as described under Issue #7, above. (See Applicant’s final argument dated June 25, 2014) Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of July 7, 2014 Please see directions for completing this document on the next page. DATE: June 23, 2014 FROM: Paul Blikstad Department CDD Phone # 6554 TITLE OF AGENDA ITEM: Consideration of Board Approval and Signature of Document No. 2014-376, Findings and Decision 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-lO). (Newland Property) PUBLIC HEARING ON THIS DATE? No 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 Board conducted deliberations on the applications on April 28, 2014, and determined that the applications would be denied, and directed staff to write a decision for their review. Staff has now drafted a decision for the Board's consideration. FISCAL IMPLICATIONS: None RECOMMENDATION & ACTION REQUESTED: If the decision captures the Board's oral decision, Staff recommends that the decision be approved and signed. ATTENDANCE: Paul Blikstad, Laurie Craghead DISTRIBUTION OF DOCUMENTS: Planning Division staff will distribute the Board's written decision on these applications. PA-13-1/ZC-13-1) Page 1 For Recording Stamp Only DECISION OF THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY FILE NUMBERS: PA-13-1, ZC-13-1 APPLICANT/ NNP IV-NCR, LLC PROPERTY OWNER: 2660 NE Highway 20, Suite 610-369 Bend, OR 97701 REQUEST: Approval of a Plan Amendment from Agriculture to Rural Residential Exception Area, and a Zone Change from Exclusive Farm Use (EFU-TRB) to Multiple Use Agricultural (MUA-10) for 171 acres. PROPERTY: County Assessor’s Map 17-12-24, tax lots 206, 300, 301, 302, 304, 305, 401, 405 and 406 STAFF CONTACT: Paul Blikstad, Senior Planner HEARING DATES: February 5, 2014 and March 12, 2014 I. SUMMARY OF DECISION: In this decision, the Board of County Commissioners (“Board”) is asked to decide on applications for a plan amendment from agriculture to rural residential exception area, and a zone change from Exclusive Farm Use (EFU-TRB) to Multiple Use Agricultural (MUA-10). These applications come to the Board based on the Deschutes County Code requirement under DCC 22.28.030, Decision on Plan Amendment and Zone Changes, subsection C, which states: “C. Plan amendments and zone changes requiring an exception to the goals or concerning lands designated for forest or agricultural use shall be heard de novo before the Board of County Commissioners without the necessity of filing an appeal, regardless of the determination of the Hearings Officer or Planning Commission. Such hearing before the Board shall otherwise be subject to the same procedures as an appeal to the Board under DCC Title 22.” These applications went before the County Hearings Officer, who issued a decision recommending denial of the applications. Because the subject property is designated for agricultural use, the Board, under DCC 22.28.030(C), is the decision making body for these applications. REVIEWED ______________ LEGAL COUNSEL PA-13-1/ZC-13-1) Page 2 The Board finds that the primary consideration for what constitutes agricultural lands in the county is irrigation water. The subject property, with 103 acres of water rights associated with it, constitutes a significant factor in determining whether the subject property falls under the definition of agricultural land. The subject property has over one half of the property with designated irrigation water rights (60%), and despite the soils analysis, is capable of some types of farm use that would be capable of making a profit even if that profit is not very much. The Board notes that the comprehensive plan, Section 2.2, Agricultural Lands, has the following statement: In 1992 a commercial farm study was completed as part of the State required periodic review process. The study concluded that irrigation is the controlling variable for defining farm lands in Deschutes County. Soil classifications improve when water is available. (Page 5, Section 2.2, Agricultural Lands) II. APPLICABLE CRITERIA: The Board adopts the Hearings Officer’s findings in Section I of her decision, Applicable Standards and Criteria, and incorporates them herein as its own findings. III. FINDINGS OF FACT: The Board adopts as its findings of fact, the findings that were made by the Hearings Officer, in Sections II (A) through (K) except as modified below. G. PROCEDURAL HISTORY: The procedural history submitted by the Hearings Officer is amended to add the following: The Hearings Officer’s decision was mailed out on October 24, 2013. According to DCC 22.28.030(C), the applications require a de novo hearing in front of the Board of County Commissioners, without the necessity of an appeal. The Board held a work session with staff on these applications on January 22, 2014. Two hearings were held on the applications: February 5, 2014 and March 12, 2014. Notice of the hearing was sent for the February 5th hearing dated. Because the hearing before the Board was continued on the record to March 12th, no additional public notice was required. The Board deliberations for the decision on these applications was conducted on April 28, 2014. The Board voted to uphold the Hearings Officer’s denial of PA-13-1/ZC-13-1. The Board directed Staff to prepare a written decision taking into account the Board’s statements at the deliberations for their decision. PA-13-1/ZC-13-1) Page 3 IV. FINDINGS OF FACT AND CONCLUSION OF LAW SPECIFIC LEGAL ISSUES As an initial finding, the Board finds that the appropriate unit of land for reviewing the proposed applications is a “tract.” In this instance, the tract consists of nine (09 tax lots and eight (8) legal lots of record, as outlined in the Planning Division staff report. The Board makes this finding as all of the tax lots are owned by the applicant, and the property in the past was once part of a larger farm unit. The Board concurs with the Hearings Officer’s findings regarding conformance with Chapter 18.136 of Title 18 of the Deschutes County, Amendments, with the exception of “B” which is addressed below. The Board incorporates the findings listed on pages 8-16 of the Hearings Officer’s decision, and incorporates them herein by reference, with a few exceptions. The Hearings Officer found that Comprehensive Plan Policy 2.5.24 was not clear as to which “water impacts” are to be reviewed and addressed. The Board finds that the policy encompasses all the impacts reviewed and addressed by the Hearing Officer. Furthermore, the discussion under Section 3.3 on page 12 is not actually a policy but a discussion of the existing situation in Deschutes County. Additionally, the findings for DCC 18.136.120(B), beginning on page 13, regarding the purpose of the MUA-10 zone per DCC 18.32.010, are inconsistent with the Board’s findings below as to why the subject property should remain zoned EFU. Although the property might also be suited for hobby farming as the applicant claims, because the Board finds that the land remains suited for commercial farming, the Board finds that the application does not comply with DCC 18.136.120(B). Furthermore, as stated below, the Board finds that the property should be reviewed as a tract as opposed to reviewing each lot for purposes of the soils analysis. Therefore, the Board finds that the Hearings Officer’s last sentence in the second to last paragraph on page 16 under the discussion of DCC 18.136.120(D) is not a basis for finding the “Change in Circumstances” criteria is not applicable to this application. Instead, the Board finds that none of change of circumstances listed by the applicant impact the subject property enough to overcome the ability to use the subject property for commercial farming. The Board also concurs with the Hearings Officer’s findings regarding conformance with the Statewide Planning Goals, as listed on pages 16-20 of the Hearings Officer’s decision, and incorporates them herein by reference with a few exceptions. In the discussion of Goal 3, Agricultural Lands on page 17, the Hearings officer restated her finding that the applicant failed to demonstrate that the soil study was adequate. That was based on her finding that the soil classification for each legal lot must be separately analyzed. Because the Board finds, however, that the appropriate unit is the tract, the Board does not adopt that statement. The Board agrees, however, that the discussion below regarding the profitability and other factors in the administrative rules are the basis for finding that this application does not comply with Goal 3. PA-13-1/ZC-13-1) Page 4 AGRICULTURAL LAND STANDARDS AND PROCEDURES 3. Division 33, Agricultural Land FINDINGS: The applicant is requesting approval of a plan amendment and zone change for the subject property on the basis that it does not constitute “agricultural land” requiring protection under Goal 3. The standards and procedures for identifying and inventorying agricultural land are found in OAR Chapter 660, Division 33. a. OAR 660-033-0010, Purpose The purpose of this division is to preserve and maintain agricultural lands as defined by Goal 3 for farm use, and to implement ORS 215.203 through 215.327 and 215.438 through 215.459 and 215.700 through 215.799. FINDINGS: Goal 3 defines “agricultural land” in relevant part as follows: Agricultural Land – * * * in eastern Oregon is land of 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, and other lands which are suitable for farm use taking into consideration soil fertility, suitability for grazing, climatic conditions, existing and future availability for farm irrigation purposes, existing land-use patterns, technological and energy inputs required, or accepted farming practices. Lands in other classes which are necessary to permit farm practices to be undertaken on adjacent or nearby lands, shall be included as agricultural land in any event. More detailed soil data to define agricultural land may be utilized by local governments if such data permits achievement of this goal. FINDINGS: Under this definition, which is mirrored in the Goal 3 administrative rules (OAR 660 -033- 0020), “agricultural land” consists of: Land that is predominantly Class I-VI soils (in Eastern Oregon) unless a goal exception is merited; Land that is predominantly Class VII and VIII soils and that is “suitable for farm use” considering the factors set forth in OAR 660-033-0020(1)(a)(B); Land that is necessary to permit farm practices on adjacent or nearby agricultural lands; and Class VII and VIII land that is adjacent to or intermingled with Class I-VI land within a farm unit. The Board finds that the subject property is predominantly (67%) class 7 soils, as determined in the soils analysis that is in the record. The Board finds that even though the record shows that the property has a majority of the property that is class 7 soils,, the Board finds that the property is suitable for farm use, based on the seven factors of OAR 660-033-0020 as follows: Soil fertility: The Board finds persuasive the joint response from the Oregon Department of Land Conservation and Development/Oregon Department of Agriculture and more than one witness at the hearing who had farms with similar soil, that soil fertility can be a limit to agriculture, but that applying PA-13-1/ZC-13-1) Page 5 lime and manure, as well as fertilizers to recover soil capacity and boost production are common practices in Central Oregon and elsewhere. And that there are types of farm uses that a re not strictly dependent on soil fertility, such as the boarding, breeding and training of horses, and confinement livestock or poultry operations. The joint response included aerial photos demonstrating that the subject property has historically been in farm use. The Board finds that fertilization is a common practice for virtually any type of farm use, and does not limit the subject property from being farmed, and would not prevent a reasonable farmer from going to the effort and expense of fertilizing the land to make it productive agricultural land. Suitability for grazing: The applicant submitted an initial agronomic study as part of the proceedings before the Hearings Officer, and a supplemental submittal at the proceedings before the Board. The Board finds that the supplemental submittal lists three types of cattle grazing operations, and a llama enterprise as listed on page 3 of the report. The study indicates that the property is suitable for grazing for at least 5 months of the year. The Board finds that while the study shows that these types of grazing operations produce a negative farm income, it does not make the property unsuitable for grazing. The Board finds that based on the record, the subject property has been utilized for farm use, some of which appears to have been grazing. The Board finds that, unlike the Department of State Lands property which had no water rights and no history, recent or past, of any farm use, the Newland property has historically been in farm use. And as indicated by the testimony of the Central Oregon Irrigation District representative Steve Johnson, the land has been irrigated for approximately 100 years. Additionally, the Board finds that different, more modern, farm management practice may also make the difference in the land being suitable for grazing and, therefore, does not find persuasive the evidence of past farming and grazing on the property. Climatic conditions: The Board finds that the climatic conditions in the county are fairly standard, with some minor variations from north to south, such as comparing the La Pine area with the Lower Bridge area. The Board concurs with the Hearings Officer’s finding on this factor where the decision states: “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 Board acknowledges that the growing reason in this area is comparatively short (as compared to the Willamette Valley). That, however, is insufficient to show that the climatic conditions prevent profitable farming in Central Oregon and, specifically, on the subject lots. Existing and future availability of water for farm irrigation purposes: The Board finds that the record is clear in that the property has 103 acres of irrigation water rights through the Central Oregon Irrigation District. The Board finds that having irrigation water rights is the most important factor in farm use throughout the county. Farm use in Central Oregon is primarily dependent upon having water to irrigate land for crops, hay fields, pasture, and any other water dependent farm use. The Board finds that the subject property is viable for farm use based on the availability of irrigation water for this property (60% of the 171 acres has water rights). Farm use special assessment goes hand in hand with water rights in determining whether land is agricultural. Existing land use patterns: The Board finds that the record shows the land use pattern in the area consists of some farming activities (pasture, grass hay, livestock grazing), including some hobby farms 1, as well as two churches, and rural residential uses, such as the Los Serrano s, Cleve’s Acres, Vista Del Sol and East Villa subdivisions (all zoned Multiple Use Agricultural). The Hearings Officer found and the Board concurs 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.” 1 PA-13-1/ZC-13-1) Page 6 Technological and energy inputs required: The applicant’s supplemental agronomic study indicates that the existing irrigation equipment on the site could be utilized, but would need to be “jury-rigged” to allow it to be useful, and that such a system has a higher cost than the estimated cost of purchasing an entirely new system, and may be more prone to failure and will incur higher operational costs. The supplemental study also states: “Based upon observation and assessment, in the professional judgment of Agronomic Analytics, the cropland present on the NNP property will require additional capital inputs (e.g. additions to the existing irrigation equipment, weed control, replanting, machinery, etc.) in order to be used for pasture or crop production in the most efficient manner as a single farm operation.” The Board finds that there will more than likely be technological and energy inputs required for a commercial farm use on the subject property. Included with that would be repair and upgrade to the irrigation system. Additionally, fencing would be included in that endeavor, specifically for uses such as livestock grazing, equine breeding, boarding or training, or other livestock use. Maintaining or upgrading fencing is a normal and traditional part of farming. These required inputs do not make the property non-agricultural land. The Board concurs with the Hearings Officer’s finding in that the technological and energy inputs required to put the property to profitable farm use are not excessive. Accepted farming practices: The applicant submitted the following comments in the soils analysis: “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.” The joint DLCD/DOA response to the applicant’s statement is: “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 operate with accepted farming practices common in the area.” The Board finds that based on the testimony and record, the subject property has had historical farming practices that were common to Central Oregon, such as hay production and livestock grazing. The Board finds that accepted farming practices have and can occur on the property. The management of the land for farming will determine whether it is profitable or not. Also, new or updated management practices could result in profit from farm use, where prior practices did not provide for that profit. A reasonable farmer would take into account the costs of accepted farming practices, including things such as machinery and fertilization. Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands: The Hearings Officer found the following for this criterion: “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 Board concurs with the Hearings Officer’s findings that the subject property is not necessary to permit farm practices on any adjacent or nearby EFU-zoned land. In reviewing all the factors, however, the Board is not persuaded that this factor alone is sufficient to declare the land non-agricultural land. PA-13-1/ZC-13-1) Page 7 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. The Hearings Officer found the following for this criterion: “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.” The Board concurs with the Hearings Officer’s finding that the agricultural and nonagricultural soils on the subject property are not intermingled within a farm unit. The Board further finds that, while profitable, commercial farming in Deschutes County can be accomplished and can be on the subject property in particular, farming may not necessarily garner a large profit margin. This is consistent with the following language from the comprehensive plan: Despite designating many agricultural areas by default, the 1979 Resource Element noted that based on agricultural determinants of soils, water, climate and economics, profitable farming in the County remained difficult. The findings for protecting non- profitable agricultural land noted the ascetic value of farm land, the costs and hazards of allowing local development and the economic importance of rural open space. (Page 5, Section 2.2, Agricultural Lands) Like the 1979 Resource Element, the 1992 farm study noted the challenges of local commercial farming. The high elevation (2700-3500 feet), short growing season (88- 100 days), low rainfall and distance to major markets hamper profitability. (Page 5 Section 2.2, Agricultural Lands) The above data highlights the fact that farming in Deschutes County is generally not commercially profitable. For a majority of farmers, farming is not a sustaining economic activity, but rather a lifestyle choice. Living on a farm and farming as a secondary economic activity acknowledge a shift from commercial farming towards the benefits of a rural lifestyle. (Page 7, Section 2.2, Agricultural Lands) Statewide Planning Goal 3 requires counties to preserve and maintain agricultural lands. However, in discussions on the future of agriculture in Deschutes County there are still differences of opinion over which lands should be designated farm lands and what uses should be allowed. Farm lands contribute to the County in a number of ways. Agriculture is part of the ongoing local economy. Wide-open farm lands offer a secondary benefit by providing scenic open spaces that help attract tourist dollars. Farm lands also contribute to the local character that is often mentioned as important to residents. Finally, it should be noted that agricultural lands are preserved through State policy and land use law because it is difficult to predict what agricultural opportunities might arise, and once fragmented, the opportunity to farm may be lost. (Page 9, Section 2.2, Agricultural Lands). PA-13-1/ZC-13-1) Page 8 The Board notes that the applicant relies almost exclusively on whether the property can produce a profit in money by farming as the basis for the plan amendment/zone change. The Board finds that profitability is one factor in reviewing an application of this type, but not the only or most important factor. The other factors listed above also determine whether the subject property is agricultural land. The Board finds that the factors, taken as a whole, demonstrate that this property is agricultural land, and is not eligible for rezoning. The Board also notes that farming has become more of a rural lifestyle choice rather than a way to make a living. VII. DECISION: Based on the findings of fact and conclusions of law set out above, the Board concludes that the applicant has not demonstrated that all applicable approval criteria have been met. The Board denies the plan amendment and zone change applications. DATED this ____ day of June, 2014. MAILED this ____ day of June, 2014. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ______________________________________ TAMMY BANEY, CHAIR ______________________________________ ANTHONY DEBONE, VICE CHAIR ATTEST: ______________________________________ Recording Secretary ______________________________________ ALAN UNGER, COMMISSIONER THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL.