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HomeMy WebLinkAboutNewland DecisionDeschutes 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.