HomeMy WebLinkAboutDSL Request - Zone ChangeDeschutes 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 September 24, 2012
Please see directions for completing this document on the next page.
DATE: August 30, 2012
FROM: Paul Blikstad Department CDD Phone # 6554
TITLE OF AGENDA ITEM:
Public Hearing on applications for a Plan Amendment and Zone Change to change the comprehensive
plan designation on 380 acres from Agricultural to Rural Residential Exception Area and rezone the
land from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-IO). File Nos. PA-II-7, ZC
11-2).
PUBLIC HEARING ON THIS DATE? Yes
BACKGROUND AND POLICY IMPLICATIONS:
The Oregon Department of State Lands applied for a plan amendment and zone change on the subject
property. The applications went before the County Hearings Officer who has recommended approval
of the proposed changes. The Deschutes County Code requires a de novo hearing in front of the Board
for lands designated agricultural on the comprehensive plan and zoned EFU.
The proposed changes could set somewhat of precedence for other lands that are zoned EFU and would
not be considered agricultural lands (all dry land with poor soils).
FISCAL IMPLICATIONS:
None for the County.
RECOMMENDATION & ACTION REOUESTED:
The Board will need to decide whether to accept the Hearings Officer's recommendation for approval of
the Plan Amendment and Zone Change.
The Planning Division recommends that the Board approve the plan amendment/zone change request.
ATTENDANCE: Paul Blikstad, Laurie Craghead
DISTRIBUTION OF DOCUMENTS:
Planning Division staff' will send notice to all parties of the Board's decision on PA-1 1-7/ZC-1 1-2.
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/
NOTICE OF PUBLIC HEARING
The Deschutes County Board of Commissioners will hold a Public Hearing on Monday,
September 24,2012 at 10:00 P.M. in the Barnes and Sawyer Rooms of the Deschutes County
Services Building located at 1300 NW Wall Street in Bend, to consider the following request:
FILE NUMBERS: PA-11-7/ZC-11-2
SUBJECT: Applications for a Plan Amendment to change the comprehensive
plan designation of certain property from Agriculture to Rural
Residential Exception Area, and a Zone Change from Exclusive
Farm Use to Multiple Use Agriculture (MUA-10). A total of 380 acres
is proposed to be rezoned. This is a de novo hearing as required
under DCC 22.28.030.
APPLICANT: Oregon Department of State Lands
LOCATION: County Assessor's Map 18-12, tax lots 1700 and 1800
ALL INTERESTED PERSONS MAY APPEAR, BE HEARD, BE REPRESENTED BY
COUNSEL, OR SEND WRITTEN SIGNED TESTIMONY. ALL WRITTEN REPLIES MUST BE
RECEIVED BY THIS DEPARTMENT PRIOR TO THE HEARING DATE OR SUBMITTED AT
THE HEARING. ANY PARTY TO THE APPLICATION IS ENTITLED TO A CONTINUANCE
OF THE INITIAL EVIDENTIARY HEARING OR TO HAVE THE RECORD LEFT OPEN IN
ACCORDANCE WITH SECTION 22.24.140 OF THE DESCHUTES COUNTY CODE.
Recipients of this notice may request a copy of the Hearings Officer's decision (25 cents a
page). Any person submitting written comment or who presents testimony at the hearing will
receive a copy of the decision.
Failure to raise an issue in person at the hearing or in writing precludes appeal by that person to
the Land Use Board of Appeals (LUBA). Failure to provide statements of evidence sufficient to
afford the decision-maker an opportunity to respond to the issue precludes appeal to LUBA
based on that issue.
Copies of the application, all documents and evidence submitted by or on behalf of the applicant
and applicable criteria are available for inspection at the Planning Division at no cost, and can
be purchased for 25 cents a page.
Quality Services Performed 'With Pride
STANDARDS AND APPLICABLE CRITERIA:
Title 18 of the Deschutes County Code, the County Zoning Ordinance
Chapter 18.16, Exclusive Farm Use Zone
Chapter 18.32, Multiple Use Agricultural Zone
Chapter 18.136, Amendments
Title 23 of the Deschutes County Code, Deschutes County Comprehensive Plan
Chapter 1, Comprehensive Planning
Chapter 2, Resource Management
Chapter 23.64, Transportation System Plan
Chapter 3, Rural Growth Management
Oregon Administrative Rules, Chapter 660
Division 12, Transportation Planning
OAR 660-012-0060, Plan and Land Use Regulation Amendments
Division 15, Statewide Planning Goals and Guidelines
NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215
REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST PROMPTLY BE FORWARDED
TO THE PURCHASER.
Please contact Paul Blikstad, Senior Planner, with the County Planning Division at (541) 388
6554 if you have any questions; Email address: paul.blikstad@deschutes.org
Dated this __day of August, 2012 Mailed this ___day of August, 2012
1 '" I ,
l! (
i
I
!
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
DATE: July 27,2012
TO: Board of County Commissioners
FROM: Paul Blikstad, Senior Planner
RE: Board review of the Plan Amendment/Zone Change applications submitted by
the Oregon Department of State Lands (File Nos. PA-11-7, ZC-11-2)
BACKGROUND:
The Oregon Department of State Lands (DSL) applied for a Plan Amendment and Zone Change
to amend the comprehensive plan and zoning on approximately 380 acres 1 • The plan
amendment is 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 went
before the Deschutes County Hearings Officer. The Hearings Officer recommended approval of
the requested changes in a decision mailed out on July 10, 2012.
Deschutes County Code (DCC) 22.28.030(C) states: "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."
The proposed plan amendment/zone change does involve land designated agriculture, and
consequently a de novo hearing before the Board is required. Staff has scheduled this de novo
hearing before the Board for Monday, September 24,2012.
ISSUES:
New Comprensive Plan applies: The Hearings Officer found that, based on the Court of
Appeals findings in Setniker v. Polk County, the comprehensive plan adopted by Deschutes
County after the DSL applications were submitted applies. The Hearings Officer also
determined that the proposed applications were consistent with the new comprehensive plan
policies and language. Additionally, the proposed changes were found to be consistent with the
purposes of the MUA-10 zone.
J The DSL land holding is approximately 640 acres (18-12, tax lots 1700 and 1800). They have requested that the
proposed changes be limited to 380 acres, located from the east boundary of the natural gas pipeline easement west
to 27th Street. Twelve (12) acres of the DSL land holding is already located within the Bend urban growth
boundary.
Quality Services Performed with Pride
Exception Area: As stated in the Hearings Officer's decision, if the land proposed for the plan
amendment/zone change is determined to not be agricultural land, no goal exception is required
for the change. The Hearings Officer found that the 380 acres was not agricultural land, based
on the fact that it was predominantly class 7 and 8 soils (class 1-6 soils are considered
agricultural land under state law). The proposed change did not require an exception to
Statewide Planning Goal 3, Agricultural Land. The Hearings Officer found that although the
County's comprehensive plan lists a "rural residential exception area" as one of seven possible
land designations, the proposed change does not constitute an exception area. The Hearings
Officer found, on page 12 of the decision, the following:
"As demonstrated by reference to the Pagel decision discussed above, there appears to
be instances in which rural residential zoning has been applied without the underlying
land necessarily being identified as exception area. This makes the title of the "Rural
Residential Exception Area" designation confusing, and in some cases inaccurate,
because no exception is associated with the underlying land in question. However, it is
understandable that since this designation is the only one that will allow rural residential
development, that is has become a catchall designation for land types that are
authorized for rural residential zoning. That is the case with the current proposal, and
again, for the same reasons set forth in Hearings Officer Green's decision in Pagel, I
cannot find a reason why the County would be prohibited from this practice."
The Hearings Officer's decision also found, that under Section 3.3 Rural Housing, the paragraph
in this section labeled "Rural Residential Exception Area," did not apply to the present
applications, as the subject 380 acres is not agricultural land.
10-acre minimum lot size: The Hearings Officer found that the 10-acre minimum lot size
under OAR 660-004-0040(7)(i)(a) does not apply to the proposed change, as it would not be
officially considered an exception area.
Soils Information: The Hearings Officer determined that the soils on the site (380 acres) did
not constitute agricultural land. Page 18 contains the following findings:
"Here, the record contains three sets of corroborating data which all appear to indicate
that at least 50 percent, and as much as 70 percent, of the subject property is composed
of Class VII and VIII soils. The primary data is the information submitted by the
applicant in its April 18, 2012 letter which contains the NRCS Soil Survey. The
supplemental data includes the Borine report, and calculations submitted by Staff which
were initially identified in a March 20, 2012 e-mail from Tim Berg to Paul Blikstad, and
then refined and submitted during the open record period as a table showing that the
subject property is composed of at least 51 percent Class VII and VIII soils. Taken
together, this information is sufficient to demonstrate that the subject property is not
predominantly agricultural land as defined in administrative rule. While the Borine report
is helpful in confirming the base soil survey data, the application is not solely dependent
on the report, and the Hearings Officer would consider it unreasonable to expect the
applicant to seek and obtain an additional DLCD review of the report when other reliable
data adequately serves the same purpose."
Recommendation and Schedule:
Staff recommends that the Board affirm the Hearings Officer's recommendation and approve
the plan amendment/zone change applications.
BOCCMemo Page 2
PA-11-7, ZC-11-2
Attached for your review is a copy of the decision on PA-11-7/ZC-11-2. All of the file/submitted
materials and comments are available for review, either in LAVA or if requested, I can get you
paper copies. There is a somewhat extensive record for this matter.
I have scheduled a work session with the Board for the Wednesday, August 22 nd , and a public
hearing before the Board on Monday, September 24, 2012. If you should have any questions,
feel free to contact me at your convenience.
BDCC Memo Page 3
PA-11-7, ZC-11-2
DECISION OF THE DESCHUTES COUNTY HEARINGS OFFICER
FILE NUMBERS: PA-II-7 and ZC-11-2
APPLICANT: State of Oregon
Department of State Lands
c/o Douglas Parker
775 Summer Street NE, Suite 100
Salem, OR 97301
REQUEST: The applicant requests approval of a Plan Amendment to change the
designation of certain property from Agriculture to Rural Residential
Exception Area, and a Zone Change from Exclusive Farm Use (EFU
TRB) to a Multiple Use Agricultural (MUA-l 0).
HEARING DATE: February 21, 2012 and March 20,2012
RECORD CLOSED: May 18,2012
STAFF CONTACT: Paul Blikstad, Senior Planner
I. APPLICABLE STANDARDS AND CRITERIA:
Title 18 of the Deschutes County Code, the County Zoning Ordinance
Chapter 18.16, Exclusive Farm Use Zone
Chapter 18.32, Multiple Use Agricultural Zone
Chapter 18.136, Amendments
Title 23 of the Deschutes County Code, Deschutes County Comprehensive Plan
Chapter 2, Resource Management
Chapter 23.64, Transportation System Plan
Oregon Administrative Rules, Chapter 660
Division 12, Transportation Planning
OAR 660-012-0060, Plan and Land Use Regulation Amendments
Division 15, Statewide Planning Goals and Guidelines
II. FINDINGS OF FACT:
A. LOCATION: The DSL holding contains two tax lots (18-12, 1700 and 1800). It
is located immediately adjacent to SE 2ih Street and Stevens Road, to the west
and north, respectively.
1
B. LOT OF RECORD: The Planning Division has previously determined under
application No. CU-97-132 that tax lots 1700 and 1800 together form one legal lot
of record.
C. ZONING AND PLAN DESIGNATION: The Deschutes County
Comprehensive Plan map designates the subject property as Agriculture. In
addition, the subject property is zoned Exclusive Farm Use
TumalolRedmondlBend subzone (EFU-TRB).
D. SITE DESCRIPTION: The DSL holding consists of approximately 640 acres,
and has a varied topography of level areas, interspersed with some rock outcrop.
The undisturbed portions of the site have a vegetative cover of juniper trees, and
an understory of scrub brush and grasses. A very small number of ponderosa pine
trees also exist on the property. Formal access to the site appears to exist only in
the immediate area of the natural gas pipeline adjacent to Stevens Road. The
property has several dirt trails widely scattered throughout the property. The
property is undeveloped, except for the underground Pacific Gas Transmission
pipeline running south to north through the property. The gas transmission line
area has been cleared of trees and the vegetation in the pipeline area is primarily
all scrub brush. The record indicates there are small cave sites on the property.
The approximately 12-acre portion of the property northwest of Stevens Road is
not included in the property, as this portion is already located within the Bend city
limits.
The NRCS identifies the soil mapping units on the subject property as 58C,
Gosney-Rock outcrop-Deskmap complex, 0 to 15 percent slopes; 38B, Deskamp
Gosney complex 0 to 8 percent slopes; 27 A, Clovkamp loamy sand, 0 to 3 percent
slopes; and 157C, Wanoga-Fremkle-Rock outcrop complex, 0 to 15 percent
slopes. The 58C, 38B, and 157C soils cover approximately 97% of the subject
property. The 58C, 38B, and 157C soil mapping units are nonhigh value soils.
The 27 A soil is considered high value when irrigated.
Because the subject property is in public ownership, there are no taxes paid on the
property. It is listed as "Non-Assessable" on the County Assessor's records. It
does not appear to have ever been farmed, nor does it contain any water rights.
The applicant states on page 2 of the burden of proof statement the following:
"The 12 acres located in the northwest corner of the SRT 1, north of Stevens Road,
are already annexed into Bend city limits and include a Central Oregon Irrigation
District (COlD) water conveyance canal."
This 12-acre portion of tax lot 1800 is not a part of the request, as it is already
located within the Bend city limits.
I The applicant lists "SRT" in many places in the burden of proof statement. SRT stands for Stevens Road
Tract, which is the applicant's reference for the subject property.
2
E. SURROUNDING LAND USES: Surrounding land uses include privately
owned properties developed with residential uses, including land within the Bend
urban growth boundary directly west and northwest of the property. There are
also rural residential properties located to the north and east. The surrounding
area includes a few parcels that Staff would consider as hobby fanns, with small
areas of irrigation, mainly in the form of pasture. Additionally, the surrounding
area includes the Deschutes County Knott Landfill site (18-12-14, 100/500/503),
County Road Department/County Surveyor complex and office (18-12-14, 100);
Humane Society (18-12-14, 104), as well as a Central Electric Cooperative
electric substation (18-12-14,502), and office facility (18-12-14, 102). Also in
the surrounding area is the High Desert Middle School (18-12-14, 101), a
veterinary clinic (18-12-15, 1901) and a dog kennel business (18-12-15, 200).
Zoning in the area includes Multiple Use Agricultural land directly east and north,
Exclusive Fann Use land to the northeast and southeast, Surface Mining to the
south (Knott Landfill and the Rose & Associates mining site), and Residential
zoning and Public Facility zoning within the Bend urban growth boundary to the
west, northwest and southwest.
F. PROPOSAL: The applicant is requesting approval of a plan amendment to
change the designation on approximately 380 acres of the overall holding
("subject property") from Agriculture to Rural Residential Exception Area, and a
zone change from Exclusive Fann Use (TumalolRedrnondlBend subzone) to the
Multiple Use Agricultural (MUA-l 0) zone. The applicant is not requesting a goal
exception to Statewide Planning Goal 3, Agricultural Land. The applicant is
instead relying on the premise that the portion of the subject property west of the
east boundary of the gas pipeline easement is predominantly not agricultural land,
based on a soils data from the NRCS Soil Survey and a report provided by Roger
Borine.
The applicant has submitted the following as part of the plan amendment/zone
change request:
• Burden of proof statement addressing the applicable criteria in County Code
and State law
• BLM Land Patent recorded at 2001-27360
• Soils investigation (report) prepared by Sage West, LLC
• Soils investigation (report) amendment to reduce the acreage to 380 acres
• Traffic study for subject property prepared by Kittelson & Associates, Inc.
• Stevens Road Tract Conceptual Master Plan
• Traffic study addendum submitted by Kittelson & Associates on behalf of the
applicant
3
----------------
G. PUBLICIPRIVATE AGENCY COMMENTS: The Planning Division mailed
notice to several agencies and Staff report states that the following comments
were received into the record:
Bureau of Land Management: In response to application number P A 117
1812000001700, request for a Plan Amendment from Agriculture to Rural
Residential Exception Area for 380 acres, in Township 18 South, Range 12 East,
Section 11, Willamette Meridian, Oregon, involving land along 27th Street, just
southeast of Bend, I have the following comments:
Although there is no BLM nearby, this is a parcel that BLM transferred out of
BLM ownership to DSL in 1997, after completing an environmental analysis (EA)
#DOI-BLM-P060-1195-0090, Section 11 State-in-lieu selection. The 1997
Decision Record says:
• Six caves found on Section 11 are significant under regulations pursuant to the
Federal Cave Resources Protection Act.
• The transfer of land ownership will be subject to valid existing rights and
mutually developed conditions.
• The State of Oregon does covenant and agree to the following: Cave
resources, as generally depicted on Exhibit A, shall be secured and conserved.
• No significant adverse or cumulative effects have been identified resulting
from the transfer of the property, as mitigated, to the State of Oregon.
Attachment A states:
As a condition to clear listing of the above lands, and by acceptance into their
ownership, the State of Oregon does covenant and agree to the following:
• Cave resources, as generally depicted on Exhibit A, shall be secured and
conserved in a manner consistent with a management plan designed to
maintain, and to the extent practical, the significant biological, geologic,
recreational and educational resource values present. Exhibit A depicts the
cave management zone. The cave management zone includes lands not more
than 350 feet from a cave passage and shall be the maximum area subject to
the cave management plan.
• The State of Oregon or its successor in interest shall be subject to the
conditions described in the management plan. Should lands with cave
resources pass to a successor in ownership to the State of Oregon, the State of
Oregon shall monitor the cave resources. Should the area subject to the
management plan revert to inactive cave use, the management plan will be
suspended.
Please see the attached map depicting the caves.
4
Deschutes County Transportation Planner: I have reviewed the submitted
materials for the Department of State Lands (DSL) holding on the east side of2ih
Street, which is also known as Section 11 (18-12-00, TL 1700). The land use is to
rezone a 380-acre portion from Exclusive Fann Use (EFU) to Multiple Use
Agricultural, 10-acre minimum (MUA-I0), east of2ih between Stevens and
Ferguson Roads.
Staff tentatively agrees with the traffic study's conclusions that no significant
affect would result from this land use, but needs further documentation from the
applicant regarding Table 3. Staff agrees with the 280 trips generated from the
proposed MUA-lO, it is the 100 daily trips generated from the existing EFU that
seems high. Staff believes the 100 trips from the existing EFU is high for four
reasons.
First, the applicant bases the 100 trips on three potential uses distributed across
two parcels. Second, a fann stand is a seasonal trip generator and that operational
aspect needs to be factored in. Third, a church generates the bulk of its trips on
the day of worship unless there is a school attached. Fourth, a rural fire station
also does not have consistent trip generation as the trips are tied to both Staffing
and number of calls to which the station responds. Table 3 could also include 10
trips a day from a home which is allowed under EFU.
Table 3 of the traffic study indicates the plan amendment/rezone could result in
28 single-family homes and 28 p.m. peak hour trips. Ultimately, the applicant
will be assessed transportation system development charges (SDC's) during the
building permit process. Currently, the SDC rate is $3,528 per p.m. peak hour
trip for an estimated SDC of $98,784 (28 trips x $3,528 per trip).
Planning Division Staff informed the County Transportation Planner that with a
cluster or planned development scenario, the density of development on the
subject property could essentially be doubled, based on the density bonus allowed
under DCC 18.32.040(A). With that information, the Transportation Planner
submitted the following additional comments:
"To answer the question definitively, the applicant's traffic analyst would have to
redo the TIA and re-examine all studied intersections. Without that, I have made
a first-magnitude estimate below of the effect of the density bonus.
The TIA showed the 28 units would generate 28 trips in the p.m. peak. This is an
increase of 18 trips more than the current EFU zoning would allow. Adding the
density bonus (site is within one mile of the Bend UOB) would increase the
number of potential units to 56. These 28 additional units would result in 28 more
trips for a total of 46 more p.m. peak hour trips than would occur under existing
zoning. Figure 4 of the TIA displays the performance of the studied intersections.
All have adequate capacity by varying margins. I doubt the addition of 28 more
peak hour trips will cause the intersections to fail."
5
The Transportation Planner responded to the addendum submitted by Kittelson
& Associates by stating:
HI have reviewed the Jan. 10, 2012 memo by Kittelson on the transportation
impacts ofthe Section 11 rezone proposed under ZC-11-7. This additional
analysis is to address the "density bonus" ofan MUA-10 site being located within
a mile ofthe UGB. I agree with the KAI report's methodology, conclusion, and
recommendation. "
County Road Department: No comments concerning the zone change. The
Road Department will have comments concerning access and road improvements
when development of parcels occurs.
Arnold Irrigation District: In response to the above request, Arnold Irrigation
District does not have any facilities or water rights at this location.
Bend Fire Department: The Fire Department submitted a I-page list of fire
code requirements, which would apply should the property be developed in the
future.
Pacific Power and Light: No comment response.
The following agencies did not respond toJhe request for comments: Central
Oregon Irrigation District, Bend Metro Parks and Recreation, Watermaster,
Cascade Natural Gas, Central Electric Cooperative, Qwest. Bend-La Pine School
District, Oregon Department of Transportation, City of Bend Engineering, P G &
E Transmission.
H. PROCEDURAL HISTORY: The subject property (tax lot 1800) was approved
for three previous land use applications as follows:
CU-97-132, A conditional use permit to establish a mainline valve and blowdown
assembly for an existing natural gas pipeline. This application was approved in
January of 1998, mailed out on January 26, 1998. The applicant was Pacific Gas
Transmission Company.
CU-04-21, A conditional use permit to establish a utility facility consisting of an
electric substation. The applicant was Central Electric Cooperative2 •
PS-09-4, Department of State Lands sign-off for a renewal of Central Electric
Cooperative's power line easement across State lands. The applicant was Central
Electric Cooperative.
2 This electric substation was never constructed. The subject property remains
undeveloped.
6
The initial hearing on the subject applications was originally scheduled for
Tuesday, January 16,2012. The applicant requested a continuance of that hearing
to February 21,2012, and that request was granted by the Hearings Officer. The
continued hearing was conducted on Tuesday, February 21, 2012. Evidence and
testimony were submitted at the hearing. The Hearings Officer again continued
the hearing to Tuesday, March 20,2012.
At the March 20, 2012 hearing, Attorney Liz Fancher representing Newland, an
entity with similarly zoned lands located elsewhere in the County requested that
the written record remain open until Apri120, 2012 to provide additional
testimony. The applicant requested an additional month thereafter to file a final
response. The Hearings Officer granted both requests. T
During the open record period the applicant submitted an April 18,2012 letter
with an attached letter from DLCD dated April 3, 2012. Newland submitted four
separate memoranda before the April 20, 2012 deadline expired. Those
documents are discussed in more detail below.
III. CONCLUSIONS OF LAW:
Chapter 18.136, Amendments
1. Section 18.136.010, Amendments
DCC Title 18 may be amended as set forth in DCC 18.136. The procedures
for text or legislative map changes shall be as set forth in DCC 22.12. A
request by a property owner for a quasi-judicial map amendment shall be
accomplished by filing an application on forms provided by the Planning
Department and shall be subject to applicable procedures of DCC Title 22.
FINDING: The applicant has requested a quasi-judicial plan amendment, and filed the
applications for a plan amendment and zone change. The Hearings Officer agrees with
Staff that the procedures ofDCC Title 22 apply.
2. Section 18.136.020, Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the public
interest is best served by rezoning the property. Factors to be demonstrated
by the applicant are:
A. That the change conforms with the Comprehensive Plan, and the
change is consistent with the plan's introductory statement and goals.
7
Applicable Law
At the February 21, 2012 public hearing, Newland raised the question of whether the
County's newly adopted Comprehensive Plan provisions regarding Agricultural Land
Policies (Section 2.2) and Rural Housing Policies (Section 2.3) should apply to the
application. Those policies were adopted by the Board of County Commissioners on
November 9,2011, after the consolidated application was filed on October 31,2011.
Ordinarily, a quasi-judicial land-use application which was found to be complete prior to
any amendments in the local development code would be reviewed under the code
provisions in place at the time the application was deemed complete. ORS 215.427.
Newland argued that this rule does not apply to intervening Comprehensive Plan
amendments. Newland cites a fairly recent Court of Appeals opinion Setniker v. Polk
County, 244 Or App 618 (2011) which found that such intervening Comprehensive Plan
amendments do apply to consolidated Comprehensive Plan map and zone change
applications.
As Staff noted in the supplemental Staff report, the County Counsel's Office reviewed
the case and tentatively agreed recommending;
My formal opinion for the record is that, while it may create a hardship for
applicants because it will be a moving target for Comprehensive Plan
, amendment applications filed prior to a statutory or rule change, whether
coupled with a zone change or not, there is nothing in the statute or rules
that were the subject of Setniker or in the case itself that limits the
applicability of Setniker to the TPR.
Although the applicant initially argued that following the Setniker rule could subject an
applicant to a potentially endless chain of Comprehensive Plan amendments, removing
certainty from the application process, the record appears to demonstrate that the
applicant eventually conceded to Newland's position.
Having reviewed the case, the Hearings Officer agrees with Staff and the County
Counsel's Office that the November 9,2011 amendments to the County Comprehensive
Plan apply to this application. Those policies are discussed in more detail below.
Chapter 2, Resource Management
Section 2.2, Agricultural Lands Policies
2.2.2 Exclusive Farm Use sub-zones shall remain as described in the 1992
Farm Study shown in the table below, unless adequate legal findings for
amending the sub-zones are adopted or an individual parcel is rezoned as
allowed by Policy 2.2.3.
8
2.2.3 Allow Comprehensive Plan and zoning map amendments for
individual EFU parcels as allowed by State Statute, Administrative Rules
and this Comprehensive Plan.
FINDING: As Staff correctly states, the applicant is proposing to rezone the subject
property from the EFU to the MUA-IO zone. The applicant has applied for a plan
amendment to support this zone change which would identifY the approximately 380
acres as Rural Residential Exception Area rather than Agricultural land. Rather than
pursuing an exception to Goal 3, which would ordinarily be the method of effectuating
such a change, the applicant is attempted to demonstrate that the subject property does
not meet the state definition of "agricultural land." Staffis correct that the Land Use
Board of Appeals allowed this approach in Wetherell v. Douglas County, _Or LUBA_,
(LUBA No. 2006-122, October 9,2006). The Hearings Officer also accepted this
method in PA-l 0-5 (Rose & Associates). The facts pertinent to the subject property are
sufficiently similar to those in PA-l 0-5 to allow the applicant to attempt to show that the
subject property is not agricultural land, rather than seeking an exception to Goal 3 under
state law.
2.2.4 Develop comprehensive policy criteria and code to provide clarity on
when and how EFU parcels can be converted to other designations.
FINDING: Newland has raised questions about whether the County must adopt a
nonagricultural land designation in the Comprehensive Plan, and perhaps an.associated
zone under the development code before the application can be approved. Those
concerns appeared to be most closely associated with this policy. Staff appears to be
unsure whether this policy mandates the creation of such designations prior to acting
upon the applicant's request for a Comprehensive Plan amendment. Staff also notes that
DLCD has encouraged the County to create such a Comprehensive Plan designation
because in its opinion such a designation would enhance the planning process in the
County for lands which are demonstrated to be non-resource lands.
Of course, the record shows that no such Comprehensive Plan designation or zone exists
currently. The recently adopted policy acknowledges this fact and provides a general
directive that requires the County to at least consider such a Comprehensive Plan
designation at some point in the future. The policy sets no deadline for doing so. The
policy also does not dictate any consequences for failing to do so. More specifically,
from a statutory construction perspective, the policy does not state that quasi-judicial
Comprehensive Plan amendment applications cannot be processed and approved until
such a non-resource designation is established. To read this requirement into the policy
would violate the most basic rule of construction which is to not add words or phrases
which have been omitted from the text. ORS 174.010.
This being the case, the Hearings Officer finds that the current application presents
essentially the same facts as were present in PA-07-1 (Pagel) in which Hearings Officer
Karen Green found that a proposal to amend land from "Agriculture" to "Rural
Residential Exception Area" could be allowed regardless of the fact that the applicant
9
was not seeking a Goal 3 exception, and that no non-resource Comprehensive Plan
designation existed to accommodate land that was determined to be nonagricultural.
I find that the current circumstances with regard to the requirements of the
Comprehensive Plan are essentially the same as when Hearings Officer Green reached
her decision in 2007. Although the above policy indicates the desired direction for the
County, that work has not yet been accomplished, and there is no indication that the
BOCC intended to impose a moratorium on the type of quasi-judicial Comprehensive
Plan amendment applications such as the one currently proposed.
Section 2.5 Water Resource Policies
2.5.24 Ensure water impacts are reviewed and, if necessary, addressed for
significant land uses or developments.
FINDING: Staff found, and the Hearings Officer agrees, that any proposed water use for
the development of the subject property would be reviewed under any necessary land use
process for the site (i.e. conditional use, tentative plat).
Section 3.3 Rural Housing
Rural Residential Exception Areas
"In Deschutes County most rural lands are designatedfor farms, forests or
other resources and protected as described in the Resource Management
chapter ofthis Plan. The majority ofthe land not recognized as resource lands
or Unincorporated Community is designated Rural Residential Exception Area.
The County had to follow a process under Statewide Goal 2 to explain why
these lands did not warrant farm or forest zoning. The major determinant was
that many ofthese lands were platted for residential use before Statewide
Planning was adopted.
'In 1979 the County assessed that there were over 17,000 undeveloped Rural
Residential Exception Area parcels, enough to meet anticipated demand for
new rural housing. As of 2010 any new Rural Residential Exception Areas
need to be justified through taking exceptions to farm, forest, public facilities
and services and urbanization regulations, and follow guidelines set out in the
OAR."
FINDING: Staff is concerned that while the above language is not a policy, it may
indicate that new rural residential exception areas could require an exception to the
applicable Statewide Planning Goal. Newland also raises questions about the
applicability of this section in both its February 21, 2012 submission and their submission
received on April 20, 2012. Newland essentially argues that the language quoted above
stating that "any new rural residential exception areas need to be justified through taking
10
exceptions" is a clear directive that the applicant in this instance must seek an exception
in order to gain approval of the Comprehensive Plan amendment and zone change.
As noted in the record, the above quoted language is not a policy itself, but rather an
explanation of how the County desires to handle future conversion of, in this case
agricultural land, to a designation and zoning which allows rural residential development.
Despite the fact that the quoted language does not represent policy, I agree with Newland
that it represents a confusing directive in the context of the present application. However,
for the reasons discussed below I do not find that the quoted language presents a bar to
the proposed Comprehensive Plan amendment and zone change.
Section 3.3 of the 2011 Comprehensive Plan provides some historical context for how the
County initially identified areas suitable for rural residential development. Similar to
many other counties at the time prior to initial acknowledgment, local jurisdictions were
allowed to identifY lands which would otherwise qualify as an agricultural lands by soil
type but which were already developed at rural residential densities. These areas could
be identified as exception areas even though a formal exception under ORS 197.732 had
not been undertaken. Regardless of their value as farmland, for example, these areas
were allowed to remain in rural residential use because they were already developed or
committed in some way to nonagricultural use.
The subject property in this application was not initially identified in 1979 as qualifying
as a de facto exception area prior to initial acknowledgment of the County's,-
Comprehensive Plan. However, as explained above, the applicant is seeking to
demonstrate that the land does not meet the definition of agricultural land, and therefore
should never have been designated as agricultural land under the Comprehensive Plan or
zoned for exclusive farm use. For reasons discussed more fully below, the Hearings
Officer believes that the applicant is successful in doing so.
To the extent that the quoted language above represents a policy, it appears to be directed
at a fundamentally different situation than the one presented in this application. The
quoted language addresses conversions of "farm" or "forest" land to rural residential use.
In those cases, the language indicates that some type of exception under state statute and
DLCD rules will be required in order to support a change in Comprehensive Plan
designation. See ORS 197.732 and OAR 660, Division 004. That is not what this
application seeks to do. The findings below explain that the applicant has been
successful in demonstrating that the subject property is composed predominantly of
nonagricultural soil types. Therefore, it is permissible to conclude that the property is not
"farmland" as defined under state statute, DLCD rules, and that it is not correctly zoned
for exclusive farm use. As such, the application does not seek to convert "agricultural
land" to rural residential use. If the land is demonstrated to not be composed of
agricultural soils, then there is no "exception" to be taken. There is no reason that the
applicant should be made to demonstrate a reasons, developed or committed exception
under state law because the subject property is not composed of the type of preferred land
which the exceptions process was designed to protect. For all these reasons, the Hearings
Officer concludes that the applicant is not required to obtain an exception to Goal 3.
11
There is one additional related matter which warrants discussion in connection with this
issue. It appears that part of Staffs hesitation and caution on the issue of whether an
exception might be required is rooted in the title of the Comprehensive Plan designation
that would ultimately apply to the subject property -which is "Rural Residential
Exception Area." There appears to be seven countywide Comprehensive Plan
designations as identified in the plan itself. These include"Agriculture, Airport
Development, Destination Resort Combining Zone, Forest, Open Space and Conservation,
Rural Residential Exception Area, and Surface Mining." Of the seven designations, only
Rural Residential Exception Area provides for associated zoning that will allow rural
residential development. As demonstrated by reference to the Pagel decision discussed
above, there appears to be instances in which rural residential zoning has been applied
without the underlying land necessarily being identified as an exception area. This makes
the title of the "Rural Residential Exception Area" designation confusing, and in some
cases inaccurate, because no exception is associated with the underlying land in question.
However, it is understandable that since this designation is the only one that will allow
rural residential development, that it has become a catchall designation for land types that
are authorized for rural residential zoning. That is the case with the current proposal, and
again, for the same reasons set forth in Hearings Officer Green's decision in Pagel, I
cannot find a reason why the County would be prohibited from this practice.
Chapter 23.60, Transportation
Section,,23.60.010, Transportation
* * * The purpose of DCC 23.60 is to develop a transportation system
that meets the needs of Deschutes County residents while also
considering regional and state needs at the same time. This plan
addresses a balanced transportation system that includes automobile,
bicycle, rail, transit, air, pedestrian and pipelines. It reflects existing
land use plans, policies and regulations that affect the transportation
system.
FINDING: Staff correctly notes that the transportation section of the Comprehensive
Plan has not yet been amended. The current transportation section is applicable.
Access to the subject property is proposed to be from either SE 27 th Street or Stevens
Road, or possibly from both roads. Staff found that if the property were to be rezoned
and if a development proposal is made, there could be road improvements that may be
necessary to accommodate the development. SE 2th Street is an arterial street and
Stevens Road is a collector street. Staff concluded that these two roads would have the
capacity necessary to accommodate the number of new dwellings that could occur in the
MUA-IO zone.
Prior to the February 16, 2012 public hearing, questions were raised about the potential
impact to the transportation system if the density bonus allowed for planned or cluster
12
developments were allowed in the future when a development plan is submitted for the
subject property. A January 10,2012 memorandum from Kittelson and Associates
addresses this issue and finds that even with the potential for increased rural housing
densities that there will be no "unmitigated significant effect on the transportation
system." The record shows that Senior Transportation Planner, Peter Russell, reviewed
the Kittelson memo and essentially concurred. This provision can be met.
• Ten acre minimum lot size/or new rural residential areas.
FINDING: On related topic, Newland questions whether the proposed MUA-l 0 zoning
would be consistent with the requirements of OAR 660-004-0040(7)(i)(A) which states
that for rural residential areas designated after October 4, 2000, "any new lot or parcel
have an area of at least ten acres."
Staff responded that the proposed MUA-I0 zoning designation for the subject property
will have a 10-acre minimum lot size, and concluded that OAR 660-004-0040(7)(i) does
not prevent the possibility of a density bonus for planned or cluster developments. Staff
found that the 10-acre minimum lot size would apply outside of any request for a planned
or cluster development.
Newland argues that Staffs approach will not satisfy OAR 660-004-0040(7)(i)(A)
because the MUA-l 0 zone allows for lots as small as 2 acres for such planned and cluster
developments. Newland argues that for this reason the MUA-IO zone cannot be applied
to the subject property as part of this application. Newland asserts that the County will
be unable to enforce a 10 acre minimum lot size on the subject property at the time of
development because the zone will allow smaller lot sizes as of right. Newland is also
concerned that this issue must be raised and resolved at the time of this Comprehensive
Plan amendment and zone change in order to properly preserve the argument, instead of
leaving that discussion for some point in the future when an actual development proposal
is poised for review. Newland argues that once the current proposal is approved, and if
unappealed becomes acknowledged, MUA-IO zone will allow smaller lot sizes and as a
result OAR 660-004-0040(7)(i)(A) will be thwarted.
The Hearings Officer finds that Newland has taken OAR 660-004-0040(7)(i)(A) out of its
intended context. OAR 660-004-0000 states that "[t]he purpose of this division is to
interpret the requirements of Goal 2 and ORS 197.732 regarding exceptions." This
division discusses rules that apply specifically to three different types of exceptions
allowed under ORS 197.732 -"Physically Developed, Irrevocably Committed, and
Reasons." The section identified by Newland, OAR 660-004-0040 only applies once
such an exception has already been taken by the local government. The purpose of this
section is "[t]o specify how Goal 14 "Urbanization" applies to rural lands in
acknowledged exception areas planned for residential uses," Once again, that is not what
the present application seeks to accomplish. While the 10 acre minimum lot size may
apply to lands already identified as exception areas and zoned for rural residential use,
the rule by its own terms does not apply to lands which are not exception areas. The
Hearings Officer finds that there is no intent under this rule to apply a 10 acre minimum
13
lot size to lands which were never identified as exception areas, and if proven to be
nonagricultural lands, would never require an exception in order to be zoned and
developed to rural residential standards.
For these reasons, the Hearings Officer finds that OAR 660-004-0040(7)(i)(A) does not
prohibit the County from applying the MUA-lO zone to the subject property.
Chapter 23.68, Public Facilities
Section 23.68.020, Policies
1. Public facilities and services shall be provided at levels and in
areas appropriate for such uses based upon the carrying capacity
of the land, air and water, as well as the important distinction that
must be made between urban and rural services. In this way
public services may guide development while remaining in concert
with the public's needs.
3. Future development shall depend on the availability of adequate
local services in close proximity to the proposed site. Higher
densities may permit the construction of more adequate services
than might otherwise be true. Cluster and planned development
shall be encouraged.
9. New development shall not be located so as to overload existing or
planned facilities, and developers or purchasers should be made
aware of potentially inadequate power facilities in rural areas.
FINDINGS: The Staff report states that the applicant submitted letters from various
service providers that indicated that services could be made available for residential use
of the subject property if rezoned.
Newland appears to dispute this finding by arguing that ultimately the lots that may result
from an eventual development plan may rely on on-site wells for water, and that no
factual analysis of the adequacy of the city sewer or infrastructure has been conducted to
support the application.
The record shows that some service providers have been contacted and have indicated an
ability to serve the subject property, or have not objected to this Comprehensive Plan
amendment and zone change. The policies identified above do not require the applicant to
demonstrate at the time of the Comprehensive Plan amendment or zone change that water,
sewer, storm water or other public utilities are currently sufficient to support the
maximum buildout that may ultimately be allowed by the approved zoning. Here,
Newland does not present evidence or argument that supports the position that rezoning
the subject property to a density of approximately 38 10-acre lots is so intensive that it
would "overload existing or planned facilities." For these reasons, the Hearings Officer
14
finds that the record is sufficient to demonstrate that the proposal can comply with the
identified public facilities policies.
Chapter 23.96, Open Space, Areas of Special Concern, and Environmental
Quality
Section 23.96.030, Policies
10. As part of subdivision or other development review, the
County shall consider the impact of the proposal on the air,
water, scenic and natural resources of the County. Specific
criteria for such review should be developed. Compatibility of
the development with those resources shall be required as
deemed appropriate at the time given the importance of those
resources to the County while considering the public need for
the proposed development.
FINDING: Staff found, and the Hearings Officer agrees, that this policy is not
applicable as the applicant is not seeking subdivision or development review at this time.
The proposed rezone should have minimal impact on the air and water resources of the
County. The record shows that water can be provided by either private wells, or by
Avion Water Company.
A. That the change in classiilCation for the subject property is consistent
with the purpose and intent of the proposed zone classification.
FINDING: The purpose of the MUA-l 0 zone is listed under DCC 18.32.010 as follows:
The purposes of the Multiple Use Agricultural Zone are to preserve the rural
character of various areas of the County while permitting development
consistent with that character and with the capacity of the natural resources
of the area; to preserve and maintain agricultural lands not suited to full
time commercial farming for diversified or part-time agricultural uses; to
conserve forest lands for forest uses; to conserve open spaces and protect
natural and scenic resources; to maintain and improve the quality ofthe air,
water and land resources of the County; to establish standards and
procedures for the use of those lands designated unsuitable for intense
development by the Comprehensive Plan, and to provide for an orderly and
efficient transition from rural to urban land use.
The applicant responded to this provision in the Burden of Proof. The Hearings Officer
finds that the proposal is consistent with the purpose of the MUA-lO zone.
B. That changing the zoning will presently serve the public health, safety
and welfare considering the following factors:
15
1. The availability and efficiency of providing necessary public
services and facilities.
2. The impacts on surrounding land use will be consistent with the
specific goals and policies contained within the Comprehensive
Plan.
FINDING: The applicant has obtained letters from relevant service agencies and
providers. Those letters are in the record. The foregoing findings for Public Facilities
are incorporated here by reference. This criterion is met.
C. That there has been a change in circumstances since the property was
last zoned, or a mistake was made in the zoning of the property in
question.
FINDING: As an initial matter, Staff found that there was not a mistake made in the
County's original decision to designate the property as agriculture, and in zoning the
property for exclusive farm use. The land holding was large, and this site would likely
not have qualified for a rural residential exception area, based on its development pattern
or lack thereof, at the time. Nor was the subject property committed to any development
proposal at the time (1979) it was zoned for farm use. The fact that it was in federal
ownership may have been a small factor in its being zoned EFU, but the parcel size and
lack of development probably played a much larger role in its current zoning designation.
The applicant has addressed this criterion on pages 16-17 of the Burden of Proof. Other
than the applicant's statement about federal ownership being the main reason for its
current zoning, Staff agreed with the applicant's arguments on this criterion. Staff found
that there have been several changes of circumstances since it was zoned for farm use in
November of 1979, as outlined in the applicant's Burden of Proof statement, one of the
most significant being the urbanization of the adjacent portion of the City of Bend. As
argued in the record, the rural residential Comprehensive Plan designation and MUA-l 0
zone would be consistent with providing a transition between the urban uses in the City if
Bend and the lands to the east of the subject property.
OAR 660-033-0020
The applicant is arguing that the zone change is justified because the soils on the subject
property are predominantly Class VII and VIII. Staff reviewed that assertion under this
section and for ease of comparing the Staff report to this decision I will do so as well.
The question here is whether the 380 subject property acres meets the state definition of
"agricultural land."
OAR 660-033-0020(1)(a) provides the definition of "agricultural land" which includes
the three following categories:
(A) Lands classified by the u.S. Natural Resources Conservation Service O'l"RCS) as
predominantly Class I-IV soils in Western Oregon and I-VI soils in Eastern
Oregon;
16
(B) Land in other soil classes that is suitable for farm use as defined in ORS
215.203(2), 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; and accepted
farming practices; and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent or
nearby agricultural lands
OAR 660-033-0020(l)(a)(A)
In response to this portion of the definition, the applicant submitted a soil investigative
report, prepared by Roger Borine. In short, that report concludes that the subject property
is composed predominantly of Class VII and VIII soils which do not meet the definition
set forth in this administrative rule.
Newland argued at both the March 20, 2012 public hearing and in written submissions
that in order for the County to rely on the applicant's soils report, the recently adopted
Oregon statute at ORS 215.211 and DLCD rules at OAR 660-033-0030 and 0045 must be
applied to this application. Newland argued that these administrative rules, adopted on
October 1,2011, clearly apply to the application. This does not appear to be disputed.
Newland then argued that a specific provision, OAR 660-033-0030(5)(b), which
essentially mimics the statute, triggered a required review by DLCD of the Borine report.
Newl~d argued that the County was prohibited by both the statute and DLCD rule from
relying on the report until the DLCD had conducted a review under the rigorous
provisions of OAR 660-033-0045.
The applicant and DLCD disagreed with Newland. Specifically, the applicant provided
an April 3, 2012 letter from DLCD representative Katherine Daniels in which she argues
that OAR 660-033-0030(5)(b) is only triggered where an applicant and the local
government desired to rely upon a soils report, such as the Borine report, to challenge or
contradict the NRCS Soil Survey, which is considered to be the primary source of soils
information for the state.
OAR 660-033-0030(5)(b) states:
"If a person concludes that more detailed soils information than that
contained in the Internet soil survey of soil data and information produced
by the National Cooperative Soil Survey operated by the NRCS of the
USDA has of January 2,2012, would assist a county to make a better
determination of whether land qualifies as agricultural land, the person
must request that the department arrange for an assessment of the
capability of the land by a professional soil classifier who is chosen by the
person, using the process described in OAR 660-033-0045."
Newland argued, and the Hearings Officer agrees, that this provision may be applicable
in the context of a request to change the zoning of EFU land to a non-resource zone.
17
OAR 660-033-0030(5)(c). However, the Hearings Officer disagrees with Newland that a
DLCD analysis is necessary as part of the current application. I also disagree with Ms.
Daniels's interpretation of OAR 660-033-0030(5)(b), because it reads too much into the
administrative rule and probably grants the department more discretion than the statute
intends, but my disagreement is not relevant to the review of this application.
In this case, Newland reads the administrative rule far more strictly than the actual
language of the rule indicates. The rule does not require that any time an applicant
submits a soils report in support of an application to rezone EFU land to a non-resource
zone that the report must be vetted by DLCD. That analysis is only triggered when the
report "would assist a county to make a better determination of whether land qualifies as
agricultural land." Where the NRCS Soils Survey itself is sufficient to demonstrate that
the land in question is predominantly Class VII and VIII soils, and a supplemental soils
report merely confirms that data, the rule is not necessarily triggered.
Here, the record contains three sets of corroborating data which all appear to indicate that
at least 50 percent, and as much as 70 percent, of the subject property is composed of
Class VII and VIII soils. The primary data is the information submitted by the applicant
in its April 18, 2012 letter which contains the NRCS Soil Survey. The supplemental data
includes the Borine report, and calculations submitted by Staff which were initially
identified in a March 20,2012 e-mail from Tim Berg to Paul Blikstad, and then refined
and submitted during the open record period as a table showing that the subject property
is composed of at least 51 percent Class VII and VIII soils. Taken together, this
information is sufficient to demonstrate that the subject property is not predominantly
agricultural land as defined in administrative rule. While the Borine report is helpful in
confirming the base soil survey data, the application is not solely dependent on the report,
and the Hearings Officer would consider it unreasonable to expect the applicant to seek
and obtain an additional DLCD review of the report when other reliable data adequately
serves the same purpose.
Newland submitted criticism of the Borine report in one of its Apri120, 2012 submissions
arguing that the report does not adequately explain a distinction between Class VI and
Class VII components of some of the Deskamp-Gosney soils on the property. The
Hearings Officer does not find these arguments persuasive. Newland's criticisms appear
to be adequately answered by the applicant submission of the NRCS Soils Survey and
Staff calculations of Class VII and VIII soil types on the subject property.
The Hearings Officer would also note that while Newland is careful to confine its
criticism to the Borine report, to be successful in demonstrating that the subject property
is predominantly composed of Class I-VI soils, and therefore not eligible to be rezoned
from EFU zoning, Newland might be required to prove that the NRCS Soils Survey for
the subject property is incorrect. Such a challenge would appear to require a soils report
that would "assist a county to make a better determination" about whether the subject
property qualifies as agricultural land, and would likely trigger the DLCD review
required by OAR 660-033-0030(5)(b). In other words, the "person" identified in ORS
18
215.211 and OAR 660-033-0030(5)(b) could be the applicant or any opponents of an
application as well.
OAR 660-033-0020{l)(a)(B)
OAR 660-033-0020(1)( a)(B) requires that the applicant demonstrate that even though the
subject property may be composed of soil Classes VII and VIII, the property is also not
"suitable for farm use." The state administrative rules implementing Goal 3 explain how
local governments are to determine whether land is suitable for farm use.
OAR 660-003-0030(2) * * * whether land is "suitable for farm use"
requires an inquiry into factors beyond the mere identification of scientific
soil classifications. The factors are listed in the definition of agricultural
land set forth at OAR 660-033-0020(l)(a)(B). This inquiry requires the
consideration of conditions existing outside the lot or parcel being
inventoried. Even if a lot or parcel is not predominantly Class I -IV soils or
suitable for farm use, Goal 3 nonetheless defines as agricultural "lands in
other classes which are necessary to permit farm practices to be
undertaken on adjacent or nearby lands." A determination that a lot or
parcel is not agricultural land requires findings supported by substantial
evidence that addresses each of the factors set forth in OAR 660-033
0020(1).
(3) Goal 3 attaches no significance to the ownership of a lot or parcel
when determining whether it is agricultural land. Nearby or adjacent land,
regardless of ownership, shall be examined to the extent that a lot or parcel
is either "suitable for farm use" or "necessary to permit farm practices to
be undertaken on adjacent or nearby lands" outside the lot or parcel.
Thus, OAR 660-033-0030(2) requires a review of: 1) fertility, 2) suitability for grazing, 3)
climatic conditions, 4) existing and future availability of water for farm irrigation
purposes, 5) existing land use patterns, 6) technological and energy inputs required, 7)
and accepted farming practices.
In addition to addressing these seven factors, the Land Use Board of Appeals has recently
explained that these two provisions read in conjunction with Oar 660-033-0020(l)(a)(B)
allow a local government to consider whether "a reasonable farmer" would be motivated
to put the land to agricultural use. Wetherell v. Douglas County, _Or LUBA_, LUBA
No. 2010-052, September 16,2010. LUBA has also held that where the question of
whether the land can be used for grazing has been raised in the local proceedings that
OAR 660-033-0030(3) requires that the local government consider whether the subject
property can be used in conjunction with adjoining or nearby agricultural or grazing
operations. Wetherell v. Douglas County (Garden Valley Estates), 58 Or LUBA 101, 116
(2008).
19
On this topic, Staff found: "The use ofthe subject property for fann use in conjunction
with adjacent lands is not possible. There is no fann use on the adjacent properties. It
would not be combined with any other adjacent land for fanning to occur. The property
is not adjacent to, or intermingled with, lands in class I-VI soils. A small portion of the
subject property (approximately 12 acres) is already located within the Bend urban
growth boundary." These findings appear to be supported by the Burden of Proof, and
the Hearings Officer cannot find any substantial disagreement from participants in this
proceeding including Newland. After reviewing the record, the Hearings Officer agrees
with the findings of Staff.
OAR 660-033-0020Cl)(a)(C)
This rule addresses whether retaining the subject property as agricultural land is
necessary to allow adjacent properties to continue to function as agricultural land. For
the same reasons discussed in the findings for OAR 660-033-0020(l)(a)(B), I find that
the application is consistent with OAR 660-033-0020(l)(a)(C).
OAR 660, Division 12, Transportation Planning Rule
OAR 660-012-060, Plan and Land Use Regulation Amendments.
(1) Amendments to functional plans, acknowledged Comprehensive
Plans, and land use regulations which significantly affect a
transportation facility shall assure that allowed land uses are
consistent with the identified function, capacity, and performance
standards (e.g. level of service, volume to capacity ratio, etc.) of the
facility. This shall be accomplished by either:
(a) Limiting allowed land uses to be consistent with the planned
function, capacity and performance standards of the
transportation facility;
(b) Amending the TSP to provide transportation facilities
adequate to support the proposed land uses consistent with the
requirements of this division;
(c) Altering land use designations, densities, or design
requirements to reduce demand for automobile travel and
meet travel needs through other modes; or
(a) Amending the TSP to modify the planned function, capacity
and performance standards, as needed, to accept greater motor
vehicle congestion to promote mixed use, pedestrian friendly
development where multimodal travel choices are provided.
(2) A plan or land use regulation amendment significantly affects a
transportation facility if it:
(a) Changes the functional classification of an existing or planned
transportation facility;
20
(b) Changes standards implementing a functional classification
system;
(c) Allows types or levels or land uses which would result in levels
of travel or access which are inconsistent with the functional
classification of a transportation facility; or
(d) Would reduce the performance standards of the facility below
the minimum level identified in the TSP.
(3) Determinations under subsections (1) and (2) of this section shall be
coordinated with affected transportation facility and service providers
and other affected local governments.
FINDING: Stafffound, and the Hearings Officer agrees, that the above language is
applicable to the applicant's proposal because it involves an amendment to an
acknowledged plan. The applicant is not proposing any land use development of the
property at this time and has indicated that future development may include rural
residential uses.
The applicant submitted a transportation impact analysis (TIA) with the application and
this analysis was later supplemented by the January 10,2012 Kittelson memorandum
noted in the findings above. Staff found that the TIA, with the additional analysis to
include the density bonus, demonstrates that the transportation facilities in the area will
not be impacted to the point of changing the functional classification of any road, or
affecting the performance standards of the TSP. The Hearings Officer agrees.
The record shows that Staff sent (notice) of the proposed plan amendment and zone
change to a total of 16 different public agencies, including the City of Bend Engineering,
Bend Fire Department, Central Electric Cooperative, Pacific Power and Light, Oregon
Department of Transportation, Bend-La Pine School District, County Road Department,
Bend Metro Parks and Recreation District, Arnold Irrigation District, Central Oregon
Irrigation District, Watermaster, Bureau of Land Management, PG & Gas Transmission,
Qwest). The submitted responses are listed in the foregoing Public Agency comments.
Staff found, and the Hearings Officer agrees, that this notice complies with the "shall be
coordinated with affected transportation facility and service providers" as listed above.
OAR 660, Division 15, Statewide Planning Goals and Guidelines
FINDING: Findings regarding the Statewide Planning Goals and Guidelines are
provided below:
Goal 1, Citizen Involvement. The Planning Division has provided notice of the
proposed plan amendment and zone change to the public through individual notice to
affected property owners, the applicant will be posting a "proposed land use action sign,"
and notice ofthe public hearing will be in the "Bend Bulletin" newspaper. In addition, a
public hearing will be held on the proposed plan amendment/zone change.
Goal 2, Land Use Planning. Goals, policies and processes related to zone change
applications are included in the Deschutes County Comprehensive Plan, and Title 18 of
21
the Deschutes County Code. The application of the processes and policies/regulations
are documented within this Staff report.
Goal 3, Agricultural Lands. Based on the evidence and argument in this proceeding,
the applicant has successfully demonstrated that the subject property is no agricultural
land. Goal 3 does not apply.
Goal 4, Forest Lands. The existing site and surrounding areas do not include any lands
that are zoned for, or that support, forest uses.
GoalS, Open Spaces, Scenic and Historic Areas and Natural Resources. According
to the submitted information, the site has caves that are required by the agreement
between the applicant and the Bureau of Land Management to preserve and protect the
existing caves on this property area. The applicant has committed that this will occur.
Goal 6, Air, Water and Land Resources Quality. The applicant does not propose a
specific use for the property at this time. Rezoning the property to MUA-IO will not
impact the quality of the air, water, and land resources.
Goal?, Areas Subject to Natural Disasters and Hazards. This goal is not applicable
because the subject property is not located in a known natural disaster or hazard area.
Goal 8, Recreational Needs. The proposed plan amendment and zone change do not
affect recreational needs.
Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout
the state for a variety of economic activities. The proposal will not adversely impact
economic activities of the state or area.
Goal 10, Housing. Since the applicant is not proposing a housing development at this
time, this goal is not applicable and the applicant's zone and plan changes will not affect
the supply of needed housing.
Goal 11, Public Facilities and Services. The applicant's proposal will have no adverse
effect on the provision of public facilities and services to the subject site.
Goal 12, Transportation. The above findings on the Transportation component of the
Comprehensive Plan and TPR demonstrate that rezoning the property to MUA-IO will
not adversely impact transportation facilities.
Goal 13, Energy Conservation. Since no specific development is associated with the
proposed plan amendment and zone change, the proposal will not have an effect on
energy use or conservation.
22
Goal 14, Urbanization. This goal is not applicable because the applicant's proposal
does not affect property within an urban growth boundary and does not promote the
urbanization of rural land.
Goals 15 through 19. These goals do not apply.
IV. CONCLUSION:
Based on the record and the Findings of Fact and Conclusions of Law set forth
above, the Hearing Officer recommends that the application be APPROVED.
Kenneth D. Helm, Hearings Officer
A DECISION BY THE HEARINGS OFFICER BECOMES FINAL TWELVE (12)
DAYS AFTER THE DATE OF MAILING, UNLESS APPEALED BY A PARTY
OF INTEREST.
Dated this 10th day of July, 2012 Mailed this 10th day of July, 2012.
23