HomeMy WebLinkAboutBend Airport Master Plan UpdateDeschutes 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 13, 2011
Please see directions for completing this document on the next page.
DATE: June 23, 2011
FROM: Kevin Harrison
Community Development Department 385-1401
TITLE OF AGENDA ITEM:
A continued public hearing to consider a proposal to change the Comprehensive Plan Map designation
of the subject property from Agriculture to Airport Development, and rezone the property from
Exclusive Farm Use to Airport Development - Airport Support District.
PUBLIC HEARING ON THIS DATE? Yes.
BACKGROUND AND POLICY IMPLICATIONS:
Gibson Airpark, LLC (applicant) applied for a Plan Amendment and Zone Change (PA -08-3, ZC-08-3)
for property located at 22525 Nelson Road, and identified on County Assessor map 17-13-20, as tax
lots 400 and 403. The proposal would change the Comprehensive Plan Map designation of the subject
property from Agriculture to Airport Development, and rezone the property from Exclusive Farm Use
to Airport Development - Airport Support District.
A public hearing was held before the Deschutes County Hearings Officer on December 16, 2008.
Based on the information in the record, the Hearings Officer denied the application in a decision dated
January 22, 2009. The basis of the Hearings Officer decision was twofold: 1) The proposal is not
consistent with Statewide Planning Goal 2, and 2) There has not been a change in circumstances that
warrants re -designating the site for airport -related uses.
Goal 2 requires that all decisions and actions related to use of land have an adequate factual base. In
this case, the Hearings Officer determined that a significant component of the required factual base is
consistency with the adopted Bend Municipal Airport Master Plan (1994, amended 2002). In the
burden of proof, the applicant argued that the proposed amendments were necessary to accommodate a
growing demand for additional land at the Bend Airport to support future uses. The Hearings Officer
disagreed and found that the Airport Master Plan indicates that there is sufficient land available
throughout the 2002-2021 planning period.
Deschutes County Code (DCC) 18.136.020 details four (4) factors that must be considered when
reviewing a proposed zone change. The factor under subsection 'D' states, "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." For this criterion, the applicant argued that there are two pieces of evidence to
support its contention that there has been a change in circumstances that warrants a re -designation.
First, the applicant states that the purchase by the City of Bend of a portion of tax lot 400 essentially
bisects that tax lot and makes the application of irrigation water impractical. Secondly, the applicant
argues that the Bend Airport has changed since it was originally zoned, resulting in a need for
additional land zoned for airport use. The Hearings Officer disagreed and found that there is
insufficient evidence to support a finding that there has been a change in circumstances since the
property was last zoned that warrants a rezone.
Following the public hearing before the Hearings Officer, a public hearing was held before the Board of
County Commissioners ("Board") on February 28, 2009. At that hearing, the Board indicated that an
update to the Bend Municipal Airport Master Plan was necessary before the Board would consider a
Plan Amendment and Zone Change. In response, the applicant requested a continuance of the public
hearing to August 3, 2009, which was granted by the Board.
On July 27, 2009, the applicant submitted a letter into the record requesting a second continuance of the
public hearing to the summer of 2010 to allow time for the City of Bend to complete the Airport Master
Plan update. At the August 3, 2009 public hearing, the Board granted a continuance to February 10,
2010.
The applicant submitted letters into the record (January 21 and 27, 2010) requesting a continuance of
the February 10, 2010 hearing to the spring of 2011. This continuance would allow time for the City of
Bend to complete the Airport Master Plan update. At the public hearing on February 10, 2010, the
Board granted the requested continuance to July 13, 2011.
According to the City of Bend, the Bend Airport Manager has initiated the update process and last
briefed the City Council on June 1, 2011. The update includes 9 chapters to the master plan and drafts
ofthe first 5 chapters have been prepared. The City has not yet started on the land use assumptions.
The project schedule shows an aniticipated date for FAA approval in the winter of 2012.
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
As determined by the Board.
ATTENDANCE: Kevin Harrison
DISTRIBUTION OF DOCUMENTS:
Kevin Harrison
Patrick Gisler
Gibson Airpark, LLC
1345 NW Wall Street, Suite 100
Bend, OR 97701
William Van Vactor & Jeffrey Wilson
Miller Nash LLP
446 NW Third Street, Suite 230
Prineville, OR 97754
Gary Judd
Bend Airport Manager
PO Box 431
Bend, OR 97709
S
Community Development Department
Planning Division building Safety Division Environmental Health Division
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117 NW Lafayette Avenue Bend Oregon 97701-1925
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
STAFF REPORT
FILE NUMBERS: PA -08-3, ZC-08-3
HEARING DATE:
LOCATION:
October 21, 2008
6:30 P.M.
Barnes and Sawyer rooms of the
Deschutes Services Building
1300 NW Wall Street
Bend, Oregon 97701
The property is identified on Deschutes County Assessor map 17-
13-20, as tax lots 400 and 403. Tax lot 400 has an assigned
address of 22525 Nelson Road.
APPLICANT/ Gibson Airpark, LLC
OWNER: 1345 NW Wall Street, Suite 100
Bend, OR 97701
REQUEST:
The applicant is requesting an amendment to the Deschutes
County`Comprehensive Plan Map to change the map designation
of the subject property from Agricultural to Airport Development.
The applicant is also requesting a zone change for the subject
property from Exclusive Farm Use to Airport Development
(Aviation Support District). The subject property is located along
the southern border of the Bend Municipal Airport.
STAFF CONTACT: Anthony Raguine, Senior Planner
I. APPLICABLE STANDARDS & CRITERIA:
A. Statewide Planning Goals and Oregon Administrative Rules (OAR) Chapter 660
1. Oregon Statewide Planning Goal 1, 2, 3, 4, and 12
2. Other Applicable Statewide Planning Goals as described below.
3. OAR Chapter 660
a. Division 4, Interpretation of Goal 2 Exception Process
b. Division 11, Public Facilities Planning
c. Division 12, Transportation Planning
d. Division 13, Airport Planning
B. Deschutes County Comprehensive Plan
1. Chapter 23.64, Transportation System Plan
Quality Services Performed with Pride
a. Section 23.64.200. Airports
2. Chapter 23.120, Goal Exception Statement
a. Section 23.210.070. Bend Municipal Airport Exceptions Statement
C. Deschutes County Zoning Ordinance
1. Chapter 18.136, Amendments
a. Section 18.136.020. Rezoning standards.
D. Deschutes County Development Procedures Ordinance
1. Chapter 22.20, Review of Land Use Action Applications
a. Section 22.20.030. Final action in land use actions.
II. FINDINGS OF FACT:
A. ExistinQZoning and Comprehensive Plan Designations: The subject property is
currently zoned Exclusive Farm Use (EFU) and has a Comprehensive Plan map
designation of Agricultural.
B. Location: The subject property is identified on Deschutes County Assessor map
17-13-20, as tax Tots 400 and 403. Tax lot 400 has an assigned address of
22525 Nelson Road.
C. Site Description: The subject property is relatively flat, composed of two tax lots
(400 and 403), and is a total of 45.1 acres in size. Tax lot 400 is currently
developed with two dwellings (1970 and 1975), and is bounded by the Bend
Municipal Airport to the north, Nelson Road to the east, Nelson Road and tax lot
403 to the south, and Powell Butte Highway to the west. Tax lot 400 is
approximately 22.3 acres in size, and is essentially bisected into east and west
halves by tax lot 401, which is owned by the City of Bend. Tax lot 403 is
undeveloped, and is bounded by tax lot 400 to the north and west, tax lot 700 to
the east, and tax lot 500 to the south. Tax lot 403 is approximately 22.8 acres in
size and is bisected from northeast to southwest by Nelson Road.
D. Surrounding Uses: The subject property is surrounded by the Bend Municipal
Airport to the north, with rural residential and farm uses to the east, south, and
west on lands zoned EFU and Multiple Use Agricultural (MUA).
E. Proposal: The applicant is requesting an amendment to the Deschutes County
Comprehensive Plan Map to change the map designation of the subject property
from Agricultural to Airport Development. The applicant is also requesting a zone
change for the subject property from Exclusive Farm Use to Airport Development
(Aviation Support District). The subject property is located along the southern
border of the Bend Municipal Airport.
F. Agency Comments: The Planning Division mailed notice to several public
agencies and received the following comments.
1. Senior Transportation Planner, Peter Russell: I have read and reviewed
the traffic study for Gibson Airpark and have found there are a couple of
areas that need to be addressed. First, the land use is a plan
PA -08-3, ZC-08-3, Gibson Airpark Page 2
amendment/zone change and under DCC 17.16.115(EX1)(d) the traffic
study must use a 20 -year timeframe. The submitted traffic study
often references the traffic guidelines for the City of Bend, which is
incorrect as all affected roads and the land itself are under the jurisdiction
of Deschutes County. The applicant needs to abide by DCC 17.16.115.
Finally, the current study only goes to 2014 whereas it should extend to
2018. The longer timeframe is also a component of the state's
Transportation Planning Rule (TPR) at OAR-660-012-0060(1Xc).
Second, traffic analyses forzone change/plan amendments to comply
with the TPR typically look at a reasonable worst case scenario. That
means taking the highest traffic generator that could be approved outright
under the existing zoning then comparing and contrasting that to the
highest traffic generator allowed outright under the requested zoning.
This comparison is then used to determine if the proposed plan
amendment/zone change will have a significant affect as defined by the
TPR. The current traffic 'study does not perform that level of analysis of
comparing potential traffic volumes from Exclusive Farm Use (EFU) to
Airport Development (AD).
The plan also indicates a realignment of Nelson Road - a rural collector -
in Phase 111; the applicant needs to state whether that is consistent with
the Bend Airport Master Plan.
[STAFF COMMENT: Via electronic mail dated September 16, 2008, County Engineer
George Kolb, Road Department, agrees with Mr. Russell's comments.]
2. Bend Fire Department:
a. Refer to the required Operational Permit requirements of the 2007
Oregon Fire Code Section 105.6.3 for Aviation Facilities.
b. Refer to Chapter 11 of the 2007 Oregon Fire Code for the code
requirements for Aviation Facilities.
3. Bend Municipal Airport Manager, Sue Palmeri: I am not writing this letter
in support of or against the proposed land use request rather, as the
Manager of the Bend Airport, to ensure that the County is aware of the
City's obligations related to our acceptance of Federal Aviation
Administration (FAA) Airport Improvement Program grants and possible
future use of the property included in this land use application.
The City has an obligation to make an airport available for the use and
benefit of the public, however this obligation does not require the City to
permit ground access by aircraft from adjacent property (known as
"through -the -fence"). The FAA's position is that through -the -fence
arrangements can place an encumbrance upon the airport property and
reduce the airport's ability to meet its Federal obligations. As a general
principal the FAA does not support agreements that grant access to the
public landing area by aircraft stored and serviced off-site on adjacent
property.
PA -08-3, ZC-08-3, Gibson Airpark Page 3
[STAFF COMMENT: To date, staff has not received comments from the FM on this
proposal. The applicant's •supplemental burden of proof indicates on-going
conversations with the FAA and Ms. Palmeri regarding through -the -fence operations.]
The following agencies did not respond to the Notice, or responded with
No Comment: County Assessor, County Building Division, County
Environmental Health Division, County Property Address Coordinator, City of
Bend Planning Department, Central Oregon Irrigation District, Oregon
Department of Transportation, Federal Aviation Administration.
H. Public otice and Comments: The Planning Division mailed notice of this
application to all property owners within 750 feet of the subject property. No
comments were received.
III. CONCLUSIONS OF LAW:
A. Statewide Planning Goals
1. Goal 1: Citizen Involvement
Oregon Statewide Planning Goal 1 seeks "To develop a citizen
Involvement program that insures the opportunity for citizens to be
involved in all phases of the planning process."
RESPONSE: As part of the plan amendment and zone change process, public notice
was provided to affected agencies and surrounding area property owners. Additionally,
the county will hold public hearings before a hearings officer and before the County
Commissioners. Staff believes the intent of Goal 1 would be met.
2. Goal 2: Land Use Planning
Oregon Statewide Planning Goal 2 seeks "To establish a land use
planning process and policy framework as a basis for all decision
and actions related to use of land and to assure an adequate factual
base for such decisions and actions."
RESPONSE: In accordance with Goal 2, the applicant has submitted an application for
the proposed amendment and rezone. In addition to the burden of proof submitted with
the application, a supplemental burden of proof was received on October 6, 2008 to
address concerns raised by staff detailed in a letter mailed to the applicant on
September 23, 2008. The applicant has provided sufficient information to assure an
adequate factual base to enable the county to make an informed decision regarding the
proposal. Staff believes the intent of Goal 2 would be met.
3. Goal 3: Aqricultural Lands
Oregon Statewide Planning Goa! 3 seeks "To preserve and maintain
agricultural lands."
PA -08-3, ZC-08-3, Gibson Airpark Page 4
FINDING: The subject property is currently zoned EFU and has been designated
agricultural on the Deschutes County Comprehensive Plan Map. Goal 3 provides a
definition of agricultural land, which is detailed in the implementing administrative rules
under OAR 660-033-020 as follows:
(1)(a) "Agricultural Land" as defined in Goa! 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service
(NRCS) as predominantly Class I-IV soils in Western Oregon and I -VI soils in
Eastern Oregon;
(B) Land in other soil classes that is suitable for farm use as defined in ORS
215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic
conditions; existing and future availability of water for farm irrigation purposes;
existing land use patterns; technological and energy inputs required; and
accepted farming practices; and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent
or nearby agricultural lands.
(b) Land in capability classes other than 1-IV/1-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 applicant argues that the subject property does not meet the definition of agricultural
land. Based on the above language, staff believes that the subject property must pass
four "tests", identified as subsections 1(a)(A-C) and 1(b), to determine whether the
property meets the definition of agricultural land or should be inventoried as agricultural
land.
Soil classification
The subject property is located in "Eastern Oregon', as this term is defined in OAR 660-
033-020'. According to Soil Investigation Report: Land Capability Classification
Determination for Agricultural Land (May 22, 2008), prepared by Roger Borine a
Certified Professional Soil Classifier (#24918):
1. Tax lot 400 is approximately 17 percent, or 4.5 acres, of land capability
classification (LCC) 3 (irrigated) and 6 (nonirrigated), and 83 percent, or 22.3
acres of LCC 718;
2. Tax lot 403 is approximately 13 percent, or 3.4 acres, of LCC 3 (irrigated) and 6
(nonirrigated), and 87 percent, or 22.8 acres, of LCC 718.
Although the subject property contains a total of 28.59 acres of water right, at best only
approximately 15 percent of the property would be Class 3 soils, with the remaining
approximately 85 percent of the property Class 7/8. Based on this information, the
applicant argues, and staff concurs, that the subject property is not predominately Class
1 (5) °Eastern Oregon" means that portion of the state Tying east of a line beginning at the
intersection of the northern boundary of the State of Oregon and the western boundary of Wasco
County, then south along the western boundaries of the Counties of Wasco, Jefferson, Deschutes
and Klamath to the southern boundary of the State of Oregon.
PA -08-3, ZC-08-3, Gibson Airpark Page 5
1 -VI soils and, therefore, does not meet the definition of agricultural land in OAR 660-
033-020(1)(aXA).
Land in other soil classes
As noted above, only approximately 15 percent of the subject property would contain
Class 3 soils if irrigated. Although the subject property includes 28.59 acres of water
right, staff can find no evidence that the property has ever been irrigated, or evidence of
a water delivery system. Given the irregular shape of tax lot 400, with city -owned tax lot
401 bisecting it, and the fact that Nelson Road bisects tax lot 403, staff believes it would
be difficult to apply irrigation water to the subject property. Even combining tax lot 400
with the portion of tax lot 403 that abuts it, staff believes it would be difficult to apply
irrigation water to this tract.
Next, staff analyzes the property's suitability for livestock production. For staff to
consider the potential for beef cattle production, the calculations regarding potential
productivity for livestock forage are detailed below. Estimates on the value of beef
production are based on the following assumptions, which have been derived through
consultation with OSU Extension Service:
One AUM is the equivalent to the forage required for a 1000 ib. Cow and calf to
graze for 30 days (900 pounds forage).
On good quality forage, an animal unit will gain 2 pounds per day.
Two animal units will eat as much in one month as one animal unit will eat in two
months.
Forage production on dry land is not continuous: Once the forage is eaten, it
generally will not grow back until the following spring.
An average market price for beef is $.80 per pound.
Based on these assumptions, the value of beef production on the property can be
calculated, presuming one acre is deducted from each parcel for a home site, using the
following formula:
30 days X 2#/day/acre = 24.0 lbs. Beeflacre
(2.5 acres per AUM)
24.0 lbs. Beeflacre x 45.1 acres x $0.80 /Ib. = $865.92
Thus, the total gross beef production potential for the subject property would be
approximately $865.92 annually. This figure represents gross income and does not
deduct the costs of land acquisition, or farm operating costs such as fencing costs, water
expenses, land preparation, calves, veterinary costs, or any other costs of production.
After deducting those costs, staff believes it is clear the property could not be farmed
profitably and, therefore, would be not suitable for the production of livestock via grazing.
The subject property could potentially be combined with other farm uses in the area,
including existing livestock grazing operations. Staff notes that the portion of tax lot 403
to the east and south of Nelson Road abuts two properties that appear to be currently
employed in farm use — tax lot 500 to the south and tax lot 700 to the east. Both parcels
are irrigated, and both include livestock grazing.
PA -08-3, ZC-08-3, Gibson Airpark Page 6
Staff believes it would be difficult to combine all of the subject property (tax lots 400 and
403) with tax lot 500 or 700, with a publicly dedicated road (Nelson Road) running
between the properties, and the city -owned tax lot 401 essentially bisecting tax lot 400.
However, the portion of tax lot 403 lying east and south of Nelson Road that is abutting
tax lots 500 and 700 could be combined for farm use. Staff believes the applicant
should address the feasibility of combining the above -referenced portion of tax lot 403
with tax lot 500 or 700 for farm use. Staff notes that no comment was received from the
owners of tax Tots 500 or 700 indicating a desire to increase the size of their farm use.
Farm practices on adjacent or nearby agricultural lands
As detailed previously, staff believes it would be difficult to combine all of the subject
property with the livestock grazing on tax Tots 500 and 700 due to the presence of
Nelson Road between the properties. However, staff also notes that the portion of tax
lot 403 lying east and south of Nelson Road could be combined with tax lot 500 or 700
for farm use. Staff believes one of the issues under this criterion is whether the above -
referenced portion of tax lot 403 is necessary to permit continued farm practices on tax
lot 500. Specifically, staff is concerned that airport uses on this portion of tax lot 402
could negatively impact existing farm practices on tax lot 500. The existing livestock
grazing could be impacted by the noise associated with airport uses such as hangars
and taxiways, which would be an outright permitted uses in the proposed Aviation
Support District. Staff believes the applicant should address this issue.
Staff notes that no comments were received from adjoining property owners in response
to the notice of these applications.
Farm unit
According to the soil investigation, the subject property is composed predominantly of
Class 7/8 soils. As noted above, the portion of tax lot 403 lying east and south of Nelson
Road abuts tax lots 500 and 700, which appear to be currently employed in farm use.
Both tax lot 500 and 700 contain 36A and 58C soils, are irrigated, and are receiving
special assessment for farm use. Type 36A soils are considered high-value farmland
when irrigated, and have a general rating of Class 111 when irrigated. Based on the
county's geographic information system (GIS) data, staff estimates that approximately
75 percent of tax lot 500 is composed of 36A soils, and slightly over 50 percent of tax lot
700 is composed of 36A soils. For these reasons, staff believes that the portion of tax
lot 403 lying to the east and south of Nelson Road, composed predominantly of Class
7/8 soils, is adjacent to lands with Class 1 -VI soils within a farm unit2. Therefore, staff
believes that at a minimum, this portion of tax lot 403 was correctly inventoried as
agricultural land3.
2 OAR 660-033 does not provide a definition of farm unit. Staff notes that ORS 215.278,
Accessory dwellings for farmworkers; rules, provides the following definition:
(2) As used in this section, "farm unit" means the contiguous and noncontiguous tracts in
common ownership by the farm operator for farm use as defined in ORS 215.203. [2001 c.613
61
Prior to the realignment of Nelson Road to its current location, all of the subject property was
adjacent to tax Tots 500 and 700.
PA -08-3, ZC-08-3, Gibson Airpark Page 7
4. Goal 4: Forest Lands
Oregon, Statewide Planning Goal 4 seeks "To conserve forest lands
by..."
RESPONSE: Staff believes no forest lands exist on-site.
5. Goal 5: Open Spaces, Scenic and Historic Areas, and Natural Resources
Oregon Statewide Planning Goal 5 seeks "To protect natural
resources and conserve scenic and historic areas and open
spaces."
RESPONSE: Goal 5 resources are listed in the county's acknowledged Comprehensive
Plan. There are no known significant Goal 5 resources on the site. Utilizing the selected
site as proposed would have no significant adverse impact on the amount of open space
or scenic views available. Staff believes the intent of Goal 5 would be met.
Impacts on related resources:
Mineral and aggregate resources: The expansion site has never been zoned for mineral
or aggregate resources.
Energy sources: There are no known energy resources on the sites such as natural
gas, oil, coal or geothermal heat.
Fish and wildlife habitat: The expansion site has no designated fish or wetland habitat.
The site is unlikely to contain threatened or endangered species. The site is already
surrounded by development that limits its potential for threatened or endangered
species.
Ecologically and scientifically significant natural areas, including desert areas: Staff
believes nothing about the selected site separates it from surrounding areas as
ecologically or scientifically significant.
Outstanding scenic views: Staff believes nothing about the site indicates it has a
significantly better view than other sites in the vicinity.
Water areas, wetlands, watersheds, and groundwater resources: There are no wetlands
or watersheds within or adjacent to the subject site. Staff is unaware of any watersheds
that would be affected by the proposed plan amendment and zone change. Runoff
control and treatment would be addressed by the city during site plan review for the
school.
Wildemess areas: The site does not meet the definition of "wilderness areas" as
described within the Oregon State Goals and Guidelines. The parcel does not contain
pristine surroundings or old growth trees.
Historic areas, sites, structures and oblects: The subject property has no structures
listed on the National Register of Historic Places. No structures or places of historical
significance have been determined to exist on or near the property selected.
PA -08-3, ZC-08-3, Gibson Airpark Page 8
Cultural areas: The property has no known cultural resources.
6. Goal 6: Air, Water and Land Resources Quality
Oregon Statewide Planning Goal 6 seeks "To maintain and improve
the quality of the air, water, and land resources of the state."
RESPONSE: The applicant is not proposing an exception to compliance with Goal 6.
Maintaining or improving the quality of the community's air, water and land resources
would be assured through enforcement of state and local regulations.
7. Goal 7: Areas Subject to Natural Disasters and Hazards
Oregon Statewide Planning Goal 7 seeks 'To protect people and
property from natural disasters and hazards"
RESPONSE: There are no areas within the subject property that are subject to flooding
or landslide activity. The wildfire hazard for the site is the same as other areas with
junipers and native brush. Development of the site would reduce the potential for
wildfires by providing adequate water to meet the fire flow requirements for future airport
uses.
8. Goal 8: Recreational Needs
Oregon Statewide Planning Goal 8 seeks "To satisfy the recreational
needs of the citizens of the state and visitors and, where
appropriate, to provide for the siting of necessary recreational
facilities including destination resorts."
RESPONSE: Given the location of the subject property adjacent to the airport, staff
believes a recreationalarea on the subject property would not be appropriate.
9. Goal 9: Economic Development
Oregon Statewide Planning Goal 9 seeks "To provide adequate
opportunities throughout the state for a variety of economic
activities vital to the health, welfare, and prosperity of Oregon's
citizens."
RESPONSE: Assuming the subject property is incorporated into the Bend Municipal
Airport, the proposed plan amendment and zone change would allow the establishment
of uses authorized under the Airport Development Zone and Aviation Support District.
Staff believes these uses would provide an opportunity for additional economic
development at the Bend Municipal Airport.
10. Goal 10: Housing
Oregon Statewide Planning Goal 10 seeks "To provide for the
housing needs of citizens of the state."
PA -08-3, ZC-08-3, Gibson Airpark Page 9
RESPONSE: Given the location of the subject property adjacent to the airport, staff
believes additional residential use of the property would not be appropriate.
11. Goal 11: Public Facilities and Services
Oregon Statewide Planning Goal 11 seeks "To plan and develop a
timely, orderly and efficient arrangement of public facilities and
services to serve as a framework for urban and rural development."
RESPONSE: Given the existing surrounding development, in particular the recent
development at the airport (reference SP -08-3 Aero Facilities (hangars)), staff believes
the adequacy of public facilities and services, such as water, electric, and phone, to the
subject property could be accommodated_ However, at this time, staff has concerns
regarding transportation facilities and extension of sewer service.
As noted above, staff has questioned the adequacy of the transportation study submitted
by the applicant. As a result, staff is uncertain if adequate transportation facilities would
be available given the types of uses allowed under the Aviation Support District
designation.
The Bend Municipal Airport is presently served by connection to the City of Bend
Wastewater Treatment Plant. The applicant's burden of proof states that it would not be
necessary to "extend" urban services such as sewer to rural lands because that service
already exists. Staff is unsure if the applicant intends to extend sewer lines from the
Bend Airport to the subject property, or if the applicant intends to serve the property via
an on-site septic system. Staff notes that OAR 660-11-0060(2) states,
(2) Except as provided in sections (3), (4), (8), and (9) of this rule, and consistent
with Goal 11, a local government shall not allow:
(c) The extension of sewer systems that currently serve land outside urban
growth boundaries and unincorporated community boundaries in order to serve
uses that are outside such boundaries and are not served by the system on July
28, 1998.
The Bend Airport is located outside of an urban growth boundary and has been served
by the City of Bend Wastewater Treatment Plant since before July 28, 1998. Staff
believes an extension of sewer service from the Bend Airport to the subject property
would not be allowed. Staff believes the applicant should specify their proposed method
of wastewater treatment.
12. Goal 12: Transportation
Oregon Statewide Planning Goal 12 seeks "To provide and
encourage a safe, convenient and economic transportation system."
RESPONSE: OAR 660-012 implements Oregon Statewide Planning Goal 12. Title 17
of the Deschutes County Zoning Ordinance also includes requirements for transportation
studies. As detailed above, the Planning Division's Senior Transportation Planner has
identified a few issues that must be addressed including:
PA -08-3, ZC-08-3, Gibson Airpark Page 10
1. 20 -year timeframe for the traffic study
2. Use of county standards found under DCC 17.16.115, and not City of Bend
standards
3. The study should be expanded to 2018 to comply with OAR 880-012-0060(1)(c).
As of the date of this staff report, the applicant has not revised the transportation study.
At this time, staff believes the applicant has not met their burden of proof regarding Goal
12.
13. Goal 13: Enerav Conservation
Oregon Statewide Planning Goal 13 seeks "To conserve energy."
RESPONSE: The location of the proposed zone change adjacent to the airport would
allow efficient use of land for airport purposes. The ability of the subject property to
utilize renewal energy and implement energy conservation techniques is no different
than what is available at the Bend Airport.
14. Goal 14: Urbanization
Oregon Statewide Planning Goal 14 seeks "To provide for orderly
and efficient transition from rural to urban use, to accommodate
urban population and urban employment inside urban growth
boundaries, to ensure efficient use of land, and to provide for livable
communities."
RESPONSE: The proposal would not affect an urban growth boundary (UGB), and
does not seek to establish a new UGB. Staff believes this Goal does not apply.
15. Goal 15: Willamette River Greenwav; Goal 16: Estuarine Resources
Goal 17: Coastal Shorelands; Goal 18: Beaches and Dunes; Goal 19:
Ocean Resources
RESPONSE: Staff believes these Goais are not applicable because the subject
property is not within the Willamette Greenway, and does not possess any estuarine
areas, coastal shorelands, beaches and dunes, or ocean resources.
B. Title 18, Zoning Ordinance
1. Section 18.136.020. Rezoning standards.
The applicant for a quasi-judicial rezoning must establish that the
public interest is best served by the rezoning of 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.
RESPONSE: Conformance with the Comprehensive Plan is addressed below.
PA -08-3, ZC-08-3, Gibson Airpark Page 11
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
RESPONSE: The applicant proposes to rezone the subject property from Exclusive
Fami Use to Airport Development (AD) and Aviation Support District. Chapter 18.76,
Airport Development Zone, governs uses for lands zoned AD. Section 18.76.010,
Purpose, provides the following:
The purpose of the Airport Development (AD) Zone is to allow for development
compatible with ongoing airport use consistent with the Deschutes County Year
2000 Comprehensive Plan and the 1994 Bend Airport Master Plan (as amended
by a 2002 supplement), while providing for public review of proposed
development likely to have significant impact on surrounding lands. The AD
Zone is composed of three separate zoning districts, each with its own .set of
allowed uses and distinct regulations, as further set forth in DCC 18.76.
In reviewing the 2002 amendment to the 1994 Master Plan (incorporated by reference
herein), staff notes that page 77 of the report discusses Drawing 1 — Airport Layout Plan,
and provides the following introductory statement,
The Airport layout Plan (ALP) presents the existing and ultimate airport layout
and depicts the improvements that are recommended to meet forecast aviation
demand.
Drawing 1 shows no existing or anticipated development on the Gibson Airpark
property4. Additionally, Drawing 6 of the 2002 Master Plan amendment, which depicts
the on -airport land use plan, does not designate any portion of the Gibson Airpark
property for airport -related zoning. Based on the above, staff believes that the proposed
plan amendment and zone change would not be consistent with the Master Plan and,
therefore, not consistent with the purpose of the Airport Development Zone.
In contrast to staffs position, the applicant argues that the drawings represent
recommendations and, therefore, the Gibson Airpark property, although not included in
the drawings, could be used as part of the Bend Airport. Specifically, the applicant
points to page 40 of the 1994 Master Plan which states,
The purpose of this chapter [Chapter 4: Airport Plans] is to describe and evaluate
significant airport development alternatives and then present recommended
airport plans through a series of drawings and supporting narrative.
Similarly, staff notes that page 76 of the 2002 Master Plan includes the following
language,
The purpose of this chapter [Chapter Six, Airport Layout Plans] is to describe in
narrative and graphic form, the recommended airport development contained in
the 20 -year master plan.
4 Drawing 4-6 of the 1994 Master Plan shows the western portion of tax lot 400 designated for
future aviation development.
PA -08-3, ZC-08-3, Gibson Airpark Page 12
The applicant also argues that where the text of an ordinance clearly demonstrates an
intent not to rezone a particular area, but an attached map shows the area as rezoned,
the text controls5. In this situation, the applicant believes the text of the Master Plan
indicating that the drawings represent recommendations, controls over the drawing that
does not include the Gibson Airpark property.
Although staff agrees that the applicant's interpretation of the above language could
mean that land outside of the current airport boundaries could be used for the airport,
staff believes a more likely interpretation of the above language is that identified uses
and zoning within the airport boundaries are subject to change. Staff recommends that
the hearings officer focus on this criterion in his/her review.
The applicant also cites to other evidence within the Master Plan which supports the
applicant's argument that it would be appropriate to rezone the Gibson Airpark property
to Airport Development. The applicant cites pages 12-14 of the Master Pian, and a
reference in the Master Plan to a section of the Transportation Element of the
Comprehensive Plan which states,
a) The Bend Municipal Airport will grow along with the rest of Deschutes
County, and the following additional policies shall apply to the properties
shown on the components of the airport overlay -zones within the area of
average Ldn 65 contour (substantial impact area):
1. Property within the average Ldn 65 contour (substantial impact
area) shall be considered committed for airport -related or
accessory commercial or industrial uses. At such time as an
exception to LCDC Goal 3 (Agricultural Lands) is taken, such
properties shall be available to be rezoned to A -D Airport
Development, provided public• need is demonstrated for the
exception, in accordance with LCDC Goal 2 (Land Use Planning)
and public need is demonstrated for the zone to be placed upon
the property. The Ldn 65 noise contour map, marked Exhibit A,
attached thereto and, by this reference, incorporated herein, is
adopted to designate those properties within the Ldn 65 noise
contour.
The applicant contends that the majority of the subject property is within the Ldn 65
contour, as shown in Figure 4 of Draft Report Accompanying the Bend Municipal Airport
Urban Renewal Plan dated June 2008, and incorporated herein by reference.
Therefore, the subject property is considered committed for airport -related uses.
Although staff agrees that Figure 4 indicates the majority of the subject property is within
the Ldn 65 contour, staff notes that the above -referenced language no longer exists in
the Transportation Element of the Comprehensive Plan. When brought to the
applicant's attention, the applicant argued that since the Master Plan is the guiding
document for the Bend Airport, the "considered committed" language still applies. If the
above language still applies, staff notes the applicant would be required to demonstrate
there is a public need.
C. That changing the zoning will presently serve the public
health, safety and welfare considering the following factors:
5 Flying J. Inc. v. Marion County, 49 Or LUBA 28 (2005)
PA -08-3, ZC-08-3, Gibson Airpark Page 13
1. The availability and efficiency of providing necessary
public services and facilities.
RESPONSE: As addressed in previous findings, staff is concerned that transportation
facilities and wastewater treatment may not be adequate for the proposal.
2. The impacts on surrounding land use will be
consistent with the specific goals and policies
contained within the Comprehensive Plan.
RESPONSE: Section 23.88.020 includes the following goal:
To preserve and maintain agricultural land.
As discussed in a previous finding, staff is concerned with how potential airport -related
uses on the portion of tax lot 403 to the east and south of Nelson Road could impact
existing farm use and agricultural land on tax lots 500 and 700. Additionally, staff is
concerned that at a minimum, the above -referenced portion of tax lot 403 was correctly
inventoried as agricultural land, and would be impacted by the proposed rezone.
D. 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.
RESPONSE: The applicant argues that a mistake was made in the zoning of the
property and that there has been a change in circumstances since the property was
zoned. As discussed in previous findings, the applicant argues that the soils
investigation shows that the property does not meet the definition of agricultural land
and, therefore, the property zoned EFU incorrectly. Staff has expressed concerns
regarding this argument.
Regarding changes in circumstances, the applicant provides two items of consideration.
First, the applicant states that since the property was zoned, the City of Bend acquired a
portion of tax lot 400 that essentially bisects that tax lot. This configuration, the applicant
argues, would make the application of irrigation water impractical. Secondly, the
applicant argues that the Bend Airport has changed since it was originally zoned, with
one consequence being the need for additional land zoned for airport use. While staff
agrees that the current configuration of the subject property would make the application
of irrigation water difficult, staff notes that the comment letter from the Bend Airport
Manager does not indicate a need for additional airport land.
C. Title 22 of the Deschutes County Zoning Ordinance
1. Section 22.28.030, Land Use Action Decisions
Decision on plan amendments and zone changes.
B. In considering all quasi-judicial zone changes and those
quasi-judicial plan amendments on which the Hearings
Officer has authority to make a decision, the Board of County
Commissioners shall, in the absence of an appeal or review
PA -08-3, ZC-0B-3, Gibson Airpark Page 14
initiated by the Board, adopt the Hearings Officer's decision.
No argument or further testimony will be taken by the Board.
RESPONSE: A public hearing with the County Hearings Officer is scheduled for
October 21, 2008. As necessary, a meeting with the Board would be scheduled
subsequent to the Hearings Officer decision.
D. Title 23, Deschutes County Comprehensive Plan
1. Section 23.08.010. Introduction.
Recent years have witnessed dramatic growth and change in
Deschutes County. A rapidly increasing population causes ever
greater pressures on the land as well as the economic,
governmental and social structures of the area. These pressures
require many adjustments. Unfortunately, in the past, many of these
public decisions on land use and related matters were made without
adequate consideration of alternatives or consequences. To
provide part of the answer, the comprehensive planning process
has been developed. This process provides for the gathering of
information, the prudent review of alternatives and the final
development of reasonable policies. The local need for planning is
also spurred by the requirements of the people of Oregon, as
manifested through the Legislature and the Land Conservation and
Development Commission, which require all local jurisdictions to
prepare adequate plans and planning programs.
RESPONSE: Deschutes County Code Section 18.136.020(A) requires the proposed
zone change to comply with the Comprehensive Plan's introductory statement and
goals. In accordance with this statement, the Deschutes County Code includes a
process requiring the applicant for a proposed quasi-judicial rezone to provide sufficient
information and evidence to allow a hearings body to make an informed decision and
determine if the requested zone change is appropriate not only to the site, but also to the
surrounding environment. Additionally, if approved, the new zone would include
approval criteria ensuring the establishment of new uses appropriate to the zone.
2. Section 23.64.010. Transportation System Plan: Section 26.64.020.
Coordination and implementation of the Transportation System Plan.
[An excerpt from 23.64.010]
The purpose of the Transportation System Plan is to guide the
development of a safe, convenient and efficient transportation
system that promotes economic prosperity and livability for all
County residents.
On excerpt from 23.64.020]
1. Goals.
a. Achieve an efficient, safe, convenient and
economically viable transportation and
PA -08-3, ZC-08-3, Gibson Airpark . Page 15
communication system. This system includes roads,
rail lines, public transit, air, pipeline, pedestrian and
bicycle facilities. The Deschutes County
transportation system shall be designed to serve the
existing and projected needs of the unincorporated
communities and rural areas within the County. The
system shall provide connections between different
modes of transportation to reduce reliance on the
single -occupancy vehicle.
RESPONSE: The applicant argues that the proposed plan amendment and zone
change would promote efficient air transit by adding Airport Development -zoned land
next to the Bend Airport. This would then allow the establishment of airport -related uses
such as hangars, tie -downs, runways, and service roads. Staff agrees that the
applicant's proposal would provide convenient air transit if the Gibson Airpark property
were either acquired by the City of Bend and consolidated with the Bend Airport, or the
applicant received FAA and City of Bend approval to conduct through -the -fence
operations. Otherwise, if approved, the subject property would allow airport -related uses
but would not have access to an airport.
3. Section 23.64.200. Airports.
[An excerpt from this section]
Unlike the Redmond Airport, the Bend Municipal Airport is located
outside the Bend City limits and UGB, therefore the County has land
use jurisdiction over it. in order to guide airport land uses, the
County adopted and utilizes the 1994 Bend Municipal Airport Master
Plan, as amended in 2002 the "Supplement to 1994 Airport Master
Plan" incorporated by reference herein. This is the guiding
document for airport planning and development. This document
incorporates a range of facility improvements for the Bend
Municipal Airport over the 20 -year planning horizon (2021), including
short, intermediate, and long-term projects to improve safety and
function at the airport.
RESPONSE: Via Ordinance No. 2003-035, the Board of County Commissioners
adopted the 1994 Bend Municipal Airport Master Plan (Master Plan), as amended in
2002 (included herein by reference). The amended Master Plan is now the guiding
document for the Bend Airport.
The applicant argues that the Master Plan, "...'recommendations' about how to use
speck land should not be taken as a literal binding requirement as to how specific land
should be developed, per the County's own Comprehensive Plan under 23.08.020."
The applicant cites to the following specific part of 23.08.020,
...the purpose of the Comprehensive Plan for Deschutes County is not to provide
site-specific identification of the appropriate land uses which may take place on a
particular piece of land, but rather it is to consider the .significant factors which
affect or are affected by development in the county and provide a general guide
PA -083, ZC-08-3, Gibson Airpark Page 16
to the various decisions which must be made to promote the greatest efficiency
and equity possible, while managing the continuing growth and change of the
area.
Although staff agrees that the Comprehensive Plan is generally not a site-specific
document, the Comprehensive Plan specifically references the Master Plan as the
guiding document for the Bend Airport and staff argues that the Master Plan is site
specific. By their nature, master plans are specific to a particular site and provide
guidance and standards for development on that site. Therefore, staff believes
conformance with the Master Plan should be required.
As noted in a previous finding, Drawing 1 of the 2002 Master Plan Update illustrates the
existing and ultimate airport layout. Although both the text describing Drawing 1 (pages
77-78) and Drawing 1 indicate anticipated airport growth and development on the west
and east sides of the airport, staff can find no evidence of anticipated growth to the south
of the airport on the Gibson Airpark property. As a result, staff believes the applicant's
proposal is not consistent with the Master Plan and, therefore, not consistent with the
Comprehensive Plan.
Goal. Protect the function and economic viability of the
existing public -use airports, while ensuring public safety and
compatibility between the airport uses and surrounding land
uses for public use airports and for private airports with three
or more based aircraft.
2. Policies.
a. Deschutes County shall protect public -use airports
through the development of airport land use
regulations. Efforts shall be made to regulate the land
uses in designated areas surrounding the Redmond,
Bend, Sunriver and Sisters (Eagle Air) airports based
upon adopted airport master plans or evidence of each
airports specific level of risk and usage. The purpose
of these regulations shall be to prevent the installation
of airspace obstructions, additional airport hazards,
and ensure the safety of the public and guide
compatible land use. For the safety of those on the
ground, only limited uses shall be allowed in specific
noise impacted and crash hazard areas that have been
identified for each specific airport.
b. Deschutes County shall:
2. Cooperate with the cities of Bend, Redmond
and Sisters in establishing uniform zoning
standards, which will prevent the development
of hazardous structures and incompatible land
uses around airports;
4. Through adoption of appropriate zoning
restrictions, allow land uses around public -use
airports that will not be adversely affected by
PA -08-3, ZC-08-3, Gibson Airpark Page 17
noise and safety problems and will be
compatible with the airports and their
operations;
RESPONSE: With regard to the function and economic viability of the Bend Airport, the
applicant references two items indicating a need for aircraft hangar space at the Bend
Airport and, therefore, supporting the proposed plan amendment and zone change,
First, the applicant cites page 22 of the 1994 Master Plan Update which states, "...the
hangars are fully occupied and there is a waiting list of aircraft owners desiring hangar
space." Second, the applicant notes that the recent application by the City of Bend to
establish a Bend Municipal Airport Urban Renewal Plan included much of the subject
property in the urban renewal areas. Staff notes that the comment letter from the Bend
Airport Manager, Sue Palmeri, does not indicate a present need to acquire this property
for future Bend Airport development.
With regard to incompatible uses, the applicant notes that residential uses exist on the
subject property that are not compatible with the airport, and argues that the proposed
zone change would ensure compatible uses in the future by limiting development on the
subject property to airport -related uses. While staff agrees that the proposed rezone
could limit new uses on the subject property to those that are compatible with the airport,
the existing residential uses would become lawfully established nonconforming uses that
could be allowed to remain without assurance from the applicant that these residential
uses would be removed prior to zone change approval.
13. Discourage future development of private
landing fields when they are in proximity to one
another, near other public airports and potential
airspace conflicts have been determined to
exist by the Federal Aviation administration
(FAA) or ODOT Aeronautics.
RESPONSE: The applicant notes that the 2002 Master Plan Update makes several
references to the growing population of Deschutes County and the growing demand for
aircraft hangars at the airport. Based on this information, the applicant argues that a
failure to recognize this demand, which would be somewhat alleviated by the proposal,
may lead to development of private landing fields in proximity to the Bend or Redmond
airports.
Although staff agrees that the Master Plan identifies a growing demand for aircraft
hangar space, staff notes that although this demand has been existing since before
2002, there has been a lack of applications for private landing .fields which would support
the applicant's argument. Also, as noted previously, the comment letter from the Bend
Airport Manager did not indicate a need to acquire this property to alleviate demand for
airport development.
6 A copy of the proposed Bend Municipal Airport Urban Renewal Plan was not included in the
application materials, therefore staff was unable to determine if the Gibson Airpark property was
included in the Plan.
PA -08-3, ZC-0B-3, Gibson Airpark Page 18
IV. CONCLUSION AND RECOMMENDATION:
Based upon the findings noted above, staff does not believe the applicant has met their
burden of proof with regard to Goal 3, Goal 12, the Deschutes County Comprehensive
Plan, the Airport Development Zone, and the 1994 Bend Municipal Airport Master Plan
(as amended in 2002). Staff recommends that the proposed plan amendment and zone
change be denied.
Dated this 14th day of October, 2008
Mailed this 14th day of October, 2008
AJR/sir
PA -08-3, ZC-08-3, Gibson Airpark Page 19
iO-21-08
1. co rA_NA-°,A..c.,2_ +ID c- 16 `'z` .
Commissioner Unger asked about deliverables. Ms. Johnson replied that there
are reporting requirements and danger assessment training. Saving Grace will
be asking for .5 FTE to handle the additional cases as well.
BANEY: Move approval.
UNGER: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
LUKE: Chair votes yes.
4. Before the Board was Continuation of a Public Hearing on Files No. PA -
083 and ZC-083, on an Appeal of the Hearings Officer's Decision
regarding a Plan Amendment/Zone Change on Agricultural EFU to
Airport Development (Aviation Support District - Bend).
This hearing was continued from February 23 and August 3, 2009.
Anthony Raguine said the applicant has asked for another continuance, to the
spring of 2011. Gary Judd, the Airport Manager, said that both City and
County planning staff have provided comments to him and to their engineering
firm. In April they will begin work again on the issue.
Commissioner Baney stated that she feels a lot of things may change before that
time. She wants to grant continuances but the playing field may be very
different. Perhaps it is time to not continue it and start fresh with a new
application. Mr. Raguine said that it depends on the update. The current master
plan said there is sufficient land for their uses at this time. If the study changes
and more land is felt to be appropriate, this is advantageous to the applicant. It
is his guess that the plan will identify additional lands needs. The other issue
from the Hearings Officer is that there was not a change in circumstances, but if
more land is needed, that changes things as well.
The hearing was not de novo, so more information could be brought it.
Laurie Craghead said it could be continued and at that time a determination can
be made as to whether it has changed enough to require them to start over. It
could be a modification of application, which does not start from nothing.
Commissioner Unger added that there could be issues with reconsideration of a
previous application and more costs involved.
Minutes of Board of Commissioners' Business Meeting Wednesday, February 10, 2010
Page 3 of 8 Pages
Commissioner Baney said she is concerned that there is only a cost for the
initial application fee. Commissioner Luke said that there was a fee for having
it come before the Board, but the Board has never heard it yet.
Mr. Raguine said the Board would have to hear at this time and deny it, at
which time the applicant would get a refund of part of the fee. A modification
of application is the logical way to proceed.
Commissioner Unger stated that he feels as the new master plan moves forward,
this application might fit in nicely with the changes in the future. He favors
continuing it to the first Wednesday in May.
Will VanVactor, an attorney representing Gibson Airpark LLC, said that it
appears that if the plan is amended to increase the amount of land included for
future development, it may include the subject property. The main issue is
whether it will be included in the master plan, but it appears straightforward.
LUKE: Move the hearing be continued until Wednesday, July 13, 2011.
UNGER: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
LUKE: Chair votes yes.
BANEY: Move approval of the Consent Agenda.
UNGER: Second.
VOTE: BANEY: Yes.
UNGER: Yes.
LUKE: Chair votes yes.
Consent Agenda Items
5. Signature of Document No. 2010-114, a Renewal of the Employee Participation
Agreement with Central Oregon Intergovernmental Council regarding
Employee Health Benefits
6. Signature of a Letter Reappointing David Engeman to the Bend Cascade View
Estates Special Road District Board, through December 31, 2012
Minutes of Board of Commissioners' Business Meeting Wednesday, February 10, 2010
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DECISION OF THE DESCHUTES COUNTY HEARINGS
RLE NUMBER: PA -08-3, ZC-08-3
HEARING HELD: December 16, 2008
LOCATION:
The property is identified on Deschutes County Assessor map 17-
13-20, as tax lots 400 and 403. Tax lot 400 has an assigned
address of 22525 Nelson Road.
APPLICANT/
OWNER: Gibson Airpark, LLC.
1345 NW Wall Street, Suite 100
Bend, OR 97701
REQUEST: The applicant is requesting an amendment to the Deschutes
County Comprehensive Plan Map to change the map designation
of the subject property from Agriculture to Airport Development.
The applicant is also requesting a zone change for the subject
property from Exclusive Farm Use to Airport Development
(Aviation Support District). The subject property is located along
the southem border of the Bend Municipal Airport.
STAFF CONTACT: Anthony Raguine, Senior Planner
RECORD CLOSED: December 16, 2008
DECISION ISSUED: January 20, 2009
L APPLICABLE STANDARDS 8 CRITERIA:
A. Statewide Planning Goals and Oregon Administrative Rules (OAR) Chapter 660
1. Oregon Statewide Planning Goal 1, 2, 3, 4, and 12
2. Other Applicable Statewide Planning Goals as described below.
3. OAR Chapter 660
a. Division 4, interpretation of Goal 2 Exception Process
b. Division 11, Public Facilities Planning
c. Division 12, Transportation Planning
d. Division 13, Airport Planning
B. Deschutes County Comprehensive Plan
1. Chapter 23.64, Transportation System Plan
a. Section 23.64.020 Coordination and implementation
b. Section 23.64.040 Access Management
c. Section 23.64.200. Airports
2. Chapter 23.120, Goal Exception Statement
a. Section 23.210.070. Bend Municipal Airport Exceptions Statement
C. Deschutes County Subdivision Ordinance
Section 17.17.115 Traffic Impact Studies
D. Deschutes County Zoning Ordinance
1. Chapter 18.136, Amendments
a. Section 18.136.020. Rezoning standards.
E. Deschutes County Development Procedures Ordinance
1. Chapter 22.20, Review of Land Use Action Applications
a. Section 22.20.030. Final action in land use actions.
11. FINDINGS OF FACT:
A. Existing Zoning and Comprehensive Plan Designations: The subject property is
currently zoned Exclusive Farm Use (EFU) and has a Comprehensive Plan map
designation of Agriculture.
B. Location: The subject property is identified on Deschutes County Assessor map
17-13-20, as tax lots 400 and 403. Tax lot 400 has an assigned address of
22525 Nelson Road.
C. Site Description: The subject property is relatively flat, includes two tax Tots (400
and 403), and totals 45.1 acres. Tax lot 400 is roughly U-shaped, includes
approximately 22.3 acres, and is currently developed with two dwellings (1970
and 1975). A parcel owned by the City of Bend is located within the center of the
U, and is an extension of the Bend Municipal Airport property. Tax lot 400 is
bounded by the Bend Municipal Airport to the north, Nelson Road and tax lot 403
to the east. Nelson Road also borders tax lot 400 to the south. Powell Butte
Highway forms the westem border of Tax lot 400. Tax lot 403 includes
approximately 22.8 acres, is undeveloped, and is bounded by tax lot 400 to the
north and west, tax lot 700 to the east, and tax lot 500 to the south. It is bisected
from northeast to southwest by Nelson Road.
D. Surrounding Uses: The subject property is bounded by the Bend Municipal
Airport to the north, which is designated Airport Development, and zoned for a
variety of airport uses consistent with the Comprehensive Plan designation. The
Bend Municipal Airport was established in 1942, and was used for pilot training
during World War II. During the 1950s and 60s, the airport facilities were
converted to a general aviation airport.
The first Bend Airport Master Plan was adopted in 1979. It was replaced by the
1994 Airport Master Plan. In 1999, the City of Bend initiated a comprehensive
review of the airport facilities, which culminated in 2002 amendments to the 1994
plan. The county adopted the Bend Airport Master Plan amendments in 2003
(Ordinance No. 2003-036.) The plan proposes to relocate the main north -south
runway, and extend it an additional 300 feet to the north and 200 feet to the
south. To meet applicable FAA standards, the southern runway extension
required the relocation of a segment of Nelson Road, which has been
completed.' The plan also anticipated that existing supporting facilities located on
the airport property were adequate to address needs for the near term.
' It is the relocation to accommodate the extended runway that accounts for the unusual
configuration of Nelson Road through the site.
PA -08-3, ZC-08-3, Gibson Airpark Page 2
In June 2008, Deschutes County drafted an Urban Renewal Pian for the Bend
Municipal Airport. In the draft, the county concluded that the 2002 updates did
not adequately anticipate demand for the airport and airport related services.
The plan. supported the establishment of an urban renewal district that
encompasses the airport, and some surrounding property, including the subject
property. The urban renewal plan proposes substantial improvements to the
airport, and new, airport -related uses on the Gibson Alrpark, LLC property.2
Rural residential and farm uses are located to the east, south, and west.
Property to the east, south and west are zoned EFU and Multiple Use
Agricultural (MUA).
E. Proposal: The applicant is requesting an amendment to the Deschutes County
Comprehensive Plan Map to change the map designation of the subject property
from Agriculture to Airport Development. The applicant is also requesting a zone
change for the subject property from Exclusive Farm Use to Airport Development
(Aviation Support District) to complement uses at the Bend Municipal Airport.
F. Agency Comments: The Planning Division mailed notice to several public
agencies. The comments are included in the October 8, 2008 staff report and
are not repeated here. To the extent the comments pertain to relevant approval
criteria, they are addressed in the findings, below.
H. Public Notice and Comments: The Planning Division mailed notice of this
application to alt property owners within 750 feet of the subject property. No
comments were received. Only the applicant's representatives and staff
appeared at the December 16, 2008 hearing.
Ill. FINDINGS OF FACT AND CONCLUSIONS OF LAW:
A. Statewide Planning Goals
1. Goal 1: Citizen Involvement
Oregon Statewide Planning Goal 1 seeks "To develop a citizen
Involvement program that Insures the opportunity for citizens to be
involved In all phases of the planning process."
FINDING: As part of the plan amendment and zone change process, public notice was
provided to affected agencies and surrounding area property owners, consistent with
state law and the county's acknowledged public notice procedures. Additionally, the
county will hold public hearings before a hearings officer and before the County
Commissioners. The procedures used to evaluate the application are adequate to
ensure that citizens have an opportunity to provide meaningful input. Therefore, the
process is consistent with Goal 1,
2 There is no evidence that the county has in fact adopted an ordinance declaring the necessity of
an urban renewal district, and adopting a plan to implement the proposed improvements. Further,
the draft acknowledges that use of the subject property for airport uses is constrained by the EFU
zoning of the property.
PA -08-3, 2C-08-3, Gibson Airpark Page 3
2. Goal 2: Land Use Planning
Oregon Statewide Planning Goal 2 seeks "To establish a land use
planning process and policy framework as a basis for all decision
and actions related to use of land and to assure an adequate factual
base for such decisions and actions."
FINDING: Goal 2 has three main components: (1) establishment of a planning process;
(2) coordination with affected entities; and (3) reliance on an adequate factual base that
has been incorporated into the local legislation. In accordance with Goal 2, the applicant
submitted an application for the proposed amendment and rezone. In addition to the
burden of proof submitted with the application, a supplemental burden of proof was
received on October 6, 2008 to address concerns raised by staff detailed in a letter
mailed to the applicant on September 23, 2008. Throughout the burden of proof, the
applicant relies on its own need analysis and supporting testimony from the director of a
local economic development agency to justify the need for the proposed amendments.
The evidence does not support a finding that the proposal is consistent with the Bend
Airport Master Plan. The Airport Plan indicates that there is sufficient land available
within the airport boundaries to accommodate needed accessory uses throughout the
2002-2021 planning period. The applicant must first apply for, and obtain approval of the
amendment of the Airport Master Plan in order to justify the plan amendment and zone
change contemplated here. 1000 Friends of Oregon v. City of Dundee, 203 Or 207, 215,
124 P3d 1249 (2005)(the "adequate factual base component of Goal 2 is to make the
planning process and planning documents the basis for all decisions and actions.)
With respect to the other factors in Goal 2, notice of the proposed amendments was
provided to affected public agencies, including the City of Bend, the State Aviation
Division, the Oregon Department of Transportation, and the Federal Aviation
Administration. Most of the entities have responded with comments that have been
considered by the hearings officer and will be considered by the Board of County
Commissioners.
Finally, the county applied the administrative rules that implement Goal 2 in the review of
this application. Findings pertaining to compliance with OAR Chapter 660, division 4 are
set out below.
Having concluded that the proposal is inconsistent with the Bend Municipal Airport
Master Plan, and thus inconsistent with Goal 2 requirements, the hearings officer cannot
recommend approval at this time. However, in the event the Board of County
Commissioners reaches a different conclusion, the hearings officer adopts findings with
respect to the other applicable criteria.
3. Goal 3: Agricultural Lands
Oregon Statewide Planning Goal 3 seeks 'To preserve and maintain
agricultural lands."
FINDING: The subject property is currently zoned EFU and has been designated
agricultural on the Deschutes County Comprehensive Plan Map. Goal 3 provides a
PA -08-3, ZC-08-3, Gibson Airpark Page 4
definition of agricultural land, which is detailed in the implementing administrative rules
under OAR 660-033-020 as follows:
(1)(a) "Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources Conservation Service
(NRCS) as predominantly Class l -IV soils in Western Oregon and 1-V1 soils in
Eastern Oregon;
(8) Land in other soil classes that is suitable for farm use as defined in ORS
215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic
conditions; existing and future availability of water for farm irrigation purposes;
existing land use patterns; technological and energy inputs required; and
accepted fanning practices; and
(C) Land that is necessary to permit farm practices to be undertaken on adjacent
or nearby agricultural lands.
(b) Land in capability classes other than 1-1V/1-Vl that is adjacent to or
intermingled with lands in capability classes 1-1V/1-Vl within a farm unit, shall be
inventoried as agricultural lands even though this land may not be cropped or
grazed;
OAR 660-033-0020(11(a)
1. OAR 660-033-0020(1)(a)(A)
The subbect property is located in "Eastern Oregon," as this term is defined in OAR 660-
033-020'. Based on general soil classifications established by the NRCS, the site is
predominately comprised of Descamp Loamy Sand and Gosney-Rock Outcrop-
Deskamp soils. Descamp Loamy Sand is classified as a "prime" agricultural soil if
irrigated, with a Class III soil designation. If it is not irrigated, it falls within the Class VI
soils classification. The Gosney-Rock Outcrop-Descamp Complex soils includes 50
percent Class VII soils, 25 percent Class VIII soils, and 20 percent Descamp Loamy
Sand_ Using the NRCS soils classification, approximately one-half of the site includes
Class VI or better soils. That general assessment resulted in the initial conclusion that
the property fell within the definition of °agricultural rand," and the EFU zoning
designation was applied to protect the site for agricultural uses.
In conjunction with these applications, the applicant commissioned a more detailed soil
study, to verify the soil classifications. According to Soil investigation Report: Land
Capability Classification Determination for Agricultural Land (May 22, 2008), prepared by
Roger Bonne a Certified Professional Soil Classifier (#24918):
1. Approximately 17 percent, or 4.5 acres, of Class III (irrigated) and VI
(nonirrigated) is found on tax lot 400. The remaining 22.3 acres, or 83 percent, is
appropriately classified as Class VIINIII;
2. Tax lot 403 is approximately 13 percent, or 3.4 acres, of Class 1H (irrigated) and
VI (nonirrigated), and 87 percent, or 22.8 acres, of Class VIIMII.
S (5) "Eastern Oregon" means that portion of the state lying east of a line beginning *the
intersection of the northern boundary of the State of Oregon and the western boundary of Wasco
County, then south along the western boundaries of the Counties of Wasco, Jefferson, Deschutes
and Klamath to the southern boundary of the State of Oregon.
PA -0B-3, ZC-08-3, Gibson Airpark Page 5
Although the subject property has approximately 28.59 acres of water rights, those water
rights apply to approximately 15 percent of the Descamp Loamy Sand soils. The
remaining water rights are appurtenant to Class VIWIII soils. The Class VIIMII soil
classifications do not change even if they are irrigated. This report provides substantial
evidence to support a conclusion that the subject property is not predominately
comprised of Class I -VI soils and, therefore, does not meet the definition of agricultural
land set out in OAR 660-033-020(1)(a)(A).
2. OAR 660-033-0020(1)(a)(B)
As noted above, approximately 15 percent of the subject property contains Class III soils
if irrigated, and of that soil type, only 15 percent actually has irrigation water rights.
Although the subject property includes 28.59 acres of water rights, there is no evidence
that the property has ever been irrigated. Given the irregular shape of tax lot 400, and
the fact that Nelson Road bisects tax lot 403, staff believes it would be difficult to apply
irrigation water to the subject property. Further, there is little or no evidence that shows
that production on the Class VIINIII soils will improve as a result of irrigation. Therefore,
the hearings officer concludes that only a small portion of the soils on the property are
suitable for the cultivation of crops.
With respect to the capability of the site for beef cattle production, the calculations
regarding potential productivity for livestock forage are detailed below. Estimates on the
value of beef production are based on the following assumptions, which have been
derived through consultation with OSU Extension Service:
•
•
•
•
One AUM is the equivalent to the forage required for a 1000 Ib. cow and calf to
graze for 30 days (900 pounds forage).
On good quality forage, an animal unit will gain 2 pounds per day.
Two animal units will eat as much in one month as one animal unit will eat in two
months.
Forage production on dry land is not continuous; once the forage is eaten, it
generally will not grow back until the following spring.
An average market price for beef is $.80 per pound.
In addition to the assumptions regarding beef production, three acres are deducted from
total acreage to account for the existing residential uses on the site.
Based on these assumptions, the value of beef production on the property can be
calculated, using the following formula:
30 days X 2#/day/acre = 24.0 lbs. Beef/acre
(2.5 acres per AUM)
24.0 lbs. Beef/acre x 45.1 acres x $0.80 /Ib. = $865.92
Thus, the total gross beef production potential for the subject property would be
approximately $865.92 annually. This figure represents gross income and does not
deduct the costs of land acquisition, or farm operating costs such as fencing costs, water
expenses, land preparation, calves, veterinary costs, or any other costs of production.
After deducting those costs, it is clear that the site is generally unsuitable for beef cattle
PA -08-3, ZC-08-3, Gibson Airpark Page 6
production. See Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007) (the
suitability standard must consider whether the property is suitable for farm uses, as
defined in ORS 215.203(2)(a), which includes a demonstration that farm use of the
property is likely to generate a profit in money.)
3. OAR 660-033-0020(1)(A)(c)
The subject property could potentially be combined with other farm uses in the area,
including existing livestock grazing operations. The portion of tax lot 403 located to the
east and south of Nelson Road abuts two properties that appear to be currently
employed in farm use — tax lot 500 to the south and tax lot 700 to the east. Both parcels
are irrigated, and both include livestock grazing. The applicant's representatives
concede that they have not considered agricultural activities on the portion of the site to
the east and south of Nelson Road, but argue that the use of those portions of the site
for farm use do not mean that the majority of the site, which lies north and west of
Nelson Road, can be integrated into adjoining farm operations.
Staff concurs with the applicant's argument that it would be difficult to combine all of the
subject property (tax lots 400 and 403) with tax lot 500 or 700, with a publicly dedicated
road (Nelson Road) running between the properties, and the city -owned tax lot 401
essentially bisecting tax lot 400. However, staff asserts that the portion of tax lot 403
lying east and south of Nelson Road that is abutting tax lots 500 and 700 could be
combined for farm use.
This standard addresses the feasibility of operating the entire site with adjacent or
nearby agricultural operations. The evidence shows that a portion of the site may be sold
or leased to augment agricultural operations on abutting property. However, there is no
evidence that nearby farm operators have expressed an interest in the south and
eastem portion of tax lot 403, or that it is feasible to integrate the entirety of the site into
nearby operations. Therefore, the hearings officer concludes that the preponderance of
the evidence supports a finding that the site is not suitable for agricultural uses, even if
combined with other farm parcels.
Farm practices on adiacent or nearby aericultural lands
It would be difficult to combine all of the subject property with the livestock grazing on tax
lots 500 and 700 due to the presence of Nelson Road between the properties. However,
staff also notes that the portion of tax lot 403 Tying east and south of Nelson Road could
be combined with tax lot 500 or 700 for farm use. Staff expressed concerns that airport
uses on the south and eastem portions of tax lot 403 could negatively affect existing
farm practices on tax lot 500. The existing livestock grazing could be affected by the
noise associated with airport uses such as hangars and taxiways, which would be an
outright permitted uses In the proposed Aviation Support District. Despite these
concerns, staff acknowledged that no comments were received from adjoining property
owners in response to the notice of these applications, from which staff inferred that (1)
none of the nearby farm operators want to use all or a portion of the site as part of their
farm operations, and (2) that the operators were generally unconcerned about the
potential use of the site for airport related uses.
The question under this criterion is whether the property is necessary to permit
PA -08-3, ZC-08-3, Gibson Airpark Page 7
continued farm practices on tax lot 500.4 If it is, then it is properly included in the
category of "agricuttural lands." There is evidence that the site has not been put to
agricultural use, at least in recent memory, and there is no evidence that other farm
operators in the area have expressed a desire to incorporate all or a portion of the site
into their operations. Therefore, the property is not 'necessary" to continue farm
operations, which undermines the conclusion that the property contains "agricultural
lands."
OAR 660.033-0020(1)lb)
Under this standard, lower quality soils may nevertheless be agricultural land if they are
"adjacent to or intermingled with lands in capability classes I-IV/l-V1 within a farm unit.'
For the purposes of OAR 880-033-0020(1)(b), a `farm unit" is characterized by a
common agricultural program that includes the property under consideration. The
property does not need to be under common ownership, or necessarily used in exactly
the same way as other land within the farm unit For example, property that has been
grazed may be part of a farm unit where other better soils within the unit are cultivated
for hay to provide supplemental feed for the grazed animals. Riggs v. Douglas County,
167 Or App 1, 8, 1 P3d 1042 (2000) and Wetherell v. Douglas County, 50 Or LUBA 187
(2005), rev'd on other grounds, 342 Or 666, 160 P3d 614 (2007). Here, there is no
evidence that the poorer soils on the site has been farmed as part as a farm unit on the
site or in conjunction with farm operations on other parcels. Therefore, the hearings
officer concludes that the property does not contain agricultural lands under this
standard.
In sum, the evidence supports a finding that the site does not contain "agricultural land°
within the meaning of Goal 3 and OAR 660-033-0020(a). Consequently, an exception to
Goal 3 is not needed to redesignate the site as proposed.
4. Goal 4: Forest Lands
Oregon Statewide Planning Goal 4 seeks "To conserve forest lands
by..."
FINDING: Although the EFU zone permits commercial forest operations, it is not a zone
that is acknowledged to implement Goal 4. The site does is not forested, and none of the
soils on the site are suitable for the cultivation of trees. In addition, none of the property
in the vicinity is forested or is used in some way for forest operations. Therefore, the
property is not forest lands, as that term is defined in Goal 4.5
4 Staffs concerns regarding the impact of activities related to the Airport Development
designation may be relevant to the question of whether the proposed zoning Is appropriate for the
site: it is not relevant to the question of whether the property is needed to continue existing farm
operations on adjacent and nearby property.
5 Goal 4 defines "Forest lands' as "those lands acknowledged as forest lands as of [1 9921 Where
a plan Is not acknowledged or a plan amendment involving forest lands is proposed, forest land
shall include lands which are suitable for commercial forest uses including adjacent or nearby
lands which are necessary to permit forest operations or practices and other forested lands that
maintain soil, air, water and fish and wildlife resources."
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5. Goal 5: Open Spaces, Scenic and Historic Areas, and Natural Resources
Oregon Statewide Planning Goal 5 seeks "To protect natural
resources and conserve scenic and historic areas and open
spaces."
FINDING: Goal 5 resources include aggregate sites, scenic resources, riparian areas,
wetlands, wildlife areas, historic and cultural sites. Under Goal 5, counties are required
to inventory its resources to determine whether the listed resources should be protected
in a particular location. There are no identified Goal 5 resources on the site, and no
adopted Goal 5 programs to protect significant resources are affected by the proposal.
6. Goal 6: Air, Water and Land Resources Quality
Oregon Statewide Planning Goal 6 seeks "To maintain and improve
the quality of the air, water, and land resources of the state."
FINDING: The applicant is not proposing an exception to compliance with Goal 6.
Maintaining or improving the quality of the community's air, water and land resources
would be assured through enforcement of state and local regulations.
7. Goal 7: Areas Subject to Natural Disasters and Hazards
Oregon Statewide Planning Goal 7 seeks "To protect people and
property from natural disasters and hazards"
FINDING: There are no areas within the subject property that are subject to flooding or
landslide activity. The wildfire hazard for the site is the same as other areas with
junipers and native brush. Development of the site would reduce the potential for
wildfires by providing adequate water to meet the fire flow requirements for future airport
uses.
8. Goal 8: Recreational Needs
Oregon Statewide Planning Goal 8 seeks "To satisfy the recreational
needs of the citizens of the state and visitors and, where
appropriate, to provide for the siting of necessary recreational
facilities including destination resorts."
FINDING: Goal 8 promotes the development of recreation facilities, including
destination resorts. The site is not mapped as a destination resort site, and does not
contain any natural or developed recreational features. Therefore, Goal 8 is not
implicated by this proposal
9. Goal 9: Economic Development
Oregon Statewide Planning Goal 9 seeks "To provide adequate
opportunities throughout the state for a variety of economic
activities vital to the health, welfare, and prosperity of Oregon's
PA -08-3, ZC-08-3, Gibson Airpark Page 9
citizens."
FINDING: Assuming the subject property is incorporated into the Bend Municipal
Airport, the proposed plan amendment and zone change would allow the establishment
of uses authorized under the Airport Development Zone and Aviation Support District
The draft Urban Renewal District Plan asserts that additional land is needed to
accommodate ancillary airport businesses, and businesses that require close proximity
to air service. This evidence tends to support a finding that the proposed plan
amendment and zone change will further economic development within the county
consistent with Goal 9.
10. Goal 10: Housing
Oregon Statewide Planning Goal 10 seeks 'To provide for the
housing needs of citizens of the state."
FINDING: Goal 10 requires an inventory of existing and needed housing to
accommodate projected residential needs. Re -designation of the site for airport related
uses will have no impact on the county's housing supply. The existing EFU zoning is not
a residential zone, and is not appropriate for residential uses. Further, the proximity of
the site to the existing airport makes it generally unsuitable for residential use.
11. Goal 11: Public Facilities and Services
Oregon Statewide Planning Goal 11 seeks "To plan and develop a
timely, orderly and efficient arrangement of public facilities and
services to serve as a framework for urban and rural development "
FINDING: The public facilities and services described in this goal include: police
protection; sanitary facilities; storm drainage facilities; planning, zoning and subdivision
control; health services; recreation facilities and services; energy and communication
services; and community governmental services. In rural areas, public facilities and
services must be "suitable and appropriate" for rural needs. To ensure that rural lands
are not developed for urban uses, implementing administrative rules prohibit community
water districts that are intended to increase residential density on a site. In addition, the
rules prohibit the extension of sewer lines outside of urban growth boundaries.
The dwellings on the site are served by domestic wells and individual subsurface
sewage (septic) systems. Telephone service is extended to the area. The site is within
the jurisdiction of the Deschutes County Sheriffs Department. Other listed public
facilities and services are provided by the county on a county -wide basis. Given the
existing surrounding development, in particular the recent development at the airport
(reference SP -06-3 Aero Facilities (hangars)), adequate public facilities and services,
such as water, electric, and phone, could be accommodated.
The Bend Municipal Airport is connected to the City of Bend Wastewater Treatment
Plant. The applicant's burden of proof states that it would not be necessary to 'extend"
urban services such as sewer to rural lands because that service already exists. it is not
clear whether the applicant intends to extend sewer lines from the Bend Airport to the
subject property, or if the applicant intends to serve the property via an on-site septic
system. If the applicant seeks to extend the Bend Municipal Airport sewer line to serve
PA -08-3, ZC-08-3, Gibson Airpark Page 10
development on the subject property, the applicant will either have to demonstrate that
the extension is consistent with Goal 11, or obtain an exception to the goal pursuant to
OAR Chapter 660, division 4. Otherwise, the only sewage facilities that can be
developed to serve the site must be `rural," e.g., a septic system.
The hearings officer concludes that some airport related development will not require the
extension of a sewer line. Therefore, the proposed plan amendment and zone change
are not inconsistent with Goal 11. However, if the applicant proposes to extend sewer
services outside of the airport boundaries, the Airport Master Plan must be amended to
address that extension, and the applicant must obtain an exception to Goal 11.
12. Goal 12: Transportation
Oregon Statewide Planning Goal 12 seeks "To provide and
encourage a safe, convenient and economic transportation system."
FINDING:
Road Network
Goal 12 requires that the proposal be consistent with the local transportation facilities in
the area. OAR Chapter 660, division 12, the Transportation Planning Rule (TPR)
implements Goal 12 with respect to roads and bridges. The TPR requires that local
govemments adopt Transportation System Plans (TSPs) to guide transportation access
through the jurisdiction. TSPs must identify transportation facilities in the area, and
analyze whether the transportation system as a whole is adequate to accommodate
anticipated levels of traffic within the planning period. In 1994, Deschutes County
adopted its TSP and traffic impact study standards, codified at DCC 17.16.115, to
ensure that development is consistent with the capacity of the local transportation
system. In relevant part, DCC 16.115 requires that developments that are projected to
generate more than 200 daily trips or 20 peak hour trips are required to submit a traffic
impact study that analyzes the impact of the additional trips on the local road system. If
the impact significantly affects a transportation facility, as that term is defined in OAR
660-012-0060(2), the applicant must propose mitigation measures to minimize the
impact. Staff and the applicant concluded that the proposed amendments trigger the
threshold requirements for a traffic impact study. Tye Engineering and Surveying, Inc.
(Tye Engineering) prepared the applicant's April 2008 traffic impact study. Tye
Engineering also prepared two supplemental reports in response to concerns raised by
county staff (the November 2008 and December 2008 addenda.)
As noted above, the site has frontage along Nelson Road and Powell Butte Highway.
The traffic impact study identified two major intersections in the area, the Nelson
Road/Powell Butte Highway intersection and the Butler Market/Powell Butte Highway
intersection, that would be most affected by the proposal. The April 2008 traffic impact
study evaluated existing conditions, and then projected the impact of the proposal based
on full site build -out in 2014. The existing conditions analysis considered the number of
trips that are generated by a wholesale nursery operation, a use the applicant contends
is the most intensive allowed use in the EFU-TRB zone against the potential trip
generation for general Tight industrial uses, which the applicant asserts is the most
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intensive use allowed in the Airport Development zones The April 2008 traffic impact
study concluded that both intersections will require significant improvements to
accommodate anticipated traffic volumes through 2028, and that development on the
site if these applications are approved will accelerate the intersection failure.' In addition,
to allow for more efficient use of the southeast portion of tax lot 403, the applicant
proposed a second realignment of Nelson Road, The new realignment will construct a
road segment along the eastem and southern perimeter of tax lot 403. Once the new
segment is constructed, the existing segment will be abandoned. The traffic impact study
includes phased improvements to address the anticipated transportation Impacts.
The county's Senior Transportation Planner (planner) reviewed the applicant's traffic
impact study, and commented that the study was flawed in several respects. First, the
traffic impact study used 2008 through 2014 as the applicable planning period. The
planner stated that the appropriate planning period is established by DCC 17.16.115,
which requires that the 20 -year planning period begin at the date the application is
submitted, in this case, mid -2008 and carry forward to 2028. Second, the planner
objected to the use of City of Bend transportation standards, as the site and all
surrounding roads are under county jurisdiction.
The applicants November 2008 addendum remedied the planner's concerns regarding
the planning period and applicable standards. Applying the revised time period and
standards, Tye Engineering again concluded that the proposed mitigation would be
adequate to address county staff's concerns. In its December 2008 addendum, Tye
Engineering revised its trip generation estimates for build out under the Airport
Development zone designation, concluding that general aviation is clearly allowed, while
only a subset of general light industrial uses are permitted. Using the "general aviation'
category, the estimated trip generation is only 785 trips per day, less than the maximum
number of trips that can be expected from a wholesale nursery use
e According to Tye Engineering, none of the undisputed allowed uses in the EFU-TRB zone (e.g.,
farm use, propagation of forest products, replacement dwellings or rural fire service facilities) are
listed in Trip Generation, the Institute of Transportation Engineers' manual for estimating trips for
a variety of uses. However, Trip Generation does include trip generation studies for rural
residential uses, cemetery uses, landscaping nursery (garden centers), landscaping nursery
(wholesale) and private schools. The applicant concluded that of the listed uses, landscaping
nursery (wholesale) fell within the category that best describes trip generation from allowed farm
uses. According to the Trip Generation Manual, landscaping nurseries (wholesale) generate
1033 trips per day (on average), of which 24 trips occur during p.m. peak hour, and 44 occur
during a.m. peak hour.
With respect to activities allowed in the Airport Development zone, the estimated tip generation
for Tight industrial uses is 2370 trips per day, of which 333 occur in the p.m. peak hour and 313
occur within the a.m. peak hour. November 2008 addenda, 2.
7 Tye Engineering analyzed both level of service (LOS) and vehicle numberroad capacity (vic)
analysis for the intersections. Most local governments require a level of service analysis, and
ODOT requires a vic analysis. The parties agree that only the LOS standard applies to the
proposal.
8 DCC 18.78.030(D) provides that "farm uses" as that term is defined in DCC Title 18 are
permitted outright in aH Airport Districts. If that is the case, the applicant does not explain why
wholesale nursery uses should not be used as the comparative use for both districts.
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At the public hearing before the hearings officer, staff renewed their argument that the
traffic impact study is inadequate to demonstrate that the proposal is consistent with
applicable transportation policies and standards. Staff first objected to the use of
"wholesale nurseries" as a baseline EFU-TRB use by which the traffic impact of the
proposal is measured. Staff argued that wholesale nurseries are allowed in EFU zones
only if they are operated in conjunction with a nursery on the site. If, as the applicant
asserts, the site is not suitable for agricultural production, it is unlikely that a nursery
could be sited on the property. Staff recommended that the baseline analysis should
include only those trips that are related to existing use of the property, that is, residential
and limited agricultural use. The applicant responded that case law supports its
contention that wholesale nurseries, by themselves, are permitted farm uses.
The purpose of analyzing surface transportation impacts in conjunction with plan and
zoning amendments is to ensure that transportation facilities are adequate to
accommodate the highest trip generating use allowed in the zone. Here, the evidence
shows that regardless of the zoning of the property, the Butler Market/Powell Butte
intersection and the Nelson Road/Powell Butte intersection will fail by 2028. The
applicant demonstrated that some improvements to the Butler MarketlPowell Butte
intersection will be constructed in conjunction with another development approval, and
that no new intersection improvements are needed until proposed Phases II and 111 are
developed on the subject property. The applicant concedes that a new right -tum
deceleration lane at Powell Butte Road onto Nelson Road and an eastbound right tum
lane at Butler Market/Powell Butte will improve both intersections, until signalization or
roundabouts are warranted.
The dispute between staff and the applicant regarding the baseline trips and the
projected trips pertains to the extent of the applicant's contribution to the intersection
failures. The more trips that can be attributed to the proposed uses, the greater the
exactions that can be required to remedy the impact. The hearings office concludes that
the pertinent question under the TPR is whether the uses used for comparison are
allowed in the respective zones, not whether those uses will actually occur on the
property. See Griffiths v. City of Corvallis, 50 Or LUBA 588, 596 (2005)(unless a
development plan actually limits the types and intensity of uses on a site, it is not error to
consider uses "allowed" on the property rather than those uses "likely" to be developed.)
Further, there is case law on point that concludes that a wholesale nursery falls within
the category of Yarm us& in ORS 215.203(2)(a), and therefore is permitted outright in
the EFU-TRB zone. Lorenz v. Deschutes County, 45 Or LUBA 635, 642 (2003).
Accordingly, the hearings officer concludes that the applicant's traffic impact study is
adequate to assess the impact of the proposal on the local transportation system,
consistent with OAR 660-012-0060(2)(d).
However, that analysis does not mean that exactions may not be imposed based on the
impact of a particular proposal on the local transportation system. In fact, Fifth
Amendment takings case law presumes that the analysis will consider existing uses on
the property, and the effect the proposed uses will have on public infrastructure. Thus, it
is inappropriate to assume that a proposed development will generate the worst case"
scenario impact and exact transportation improvements that have no relation to actual
impact.
The hearings officer concludes that if the proposed rezoning is conditioned to require
that the Butter Market/Powell Butte intersection northbound left tum lane is constructed
PA -0B-3, ZC-0B-3, Gibson Airpark Page 13
prior to Phase 1 development on this site, that the proposal will be consistent with Goal
12, the TPR and county standards. Further, a condition of approval is warranted to
require improvements to the Butter Market/Powell Butte and Powell Butte/Nelson Road
intersections prior to or concurrent with Phase II development of the site. That way, the
adequacy of the local transportation system can be assured.®
Air Transportation
Airport development is regulated by OAR Chapter 660, division 13, the Airport Planning
Rule. This rule was adopted in 1999, and requires local governments to adopt plans to
protect airport development The rules require that the Airport Master Plan map the
boundaries of the airport, including existing and planned runways, areas needed for
existing and planned airport operations, and areas that are needed for existing and
planned airport uses that require a location on or adjacent to the airport property, are
compatible with existing and planned land uses surrounding the airport, and are
otherwise consistent with the applicable comprehensive plan for the jurisdiction. OAR
660-013-0040(1). As noted above, the City of Bend adopted the Bend Municipal Airport
Update to the 1994 Airport Master Plan. The 2002 Update was intended to guide airport
planning for the 2002 through 2021 planning period. The plan identifies areas owned by
the city, and allocates portions of the property for various air -service functions. The plan
does not identify any extra -territorial property that is needed or appropriate for airport
related development. In fact, the plan concludes that such additional land is not needed.
The applicant proposes to develop the subject property with airport related uses,
including additional hangars, storage and office facilities. The proposed use of this site
is not explicitly addressed in the Bend Municipal Airport Plan, and Susan L. Palmeri, the
Bend Municipal Airport Manager, expressed concerns that development of this site may
adversely affect its ability to satisfy FAA public use standards. The applicant responds
with evidence, including findings set out in Deschutes County Ordinance 2003-036, and
the draft Urban Renewal Plan that the subject property is appropriate for airport related
development. The applicant asserts that concerns regarding specific uses can be
addressed at the time a specific development proposal is submitted. Staff responds that
the concerns articulated by the FAA and Bend Municipal Airport should be
comprehensively addressed through amendments to the Bend Municipal Airport Plan
prior to rezoning the subject property for airport uses.
Both Statewide Planning Goal 2 and OAR 660-013-0030(2) require that local land use
regulations be 'coordinated" and be consistent with the State's Aviation System Plan
and acknowledged local TSPs. The Deschutes County TSP addresses airport planning
in DCC 23.64.200.10 DCC 23.64.200(1) provides that the purpose of its airport policies
is to 'protect the function and economic viability of the existing public use airports, while
ensuring public safety and compatibility between the airport uses and surrounding land
uses ; i i." DCC 23.64.200(2) sets out the airport related policies.
Neither of these proposed conditions specifies how those intersection improvements will be paid
for. It may be that a local improvement district must be formed, or the applicant will have to pay
for a majority of the improvements in order to meet its development timetable.
1° DCC 23.64.200 identifies the Airport Planning Rule as an applicable standard, but states that
the policies adopted by the county have not been amended to specifically address rule
provisions. Accordingly, the Airport Planning Rule applies directly to the proposal ORS
197.648(4).
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The proposed plan and zoning designations, and uses developed in accordance with
those designations are unlikely to include noise sensitive uses, or uses that will interfere
with air safety, as the uses themselves are intended to support or supplement airport
activities. Therefore, the hearings officer concludes that the proposal is not inconsistent
with most of the applicable Deschutes County Comprehensive Plan policies.
However, for the same reasons that the proposal is not consistent with the requirements
that the county's land use decisions be made from an °adequate factual base," the
hearings officer concludes that the proposal is inconsistent with DCC 23.64.200(2)(a)
and the Bend Municipal Airport Master Plan_ As noted above, the evidence that the
applicant relies on is not included in the plan, and in fact contradicts the plan's estimate
of land needed for airport related uses through 2021. Therefore, until the Bend Municipal
Airport Master Plan is amended to reflect a need for the subject property, the proposal is
not consistent with those plans.
With respect to the rules and policies regarding inter -agency coordination, the hearings
officer considered the testimony from the FAA and the Bend Municipal Airport Manager,
and concludes that the county has adequately coordinated the matter with those entities.
Both the FAA and the Airport Manager acknowledge that the county has jurisdiction over
the airport and its surroundings.
Summary
In sum, the hearings officer concludes that the proposal is generally consistent with Goal
12, the TPR and the Airport Planning Rule, but is not consistent with the Bend Municipal
Airport Master Plan.
13. Goal 13: Enemy Conservation
Oregon Statewide Planning Goal 13 seeks "To conserve energy."
FINDING: The location of the proposed zone change adjacent to the airport would
allow efficient use of land for airport purposes. The ability of the subject property to
utilize renewable energy and implement energy conservation techniques is no different
than what is available at the Bend Airport. The proposal is generally consistent with
Goal 13.
14. Goal 14: Urbanization
Oregon Statewide Planning Goal 14 seeks `To provide for orderly
and efficient transition from rural to urban use, to accommodate
urban population and urban employment inside urban growth
boundaries, to ensure efficient use of land, and to provide for livable
communities."
FINDING: The proposal involves the application of an airport development zone to rural
lands. The county's airport development zone has been acknowledged to be consistent
with Goal 14, and no urban uses are proposed for the site. Therefore, the proposal is
consistent with Goal 14.
15. Goal 15: Willamette River Greenwavi. Goal 16: Estuarine Resources;
Goal 17: Coastal Shorelands: Goal 18: Beaches and Dunes; Goal 19:
PA -08-3, ZC-08-3, Gibson Airpark Page 15
Ocean Resources
FINDING: These Goals are not applicable because the subject property is not within the
Willamette Greenway, and does not possess any estuarine areas, coastal shorelands,
beaches and dunes, or ocean resources.
B. Title 23, Deschutes County Comprehensive Plan
1. Section 23.08.010. Introduction.
Recent years have witnessed dramatic growth and change In
Deschutes County. A rapidly Increasing population causes ever
greater pressures on the land as well as the economic,
governmental and social structures of the area. These pressures
require many adjustments. Unfortunately, In the past, many of these
public decisions on land use and related matters were made without
adequate consideration of alternatives or consequences. To
provide part of the answer, the comprehensive planning process
has been developed. This process provides for the gathering of
information, the prudent review of alternatives and the final
development of reasonable policies. The local need for planning Is
also spurred by the requirements of the people of Oregon, as
manifested through the Legislature and the Land Conservation and
Development Commission, which require all local Jurisdictions to
prepare adequate plans and planning programs.
FINDING: DCC 18.136.020(A) requires the proposed zone change to comply with the
Comprehensive Plan's introductory statement and goals. In accordance with this
statement, the Deschutes County Code includes a process requiring the applicant for a
proposed quasi-judicial rezone to provide sufficient information and evidence to allow a
hearings body to make an informed decision and determine if the requested zone
change is appropriate not only for the site, but also for the surrounding environment
Additionally, if approved, the new zone would include approval criteria ensuring the
establishment of new uses appropriate to the zone.
2. Section 23.64.010. Transportation System Plan: Section 26.64.020.
Coordination and implementation of the Transportation System Plan.
n
The purpose of the Transportation System Plan is to guide the
development of a safe, convenient and efficient transportation
system that promotes economic prosperity and livability for all
County residents.
t. Goals.
a. Achieve an efficient, safe, convenient and econom-
ically viable transportation and communication
system. This system includes roads, rail lines, public
PA -08-3, ZC-08-3, Gibson Airpark Page 18
r
transit, air, pipeline, pedestrian and bicycle facilities.
The Deschutes County transportation system shall be
designed to serve the existing and projected needs of
the unincorporated communities and rural areas within
the County. The system shall provide connections
between different modes of transportation to reduce
reliance on the single -occupancy vehicle.
FINDING: The applicant asserts that the proposed plan amendment and zone change
would promote efficient air transit by adding Airport Development -zoned land next to the
Bend Airport This would then allow the establishment of airport -related uses such as
hangars, tie -downs, runways, and service roads.
Susan L. Palmeri, the Bend Municipal Airport Manager expressed concems that the
proposal would facilitate "through -the -fence' access to the runway by the owners of the
private airpark. According to Ms. Palmeri, such through -the -fence access is inconsistent
with FAA rules pertaining to public use airports. While stopping short of opposing the
application, Ms. Palmeri implied that approval of this proposal will undermine the city's
efforts to secure FAA funding for needed airport improvements. Staff agrees that the
applicant's proposal would provide convenient air transit if the Gibson Airpark property is
acquired by the City of Bend and consolidated with the Bend Airport or the applicant
receives FAA and City of Bend approval to conduct through -the -fence operations.
Otherwise, staff asserts, if approved, the subject property would allow airport -related
uses but would not have access to an airport, which results in an inefficient use of land.
The applicant responded to this testimony by asserting that Ms. Palmeri's concerns are
premature, as the specific uses of the subject property have not been finalized or
approved. The applicant notes that the FM has approved through -the -fence
agreements in the past, if certain criteria are satisfied, and there is nothing to show that
those criteria cannot be satisfied in this case.
The applicant's proposal does not address a fundamental flaw—it is not consistent with
the Bend Municipal Airport Master Plan, which the Deschutes County Comprehensive
Plan relies upon to ensure consistency with air transportation requirements of Goal 12.
Therefore, even though the proposal will not interfere with air service and airport safety
per se, it is not consistent with DCC 23.64.020.
3. Section 23.64.200. Airports.
f T]he Bend Municipal Airport is Located outside the Bend City limits
and UGB, therefore the County has land use jurisdiction over IL In
order to guide airport land uses, the County adopted and utilizes the
1994 Bend Municipal Airport Master Plan, as amended In 2002 the
"Supplement to 1994 Airport Master Plan" Incorporated by reference
herein. This Is the guiding document for airport planning and
development This document Incorporates a range of facility
Improvements for the Bend Municipal Airport over the 20 -year
planning horizon (2021), including short, Intermediate, and long-term
projects to Improve safety and function at the airport.
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FINDING: Ira Ordinance No. 2003-036, the Board of County Commissioners adopted
the 1994 Bend Municipal Airport Master Plan (Master Plan), as amended in 2002
(included herein by reference). The amended Master Plan is now the guiding document
for the Bend Airport.
The applicant argues that the Master Plan contains °recommendations' about how to
use specific land and should not be taken as a literal binding requirement as to how
specific land should be developed. See DCC 23.08.020."
Although staff agrees that the Comprehensive Plan is generally not a site-specific
document, the Comprehensive Plan specifically references the Master Plan as the
guiding document for the Bend Airport and argues that with respect to the Bend
Municipal Airport, the plan is site specific. Drawing 1 of the 2002 Master Plan Update
illustrates the existing and ultimate airport layout Although both the text describing
Drawing 1 (pages 77-78) and Drawing 1 indicate anticipated airport growth and
development on the west and east sides of the airport, the drawing does not depict
anticipated growth to the south of the airport on the Gibson Airpark property. As a result,
staff believes the applicant's proposal is not consistent with the Master Plan and,
therefore, not consistent with the Comprehensive Plan.
The hearings officer agrees with staff, although for a somewhat different reason. Unless
or until the Bend Municipal Airport Master Plan is updated to include the Gibson Airpark
LLC property, a decision to designate the site for airport related development is not
supported by an adequate factual base. 1000 Friends of Oregon v. Dundee, 203 Or App
at 215.
1. Goal. Protect the function and economic viability of the
existing public -use airports, while ensuring public safety and
compatibility between the airport uses and surrounding land
uses for public use airports and for private airports with three
or more based aircraft
2. Policies.
a. Deschutes County shall protect public -use airports
through the development of airport land use
regulations. Efforts shall be made to regulate the land
uses in designated areas surrounding the Redmond,
Bend, Sunriver and Sisters (Eagle Air) airports based
upon adopted airport master plans or evidence of each
airports specific level of risk and usage. The purpose
of these regulations shall be to prevent the installation
of airspace obstructions, additional airport hazards,
11DCC 23.08.020 provides, in relevant part
°[T]he purpose of the Comprehensive Plan for Deschutes County is not to provide site-
specific identification of the appropriate land uses which may take place on a particular
piece of land, but rather it is to consider the significant factors which affect or are affected
by development in the county and provide a general guide to the various decisions which
must be made to promote the greatest efficiency and equity possible, while managing the
continuing growth and change of the area.'
PA -08-3, ZC-08-3, Gibson Airpark Page 18
and ensure the safety of the public and guide
compatible land use. For the safety of those on the
ground, only limited uses shall be allowed in specific
noise impacted and crash hazard areas that have been
Identified for each specific airport
b. Deschutes County shall:
2. Cooperate with the cities of Bend, Redmond
and Sisters in establishing uniform zoning
standards, which will prevent the development
of hazardous structures and incompatible land
uses around airports;
4. Through adoption of appropriate zoning
restrictions, allow land uses around public -use
airports that will not be adversely affected by
noise and safety problems and will be
compatible with the airports and their
operations;
FINDING: With regard to the function and economic viability of the Bend Airport, the
applicant references two items indicating a need for aircraft hangar space at the Bend
Airport and, therefore, supporting the proposed plan amendment and zone change.
First, the applicant cites page 22 of the 1994 Master Plan Update which states, "...the
hangars are fully occupied and there is a waiting list of aircraft owners desiring hangar
space." Second, the applicant notes that the recent application by the City of Bend to
establish a Bend Municipal Airport Urban Renewal Plan included much of the subject
property in the urban renewal area. Staff notes that the comment letter from the Bend
Airport Manager, Sue Palmeri, doesnot indicate a present need to acquire this property
for future Bend Airport development.
With regard to incompatible uses, the applicant notes that residential uses exist on the
subject property that are not compatible with the airport, and argues that the proposed
zone change would ensure compatible uses in the future by limiting development on the
subject property to airport -related uses. While staff agrees that the proposed rezone
could limit now uses on the subject property to those that are compatible with the airport,
the existing residential uses would become lawfully established nonconforming uses that
could be allowed to remain without assurance from the applicant that these residential
uses would be removed prior to zone change approval.
If the board of county commissioners concludes that it is appropriate to reduce conflicts
with airport uses, approval of the proposal could be conditioned on the removal of
residential uses from the site.
13. Discourage future development of private
landing fields when they are In proximity to one
another, near other public airports and potential
airspace conflicts have been determined to
exist by the Federal Aviation administration
(FAA) or ODO T Aeronautics.
PA -08-3, ZC-08-3, Gibson Airpark Page 19
FINDING: The applicant proposes to develop new hangar space and permit airport
related uses on the site. The applicant slated that it hopes that the development on the
site will be able to take advantage of its proximity to the airport by coordinating use of
the existing runways, which may mean some "through the fence use.' The applicant
notes that the 2002 Bend Municipal Airport Master Plan Update makes several
references to the growing population of Deschutes County and the growing demand for
aircraft hangars at the airport Based on this information, the applicant argues that a
failure to recognize this demand, which would be somewhat alleviated by the proposal,
may lead to development of private landing fields in proximity to the Bend or Redmond
airports.
Although the Master Plan identifies a growing demand for aircraft hangar space, this
demand has existed since before 2002, and presumably the Master Plan's allocation of
space for airport uses includes additional area to accommodate new aircraft hangars.
Further, there is no evidence that construction of additional hangars on this site will in
fact reduce the need to establish new landing areas near existing airports or airstrips.
C. Title 18, Zoning Ordinance
1, Section 18.136.020. Rezoning standards.
The applicant for a quasi-judicial rezoning must establish that the
public interest is best served by the rezoning of 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.
FINDING: The findings set out above lead to the conclusion that the proposal does not
conform to the Comprehensive Plan and is not consistent with the goals set out in the
plan.
B. That the change In classification for the subject property is
consistent with the purpose and Intent of the proposed zone
classification.
FINDING: The applicant proposes to rezone the subject property from Exclusive Farm
Use to Airport Development (AD) and Aviation Support District. Chapter 18.76, Airport
Development Zone, govems uses for lands zoned AD. Section 18.76.010, Purpose,
provides the following:
The purpose of the Airport Development (AD) Zone is to allow for development
compatible with ongoing airport use consistent with the Deschutes County Year
2000 Comprehensive Plan and the 1994 Bend Airport Master Plan (as amended
by a 2002 supplement), while providing for public review of proposed
development likely to have significant impact on surrounding lands. The AD
Zone is composed of three separate zoning districts, each with its own set of
allowed uses and distinct regulations, as further set forth in DCC 16.76.
In reviewing the 2002 amendment to the 1994 Master Plan (incorporated by reference
PA -08-3, ZC-08-3, Gibson Airpark Page 20
herein), staff notes that page 77 of the report discusses Drawing 1 -- Airport Layout Plan,
and provides the following introductory statement,
The Airport layout Plan (ALP) presents the existing and ultimate airport layout
and depicts the improvements that are recommended to meet forecast aviation
demand.
Drawing 1 shows no existing or anticipated development on the Gibson Airpark
propertyi2. Additionally, Drawing 6 of the 2002 Master Plan amendment, which depicts
the on -airport land use plan, does not designate any portion of the Gibson Airpark
property for airport -related zoning. Because the proposal is based on a need that is not
identified or supported by the Bend Municipal Airport Master Plan, staff asserts it is
therefore not consistent with the purpose of the Airport Development Zone.
In contrast to staffs position, the applicant argues that the drawings represent
recommendations and, therefore, the Gibson Airpark property, although not included in
the drawings, could be used as part of the Bend Airport. Specifically, the applicant
points to page 40 of the 1994 Master Plan which states,
The purpose of this chapter [Chapter 4: Airport Plans] is to describe and evaluate
significant airport development alternatives and then present recommended
airport plans through a series of drawings and supporting narrative.
Similarly, staff notes that page 76 of the 2002 Master Plan includes the following
language,
The purpose of this chapter [Chapter Six, Airport Layout Plans] is to describe in
narrative and graphic form, the recommended airport development contained in
the 20 -year master plan.
The applicant argues that where the text of an ordinance clearly demonstrates an intent
not to rezone a particular area, but an attached map shows the area as rezoned, the text
controls. In this situation, the applicant believes the text of the Master Plan indicating
that the drawings represent recommendations, controls over the drawing that does not
include the Gbson Airpark property. The applicant also cites to other evidence within the
Master Plan which supports the applicant's argument that it would be appropriate to
rezone the Gibson Airpark property to Airport Development. The applicant cites pages
12-14 of the Master Pian, and a reference in the Master Plan to a section of the
Transportation Element of the Comprehensive Plan which states,
a) The Bend Municipal Airport will grow along with the rest of Deschutes
County, and the following additional policies shall apply to the properties
shown on the components of the airport overlay -zones within the area of
average Ldn 65 contour (substantial impact area):
1. Property within the average Ldn 65 contour (substantial impact
area) shall be considered committed for airport -related or
accessory commercial or industrial uses. At such time as an
exception to LCDC Goal 3 (Agricultural Lands) is taken, such
n Q j 12 Drawing 4-6 of the 1994 Master Plan shows the western portion of tax lot 400 designated for
�+ future aviation development
C1414.
PA -0B-3, ZC-08-3, Gibson Airpark Page 21
properties shall be available to be rezoned to A -D Airport
Development, provided public need is demonstrated for the
exception, in accordance with LCDC Goal 2 (Land Use Planning)
and public need is demonstrated for the zone to be placed upon
the property. The Ldn 65 noise contour map, marked Exhibit A,
attached thereto and, by this reference, incorporated herein, is
adopted to designate those properties within the Ldn 65 noise
contour.
The applicant contends that the majority of the subject property is within the Ldn 65
contour, as shown in Figure 4 of Draft Report Accompanying the Bend Municipal Airport
Urban Renewal Plan dated June 2008, and incorporated herein by reference,
Therefore, the subject property is considered committed for airport -related uses.
Although staff agrees that Figure 4 indicates the majority of the subject property is within
the Ldn 65 contour, staff notes that the above -referenced language no longer exists in
the Transportation Element of the Comprehensive Plan. When brought to the
applicant's attention, the applicant argued that since the Master Plan is the guiding
document for the Bend Airport, the "considered committed" language still applies. If the
above language still applies, staff argues the applicant would be required to demonstrate
there is a public need.
The applicant is correct that, generally speaking, where there is a discrepancy between
plan text and drawings that the plan text controls. However, it is not clear that there is a
discrepancy between what is depicted on Drawing 1 and the plan text. The plan
evaluates altematives for addressing the need for airport related development on the
airport property. It concludes that there is adequate land on the airport property to
accommodate anticipated need through 2021. It evaluates alternatives to address those
needs based on a variety of on-site configurations, and selects a preferred alternative.
There is nothing in the plan that shows that extra -territorial property will be needed to
accommodate airport -related development.
Further, the applicant's reliance on a comprehensive plan policy that has since been
repealed is misplaced. The portion of the 2002 Bend Airport Municipal Plan Update
referred to merely sets out a series of Deschutes Comprehensive Plan policies that
pertain to airports generally, and is not intended to incorporate those policies into a
directive for rezoning nearby property for airport uses. Further, the 2002 update itself
recognized that the noise contours were unlikely to fully address noise impacts, which
supports a conclusion that the county's prior policies regarding land designations for
uses within the Ldn 65 contour were not considered when identifying land appropriate for
airport uses in the update. See 2002 update, 14-15.
The applicant has not demonstrated that the proposal is consistent with this standard.
C. That changing the zoning will presently serve the public
health, safety and welfare considering the following factors:
i. The availability and efficiency of providing necessary
public services and facilities.
FINDING: The evidence supports a conclusion that limited airport related development
can be established on the site without violating Goals 11 and 12. However, the hearings
PA -08-3, ZC-08-3, Gibson Airpark Page 22
officer concludes that more intensive development, e.g., development that requires the
extension of sewer lines to the site, will require an exception to Goal 11. Further, if the
site is developed with high -traffic uses, the existing transportation facilities may need to
be upgraded to support those uses.
2. The impacts on surrounding land use will be
consistent with the specific goals and policies
contained within the Comprehensive Plan.
FINDING: Section 23.88.020 indudes the Following goal:
To preserve and maintain agricultural land.
As discussed in a previous finding, staff is concerned with how potential airport -related
uses on the portion of tax lot 403 to the east and south of Nelson Road could affect
existing farm use and agricultural land on tax lots 500 and 700. Additionally, staff is
concerned that at a minimum, the above -referenced portion of tax lot 403 was correctly
inventoried as agricultural land, and would be impacted by the proposed rezone. The
applicant argues that the eastem and southern portions of tax lot 403 are not part of an
existing farm unit, and that Nelson Road will need to be realigned to fully utilize the site
for airport uses. This evidence is sufficient to support a finding that the loss of the area
lying east of Nelson Road will not significantly alter the supply of agricultural land in the
vicinity.
D. 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: The applicant argues that a mistake was made in the zoning of the property
and that there has been a change in circumstances since the property was zoned. As
discussed in previous findings, the applicant argues that the soils investigation shows
that the property does not meet the definition of agricultural land and, therefore, the
property zoned EFU incorrectly.
The applicant provides two pieces of evidence to support its contention that there has
been a change in circumstances warranting the re -designation. First, the applicant
states that since the property was zoned, the City of Bend acquired a portion of tax lot
400 that essentially bisects that tax lot. The applicant argues that this new configuration
makes the application of irrigation water impractical. Secondly, the applicant argues that
the Bend Airport has changed since it was originally zoned, with one consequence being
the need for additional land zoned for airport use. While staff agrees that the current
configuration of the subject property would make the application of irrigation water
difficult, staff notes that the comment letter from the Bend Airport Manager does not
indicate a need for additional airport land.
The hearings officer agrees with staff that there is insufficient evidence to support a
finding that there have been a change in circumstances since the property was last
zoned that warrants rezoning the site for airport related development.
PA -08-3, ZC-08-3, Gibson Airpark Page 23
D. Title 22 of the Deschutes County Zoning Ordinance
1. Section 22.28.030, Land Use Action Decisions
Decision on plan amendments and zone changes.
8. 1n considering all quasi-judicial zone changes and those
quasi-judicial plan amendments on which the Hearings
Officer has authority to make a decision, the Board of County
Commissioners shall, in the absence of an appeal or review
initiated by the Board, adopt the Hearings Officer's decision.
No argument or further testimony will be taken by the Board.
FINDING: A public hearing with the County Hearings Officer was held December 16,
2008. As necessary, a meeting with the Board would be scheduled subsequent to the
Hearings Officer decision.
IV. CONCLUSION AND RECOMMENDATION:
Based on the findings of fact and conclusions of law set out above, the hearings officer
concludes that the applicant has not demonstrated that the proposal is consistent with
Goal 2, or that changes in circumstances warrant re -designating the site for airport
related uses. Therefore, the hearings officer recommends that the applications not be
approved until amendments have been adopted by the City of Bend to designate the site
as needed for airport development in the Bend Municipal Airport Master Plan.
Dated this 20th day of January, 2009
Mailed this day of January, 2009
Anne Corcoran Briggs
Hearings Officer
THIS DECISION IS NOT THE FINAL DECISION OF THE COUNTY. THE
DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS RENDERS THE
FINAL DECISION FOR PLAN AMENDMENTS AND CORRESPONDING ZONE
CHANGES.
PA -08-3, ZC-08-3, Gibson Airpark Page 24
