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Home My WebLink AboutAppeal - Aviation Support DistrictDeschutes 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 February 10, 2010 Please see directions for completing this document on the next page. DATE: January 29, 2010 FROM: Anthony Raguine Community Development Department 617-473C TITLE OF AGENDA ITEM: A 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) has applied for a Plan Amendment and Zone Change (PA -08-3, ?`C- 08-3) for a property located at 22525 Nelson Road, and identified on County Assessor tax 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 Exclu3ive Farm Use to Airport Development - Airport Support District. A public hearing was held before a Deschutes County Hearings Officer on December 16, 2008. B;sed on the information in the record, the Hearings Officer denied the application in a decision dated Jai tuary 22, 2009. The basis of the Hearings Officer decision was twofold: 1) The proposal is not consistelnt with Statewide Planning Goal 2, and 2) There has not been a change in circumstances that warranty 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 accommod€te 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 Boa -d of County Commissioners ("Board") on February 28, 2009. At that hearing, the Board indicated that n update to the Bend Municipal Airport Master Plan was necessary before the Board would consider I Plan Amendment and Zone Change. In response, the applicant requested a continuance of the publ c 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 8, 2010. The applicant has 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. The letters also indicate that the applicant's legal counsel cannot be present for the February 10, 2010 public hearing. Therefore, should the Board deny the request for a continuance to the spring of 2011, the applicant requests a continuance to the next possible hearing date to allow the applicant's legal counsel to be in attendance. According to the City of Bend, the Airport Master Plan scope has been reviewed by City and County Planning staff, with comments forwarded to the consultant. The Bend Airport Manager anticipates initiating the update in April 2010, with the process projected to take at least one year to complete. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: The Board should determine whether to grant a continuance of the public hearing. ATTENDANCE: Anthony Raguine. DISTRIBUTION OF DOCUMENTS: Anthony Raguine 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 • MILLER NASH.- ATTORNEYS AT LAW Will A. Van Vactor +ill.vanvactor@mil lernash.com (541) 447-5777 direct line PORTLAND OPECON SEATTLE. wcs roc.-rom VANCOUVER. wASHINCYC'. CENTRAL OREGON WWW.MILLERNASH.COM January 27, 2010 VIA E-MAIL and REGULAR MAIL Anthony Raguine, Senior Planner Deschutes County Planning Division 117 NW Lafayette Ave Bend OR 97701-1925 446 N.W. Third ;street Prineville, Oregon 97754-1757 OFFICE 541.447 5777 FAX 541.447 5755 Subject: Gibson Airpark Zone Change; File Nos. PA-o8-3/ZC-o8-3 Dear Anthony: This letter follows up a letter I sent you on January 21, 2010, as well as a couple emails we exchanged recently regarding the above -referenced file numbers. The purpose of this letter is to further explain my client's position regarding his request that the hearing be continued. We appreciate your understanding as well as the understanding of the Board of Commissioners in considering our request for a continuance. We seek a continuance because the Airport Master Plan for the Bend Municipal Airport is currently undergoing a significant revision. At the hearing held this time of the year in 2009, the major issue that concerned the Board of Commissioners was whether or not my client's request for a zone change and plan amendment was consistent with the Airport Master Plan. It was known at that time that the City was considering revising the Master Plan so the Board of Commissioners agreed to continue the hearing to a later date. Unfortunately, the Master Plan has not been completed to date. The good news is that the City of Bend plans to move forward with the new Master Plan and have it complete by the Spring of 2011. Thus, we ask that the hearing scheduled for February 10, 2010 be continued until Spring of 2011. Even if the Master Plan is not complete at that point, we should have a good idea regarding whether or not the Master PIan will provide for expansion towards the Gibson Airpark property. CORD005:60012185.1 Anthony Raguine January 27, 2010 Page 2 Unfortunately, neither myself nor Jeff Wilson from my office are available to attend the hearing on February loth. Last month we were informed that Jeff Wilson must be in Salem, Oregon for an oral argument before the Court of Appeals on that day, and as a consequence I have to cover a settlement conference in Crook County. Consequently, if the Board of Commissioners decides to proceed on the application and not grant our request for a continuance, I ask that the February loth hearing be rescheduled for a time as soon as practically possible after February loth so that my client can have counsel present to answer any questions the Board may have regarding the pending application. We apologize for any inconvenience this may cause, but unfortunately we cannot control the Court of Appeals. We understand the County's desire to conclude this matter, but in light of the application fee paid by my client and the reasonably limited number of issues that appear to be holding this matter up at this point, I believe a continuance until Spring of 2011 is an appropriate request. Please feel free to call me with any questions or concerns. Thank you again for your understanding. Best regards, \\,) �v°' Will A. Van Vactor cc: Patrick Gisler CORDOCS:60012185.1 MILLER NASH--P ATTORNEYS AT LAW Will A. Van Vactor will.vanvactor@millernash.com (541) 447-5777 direct line PORTLAND, OREGON SEATTLE, WASHINGTON VANCOUVER, WASHINGTON CENTRAL OREGON WWW.MILLERNASH.COM January 21, 2010 VIA E-MAIL and REGULAR MAIL Anthony Raguine, Senior Planner Deschutes County Planning Division 117 NW Lafayette Ave Bend OR 97701-1925 JAN 2 2 2010 Subject: Gibson Airpark Zone Change; File Nos. PA-o8-3/ZC-o8-3 Dear Anthony: 446 N.W. Third Street Prineville, Oregon 97754-1757 OFFICE 54%4475777 FAX 54 1.447.5755 The purpose of this letter is to request a continuance for the upcoming hearing in the above -referenced matter. As I understand, and as can be expected, the map is slowly being developed. Certainly my client wishes that this process would move quicker so that he can move forward with the zone change, however as we know, the preparation of a new master plan is a time-consuming process. Thus, my client wishes to continue the upcoming hearing scheduled for February 10, 2010 on the above -referenced matter. This letter is my client's formal request for a continuance. Please let me know if you anticipate any problems with this request. I appreciate your courtesies in this matter and hope that we are in a better position to move forward with the zone change and plan amendment in the near future. Best regards, Will A. Van Vabtor cc: Patrick Gisler CORDOCS:60012110.1 DECISION OF THE DESCHUTES COUNTY HEARINGS FILE 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 southern border of the Bend Municipal Airport. STAFF CONTACT: Anthony Raguine, Senior Planner RECORD CLOSED: December 16, 2008 DECISION ISSUED: January 20, 2009 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 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. II. 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 lots (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 western 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. 1 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 Plan 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 plansupported 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 Airpark, 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 all 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. III. 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, ZC-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 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 I-IV/I-VI that is adjacent to or intermingled with lands in capability classes I-IV/l-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed; OAR 660-033-0020(1)(a) 1. OAR 660-033-0020(1)(a)(A) The subject property is located in "Eastern Oregon," as this term is defined in OAR 660- 033-0203. 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 land," 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 Borine 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; Tax lot 403 is approximately 13 percent, or 3.4 acres, of Class III (irrigated) and VI (nonirrigated), and 87 percent, or 22.8 acres, of Class VIINIII. 3 (5) "Eastern Oregon" means that portion of the state lying 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 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 VIINIII soils. The Class VII/VIII 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 eastern 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 adjacent or nearby agricultural 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 lying 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 eastern 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 "agricultural 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)(b) 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/I-VI within a farm unit." For the purposes of OAR 660-033-0020(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 167 (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 [1992]. 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." PA -08-3, ZC-08-3, Gibson Airpark Page 8 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 -08-3 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 governments 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 light industrial uses, which the applicant asserts is the most PA -08-3, ZC-08-3, Gibson Airpark Page 11 intensive use allowed in the Airport Development zone.6 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 eastern 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 Tight 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.8 6 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 trip 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. ' Tye Engineering analyzed both level of service (LOS) and vehicle number:road capacity (v/c) analysis for the intersections. Most local governments require a level of service analysis, and ODOT requires a v/c analysis. The parties agree that only the LOS standard applies to the proposal. 8 DCC 18.76.030(D) provides that "farm uses" as that term is defined in DCC Title 18 are permitted outright in all 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. PA -08-3, ZC-08-3, Gibson Airpark Page 12 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 Market/Powell Butte intersection will be constructed in conjunction with another development approval, and that no new intersection improvements are needed until proposed Phases II and III are developed on the subject property. The applicant concedes that a new right -turn deceleration lane at Powell Butte Road onto Nelson Road and an eastbound right turn 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 "farm use" 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 Butler Market/Powell Butte intersection northbound left turn lane is constructed PA -08-3, ZC-08-3, Gibson Airpark Page 13 prior to Phase I 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 Butler 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 * * *." DCC 23.64.200(2) sets out the airport related policies. 9 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. 10 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 197.646(4). PA -08-3, ZC-08-3, Gibson Airpark Page 14 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: Energy 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 Greenway; 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. 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. 1. 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 16 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 concerns 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 I 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 FAA 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. [7]he 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. PA -08-3, ZC-08-3, Gibson Airpark Page 17 FINDING: Via 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 23.08.020.11 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. 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, 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. 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 ODOT 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 stated 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, 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 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 property12. 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 Gibson 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 Plan, 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 12 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 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 alternatives 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: 1. 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 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 affect existing farm use and agricultural land on tax Tots 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 eastern 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. 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. 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 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 thisc� 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