HomeMy WebLinkAboutOrdinances re Zone Change - 4RDeschutes 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 October 18, 2010 DATE: 9/20/10 FROM: Will Groves CDD x6518 TITLE OF AGENDA ITEM: A de novo hearing on Ordinance 2010-030, Amending Deschutes County Code 23.24.030 and 23.40.070 and Adding 23.120.110, to Adopt an Exception to Goal 14 and To Change the Plan Designation for Certain Property From Agricultural Land to Rural Industrial and on Ordinance 2010- 031 Amending Deschutes County Code 18.100.090 and Title 18, the Deschutes County Zoning Map, to Change the Zone Designation for Certain Property From Exclusive Farm Use to Rural Residential with a Limited Use Combing Zone To Allow the Storage, Crushing, Processing, Sale and Distribution of Minerals. PUBLIC HEARING ON THIS DATE? Yes BACKGROUND AND POLICY IMPLICATIONS: 4-R Equipment, LLC has requested approval of a plan amendment, zone change and goal exception to redesignate and rezone the subject property from Exclusive Farm Use to Rural Industrial with an Limited Use Combining Zone allowing the storage, crushing, processing, sale and distribution of minerals in conjunction with the applicants' operations on adjacent land. Through Ordinances2009-007 and 2009-008, the Board previously approved a modification of the Limited Use Zone on the former Cascade Pumice property at Deschutes Junction to allow the storage, crushing, processing, sale and distribution of minerals. Following the 2009 plan amendment and zone change, the applicants determined that they needed to further expand their operations by approximately 30 acres, which is the subject of this application. The Hearings Officer found the application met, or could meet, all relevant criteria and approved the applicant's proposal, in a decision dated July 23, 2010. Under 22.28.030(C) a plan amendment and zone change requiring a goal exception shall be heard de novo before the Board of County Commissioners without the necessity of filing an appeal, regardless of the determination of the Hearings Officer. Because the proposed zone change is dependent upon approval of the proposed plan amendment, and plan amendments are not subject to the 150 -day period for issuance of a final local land use decision under ORS 215.427, this application is not subject to the 150 -day period. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: Conduct de novo hearing. ATTENDANCE: Legal, Will Groves DISTRIBUTION OF DOCUMENTS: Copy to Will Groves Community Development Department September 20, 2010 Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM To: Deschutes Board of County Commissioners From: Will Groves, Senior Planner Subject: A de novo hearing on Ordinance 2010-030, Amending Deschutes County Code 23.40.070 and Adding 23.24.030 and 23.120.110, to Adopt an Exception to Goal 14 and To Change the Plan Designation for Certain Property From Agricultural Land to Rural Industrial and on Ordinance 2010-031 Amending Deschutes County Code 18.100.090 and Title 18, the Deschutes County Zoning Map, to Change the Zone Designation for Certain Property From Exclusive Farm Use to Rural Residential with a Limited Use Combing Zone To Allowing the Storage, Crushing, Processing, Sale and Distribution of Minerals. BACKGROUND 4-R Equipment, LLC has requested approval of a plan amendment, zone change and goal exception to redesignate and rezone the subject property from Exclusive Farm Use to Rural Industrial with an Limited Use Combining Zone allowing the storage, crushing, processing, sale and distribution of minerals in conjunction with the applicants' operations on adjacent land. Through Ordinances 2009-007 and 2009-008, the Board previously approved a modification of the Limited Use Zone on the former Cascade Pumice property at Deschutes Junction to allow the storage, crushing, processing, sale and distribution of minerals. Following the 2009 plan amendment and zone change, the applicants determined that they needed to further expand their operations by approximately 30 acres, which is the subject of this application. The Hearings Officer found the application met, or could meet, all relevant criteria and approved the applicant's proposal, in a decision dated July 23, 2010. Quality Services Performed with Pride Under 22.28.030(C) a plan amendment and zone change requiring a goal exception shall be heard de novo before the Board of County Commissioners without the necessity of filing an appeal, regardless of the determination of the Hearings Officer. Because the proposed zone change is dependent upon approval of the proposed plan amendment, and plan amendments are not subject to the 150 -day period for issuance of a final local land use decision under ORS 215.427, this application is not subject to the 150 -day period. STAFF DISCUSSION Staff concurs with the Hearings Officer decision. Before the Hearings Officer, Paul Dewey, representing Landwatch, expressed concern at the size of the proposed expansion and the lack of materials to justify the proposed expansion size. The applicant then submitted a revised proposal that included a smaller expansion. Based on conversations with Mr. Dewey, Staff believes that the revised proposal was satisfactory to Landwatch and Landwatch no longer opposes the application. A neighbor (Jan Elrod) who owns a farm east across the railroad tracks from the applicants' current operation and the subject property, expressed concerns about impacts on air quality from the applicants' existing operations and potential expansion. The Hearings Officer found that the applicants' proposal has the potential to reduce or eliminate impacts on Ms. Elrod's property by moving the heavy truck and equipment parking and loading areas, as well as its crushing operation, farther to the southwest and away from Ms. Elrod's farm. In addition the Hearings Officer found the Limited Use Combining Zone for the subject property will include language providing that uses on the property will be subject to conditional use and site plan review to assure compatibility with nearby farm and rural residential uses. DOCUMENTATION A copy of the Hearings Officer decision, existing conservation easement, and proposed changes to Title 18 and 23 are attached for your review. SCHEDULE This item is scheduled for a de novo hearing at 10 A.M. on October 4, 2010. A work session is scheduled 1:30 P.M. on September 29, 2010. Please feel free to contact me with any questions or concerns. PRELIMINARY STATEMENT FOR A DE NOVO PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS I. INTRODUCTION A. This is a de novo hearing on a proposed zone change, and plan amendment that includes a goal exception to Statewide Planning Goal 14. The County File Numbers are PA -10-3 and ZC-10-2. B. In those applications, the applicant requested approval of a plan amendment, zone change and goal exceptions to change the designation of the subject property from Agricultural Land to Rural Industrial and to rezone the subject property from Exclusive Farm Use to Rural Industrial with an Limited Use Combining Zone allowing the storage, crushing, processing, sale and distribution of minerals in conjunction with the applicants' operations on adjacent land. C. These applications were previously considered by the Hearings Officer after a public hearing was held on May 11 and June 8, 2010. Evidence and testimony were received at that hearing. The Hearings Officer recommended the Board approve the exception to Goal 14, with specified conditions of approval. D. The Board takes notice of the record below and includes that record as part of the record before us. II. BURDEN OF PROOF AND APPLICABLE CRITERIA A. The applicants have the burden of proving that they are entitled to the proposal sought. B. The standards applicable to the application before us are listed in the Hearings Officer's decision. Copies of this decision are available by the door. C. Testimony and evidence at this hearing must be directed toward the criteria, as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. D. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. III. HEARINGS PROCEDURE A. Evidence to be reviewed by the Board. 1 The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. W. ORDER OF PRESENTATION A. The hearing will be conducted in the following order. 1. The staff will give a report. The applicant will then have an opportunity to offer testimony and evidence. 2. Proponents of the proposal then the opponents will then be given a chance to testify and present evidence. 3. The applicants will then be allowed to present rebuttal testimony but may not present new evidence. 4. At the Board's discretion, if the applicants presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 5. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. 6. The Board may limit the time period for presentations. B. If anyone wishes to ask a question of a witness, the person may direct the question to the Chair during that person's testimony, or, if the person has already testified, after all other witnesses have testified but before the Applicant's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. C. Continuances The grant of a continuance or record extension shall be at the discretion of the Board. 1. If the Board grants a continuance, it shall continue the public hearing to a date certain, or leave the written record open. D. If, at the conclusion of the hearing, the Board leaves the record open for additional written evidence or testimony, the record shall be left to a date certain for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. 2 E. If the hearing is continued or the record left open, the applicant shall also be allowed a period to a date certain after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. V. PRE -HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS A. Do any of the Commissioners have any ex -parte contacts, prior hearing observations; biases; or conflicts of interest to declare? If so, please state their nature and extent. B. Does any party wish to challenge any Commissioner based on ex -parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) (Staff Report) 3 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: PA -10-3, ZC-10-2 APPLICANTS/ PROPERTY OWNERS: 4-R Equipment, LLC Jack Robinson and Sons, Inc. P.O. Box 5006 Bend, Oregon 97708 APPLICANTS' ATTORNEY: OPPONENT'S ATTORNEY: REQUEST: STAFF REVIEWER: HEARING DATES: RECORD CLOSED: Sharon R. Smith Bryant Lovlien & Jarvis Pc P.O. Box 880 Bend, Oregon 97709 Paul Dewey 1539 N.W. Vicksburg Avenue Bend, Oregon 97701 Attorney for Opponent Central Oregon LandWatch The applicants request approval of a plan amendment, zone change and goal exceptions to redesignate and rezone the subject property from EFU to RI with an LU Combining Zone allowing the storage, crushing, processing, sale and distribution of minerals in conjunction with the applicants' operations on adjacent land. Will Groves, Senior Planner May 11 and June 8, 2010 June 15, 2010 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04, Title, Purpose and Definitions * Section 18.04.030, Definitions 2. Chapter 18.84, Landscape Management - LM Combining Zone 3. Chapter 18.100, Rural Industrial - RI Zone 4-R Equipment LLC PA -10-3, ZC-10-2 Page 1 of 44 * Section 18.100.010, Purpose 4. Chapter 18.112, Limited Use Combining Zone * Section 18.112.010, Purpose * Section 18.112.020, Combining Zone Requirements 5. Chapter 18.136, Amendments * Section 18.136.020, Rezoning Standards B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.010, Hearing 2. Chapter 22.020, Notice C. Title 23 of the Deschutes County Code, the Year 2000 Comprehensive Plan 1. Chapter 23.08, Introduction * Section 23.08.010, Introduction 2. Chapter 23.20, Comprehensive Planning Process * Section 23.20.040, Goals and Policies 3. Chapter 23.24, Rural Development * Section 23.24.020, Goals * Section 23.24.030, Policies 4. Chapter 23.40, Unincorporated Communities 5. Chapter 23.120, Goal Exception Statement * Section 23.120.110, Rural Industrial Zone D. Oregon Administrative Rules, Chapter 660, Land Conservation and Development Commission 1. Division 4 - Interpretation of Goal 2 Exception Process: * OAR 660-004-0010, Application of the Goal 2 Exception Process to Certain Goals * OAR 660-004-0018, Planning and Zoning for Exception Areas 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 2 of 44 * OAR 660-004-0020, Goal 2, Part II(c), Exception Requirements * OAR 660-004-0022, Reasons Exceptions Analysis for Rural Industrial 2. Division 12 - Transportation Planning Rule * OAR 660-12-0060, Plan and Land Use Regulation Amendments 3. Division 14 - Urbanization * OAR 660-014-0040, Establishment of New Urban Development on Undeveloped Rural Lands 4. Division 15, State -Wide Planning Goals and Guidelines * OAR 660-015-000, State-wide Planning Goals and Guidelines No. 1 Through No. 14 * OAR 660-0115-005, State-wide Planning Goal and Guideline No. 15 * OAR 660-015-010, State-wide Planning Goals and Guidelines No. 16 Through NO. 19 II. FINDINGS OF FACT: A. Location: The subject property is located at 64993 Deschutes Market Road, Bend, and is further identified as a portion of Tax Lot 300 on Deschutes County Assessor's Map 16- 12-26C, and the portion of Tax Lot 111 on Map 16-12-26A that is on the west side of the Burlington Northern -Santa Fe (BNSF) railroad tracks and north of Nichols Market Road.' Tax Lot 300 is located on the west side of the Central Oregon Irrigation District (COID) main irrigation canal. The applicants' existing industrial mineral processing and sale operations are conducted on land adjacent to and north and east of Tax Lot 300, and located on both the north and south sides of the Deschutes Market/Tumalo Road overpass east of Highway 97 (Tax Lots 102, 114 and 301 and the portion of Tax Lot 111 located west of the BNSF railroad tracks and south of Nichols Market Road). This entire area is commonly referred to as "Deschutes Junction." B. Zoning and Plan Designation: Tax Lot 300 is zoned Exclusive Farm Use — Tumalo/Redmond/Bend Subzone (EFU-TRB) and designated Agriculture on the Deschutes County Year 200 Comprehensive Plan map. Tax Lot 300 also has a Landscape Management (LM) Combining Zone because of its proximity to Highway 97. The portions of Tax Lot 111 included in the subject property also is zoned EFU-TRB and designated Agriculture on the comprehensive plan map. 1 The applicants' burden of proof states the subject property also includes the portions of Tax Lot 111 located on the east side of the BNSF railroad tracks and Tax Lot 203 on Assessor's Map 16-12-26A. However, the applicants' supplemental burden of proof notes Tax Lot 203 was "cancelled" and integrated into Tax Lot 111, presumably by the Assessor. In addition, as discussed in the findings below, the applicants' revised proposal eliminated the portions of Tax Lot 111 east of the railroad tracks that also were zoned EFU. 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 3 of 44 C. Site Description: The applicants' burden of proof states they own a total of approximately 60 acres of land at Deschutes Junction, approximately half of which is zoned RI and developed with the applicants' existing business operations, and approximately half of which is zoned EFU and is undeveloped, including the subject property. Tax Lot 300 has a vegetative cover of scattered juniper trees and native brush and grasses. There also is a natural berm along the western border of Tax Lot 300 adjacent to Highway 97. The portion of Tax Lot 111 included in the subject property do not have any native vegetation and are degraded due to past use for vehicle parking. Neither Tax Lot 300 nor the portion of Tax Lot 111 included in the subject property is engaged in farm use or has irrigation water rights. Tax Lot 300 has access from the Deschutes Market/Tumalo Road overpass through the applicants' adjacent property. The portion of Tax Lot 111 included in the subject property has access from Nichols Market Road. D. Soils: According to Natural Resources Conservation Service (NRCS) maps of the area the following four soil units are mapped on the subject property: 36A, Deskamp loamy sand, 0 to 3 percent slopes. This soil complex is composed of 85 percent Deskamp soil and similar inclusions, and 15 percent contrasting inclusions. The Deskamp soils are somewhat excessively drained with a rapid over moderate permeability, and about 5 inches of available water capacity. Major uses of this soil type are irrigated cropland and livestock grazing. The agricultural capability rating for 36A soils is 3S when irrigated, and 6S when not irrigated. Approximately 2 percent of the subject parcel is made up of this soil type. The subject property has no water rights and is not irrigated. 38B, Deskamp-Gosney complex, 0 to 8% slopes: This soil is composed of 50% Deskamp soil and similar inclusions, 35% Gosney Soil and similar inclusions, and 15% contrasting inclusions. The Deskamp soils are somewhat excessively drained with rapid permeability, and an available water capacity of about 3 inches. The Gosney soils are somewhat excessively drained with rapid permeability, and an available water capacity of about 1 inch. The contrasting inclusions contain Clovkamp soils in swales, soils that are very shallow to bedrock, and are on ridges with occasional rock outcrops. The major use of this soil is for livestock grazing. The Deskamp soils have ratings of 6E when unirrigated, and 3E when irrigated. The Gosney soils have ratings of 7E when unirrigated, and 4E when irrigated. This soil type is not considered high-value soil when irrigated. This soil type has a Class 6e farm use capability rating. Approximately 64 percent of the subject parcel is made up of this soil type. The subject property has no water rights and is not irrigated. 57B, Gosney Stony Loamy Sand, 3 to 8 percent slopes: This soil is composed of 85 percent Gosney soil and similar inclusions, and 15 percent of contrasting inclusions. The Gosney soils are somewhat excessively drained with rapid permeability, and an available water capacity of about 1 inch. The contrasting inclusions contain Deskamp soils in swales and rock outcrops. The major use of this soil is for livestock grazing. The soil type has a farm use capability rating of 4e when irrigated, and 7e when unirrigated. 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 4 of 44 Approximately 6 percent of the subject parcel is made up of this soil type. The subject property has no water rights and is not irrigated. 58C, Gosnev-Rock Outcrop-Deskamp complex, 0 to 15 percent slopes: This soil type is comprised of 50 percent Gosney soil and similar inclusions, 25 percent rock outcrop, 20 percent Deskamp soil and similar inclusions, and 5 percent contrasting inclusions. Gosney soils are somewhat excessively drained with rapid permeability. The available water capacity is about 1 inch. Deskamp soils are somewhat excessively drained with rapid permeability. Available water capacity is about 3 inches. Major use for this soil type is livestock grazing. The Gosney soils have ratings of 7E when unirrigated, and 4E when irrigated. The rock outcrop has a rating of 8S with or without irrigation. The Deskamp soils have ratings of 6E when unirrigated and 3E when irrigated. This soils type is not considered high-value when irrigated. Approximately 27 percent of the subject parcel is made up of this soil type. The applicants submitted a soils study conducted by Roger Borine, Certified Professional Soils Specialist, that found Tax Lot 300 contains "approximately 85% or 23 acres of Non -Agricultural Land (LCC7/8) and 15% or 3.9 acres of Agricultural land (LCC 6)." The soils study focused on Tax Lot 300 because it comprises the majority of the property subject to these applications and because the portion of Tax Lot 111 included in the subject property is very small. E. Surrounding Zoning and Land Uses: Land north and east of the subject property is zoned RI, some with and some without a Limited Use Combining (LU) Zone. Tax Lots 102, 111, 114 and 301 are owned by the applicants and developed with their existing industrial operations. On the west side of the COID canal and north of the Deschutes Market/Tumalo Road overpass is Tax Lot 107 zoned RI and the site of the United Pipe and Supply Company's headquarters and business operations. Across the COID canal from Tax Lot 107 is Tax Lot 106 zoned RI and developed with Willamette Graystone's concrete products manufacturing facility. Further to the north across Nichols Market Road is land zoned EFU-TRB and developed with a quasi -commercial park and gift/antique shop called "The Funny Farm." Across Highway 97 and on the north side of the Deschutes Market/Tumalo Road overpass is land zoned Rural Commercial (RC) and developed with a building/landscaping supply business. To the east across the BNSF railroad tracks are small- and medium -scale farms and rural residences as well as the Tioga Mobile Home Park on land zoned EFU. South of the mobile home park on the east side of the railroad tracks is vacant EFU-zoned land. South of the subject property on the west side of the railroad tracks is a large tract of vacant EFU-zoned land owned by the City of Bend, known as "Juniper Ridge," and in the conceptual planning stages for multi- use development. The record indicates none of the abutting EFU-zoned land is engaged in farm use. F. Procedural History: The property on which the applicants' current business operations are conducted was zoned EFU until 1998 when the applicant's predecessor Cascade Pumice Company obtained county approval of a "reasons" exception to Goals 3 and 14 to rezone the Deschutes Junction property now occupied by the applicants' industrial 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 5 of 44 operations from EFU to RI. The Deschutes County Board of Commissioners (board) adopted this "reasons" exception through Ordinance No. 98-081. This ordinance also created an LU Zone for the applicants' existing business property that restricted uses on the property to the "storage, crushing, processing, sale and distribution of pumice" (emphasis added). The 1998 ordinance states in pertinent part: "PL -20, the Deschutes County Year 2000 Comprehensive Plan, is amended by the adoption of an irrevocably committed exception to Goal 3 and a reasons exception to Goal 14. ... To ensure that the uses in the Rural Industrial zone on tax lot 16-12-26C are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of pumice "(Bold emphasis in original.) In September 2007, Cascade Pumice obtained county approval of a lot line adjustment (LL -07-76) that adjusted the boundary between Tax Lots 111 and 301, resulting in an increase in the size of Tax Lot 301 beyond the boundaries of the LU Zone created in 1998. The applicants purchased the Cascade Pumice business property and the adjacent subject property in November 2007 and moved their business out of the Bend City Limits to the former Cascade Pumice property. However, the applicants' business consists primarily of the storage, crushing, processing, sale and distribution of aggregate materials rather than pumice.2 Because LU Zone on the former Cascade Pumice property limited operations to the crushing, processing, distribution and sale of pumice, in November of 2008 the applicants requested a plan amendment, zone change and exception to Goals 3 and 14 to modify the LU on the former Cascade Pumice property to expand the types of minerals that could be processed on the site to include aggregate. Following a public hearing, on February 10, 2009 this Hearings Officer issued a decision approving the proposed plan amendment, zone change and goal exceptions and modified LU Zone (PA -08-6, ZC-08- 6). Through Ordinances 09-007 and 09-008, the board approved a modification of the LU Zone on the former Cascade Pumice property to allow the storage, crushing, processing, sale and distribution of minerals. Following the 2009 plan amendment and zone change, the applicants determined that they needed to expand their operations onto the subject property, and on April 8, 2010 submitted the subject plan amendment, zone change and goal exception applications. The applications were accepted as complete on May 10, 2010. Because these applications include a plan amendment, they are not subject to the 150 -day period for issuance of a final local land use decision under ORS 215.427. These applications request approval to change the plan designation and zoning of the subject property to RI with an LU Zone matching that applicable to the former Cascade Pumice property. The initial public 2 The applicants' burden of proof notes "aggregate" includes a variety of mineral types including, but not limited to, pumice. 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 6 of 44 hearing on the applications was scheduled for May 11, 2010. On that date, the Hearings Officer conducted a site visit to the subject property and vicinity accompanied by Senior Planner Will Groves. In addition, by an electronic mail message Mr. Groves advised the Hearings Officer that the county had not provided the required notice to the Department of Land Conservation and Development (DLCD) at least 45 days before the hearing. At the public hearing on May 11, 2010 the Hearings Officer continued the hearing to June 8, 2010 to assure compliance with the 45 -day DLCD notice requirement. The Hearings Officer also disclosed her observations and impressions from her site visit, and received testimony and evidence. At the initial hearing, both the Hearings Officer and Paul Dewey representing Central Oregon LandWatch questioned whether the applicant had adequately justified goal exceptions for all of the land included in the subject applications, and in particular the strips of land located on the east side of the BNSF railroad tracks and the southern and southwestern portion of Tax Lot 300. In response to these questions, the applicants withdrew from consideration the strips of land east of the railroad tracks. At the continued public hearing on June 8, 2010, the applicants submitted a revised proposal excluding the land east of the railroad tracks and the western and southwestern portions of Tax Lot 300. The Hearings Officer determined that this revision did not constitute a modification requiring a new application and notice. The Hearings Officer received testimony and evidence on the revised proposal, left the written evidentiary record open through June 15, 2010 and allowed the applicant through June 22, 2010 to submit final argument pursuant to ORS 197.763. By an electronic mail message dated June 14, 2010, the applicants waived the submission of final argument. Additional evidence was submitted until June 15, and the record closed on that date.3 G. Proposal: The applicant requests approval of a plan amendment, zone change and "reasons" exception to Goals 3 and 14 to change the plan designation and zoning of the subject property from EFU to RI with an LU Zone to allow the storage, crushing, processing, sale and distribution of minerals on the subject property. Public/Private Agency Comments: The Planning Division sent notice of the applicant's proposal to a number of public and private agencies and received responses from: the Deschutes County Road Department (road department), Assessor, Environmental Health Division, and Transportation Planner; and the City of Bend Fire Department. These comments are set forth verbatim at page six of the staff report and/or are included in the record. The following agencies did not respond to the request for comments: the Oregon Department of Water Resources, Watermaster-District 11; DLCD; and the Oregon Departments of Geology (DOGAMI), Environmental Quality (DEQ), and Transportation (ODOT). 3 On June 16, 2010, Paul Dewey submitted an electronic mail message including additional evidence and argument on behalf of Central Oregon LandWatch. However, because the evidentiary record closed on June 15, 2010 and Mr. Dewey did not request that the record be reopened, the Hearings Officer cannot consider that material. 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 7 of 44 J. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal and the initial public hearing to the owners of record of all property located within 750 feet of the subject property. In addition, notice of the initial public hearing was published in the Bend "Bulletin" newspaper, and the subject property was posted with a notice of proposed land use action sign. As of the date the record in this matter closed the county had received two letters and several electronic mail messages from the public in response to these notices. In addition, three members of the public testified at the public hearings. K. Lot of Record: In this Hearings Officer's decision in Belveron (ZC-08-4), I found the Deschutes County Code does not require that a property constitute a legal lot of record as a prerequisite for rezoning. I adhere to that holding here, and find the subject property's lot -of -record status is not relevant to this application.4 III. CONCLUSIONS OF LAW: GOAL EXCEPTIONS A. Oregon Administrative Rules, Chapter 660, Land Conservation and Development Commission 1. Division 4, Interpretation of Goal 2 Exception Process a. OAR 660-004-0010, Application of the Goal 2 Exception Process to Certain Goals (1) The exceptions process is not applicable to Statewide Goal 1 "Citizen Involvement" and Goal 2 "Land Use Planning." The exceptions process is generally applicable to all or part of those statewide goals which prescribe or restrict certain uses of resource land or limit the provision of certain public facilities and services. These statewide goals include but are not limited to: (a) Goal 3 "Agricultural Lands"; however, an exception to Goal 3 "Agricultural Lands" is not required for any of the farm or nonfarm uses permitted in an Exclusive Farm Use Zone under ORS Chapter 215 and OAR chapter 660 division 033, "Agricultural Lands" FINDINGS: The applicants argue an exception to Goal 3 is not required for the proposed plan amendment and zone change because the soils study submitted by the applicants and included as 4 The record indicates the county determined that Tax Lot 300 is a legal lot of record through issuance of a conditional use permit (CU -96-45), and Tax Lot 111 was determined to be a legal lot of record through Partition Plat 08-41. 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 8 of 44 Exhibit 3 to the applicants' burden of proof demonstrates the subject property does not constitute "agricultural land," defined in Goal 3 as follows: Agricultural Land — in western Oregon is land of predominantly Class I, II, III and IV soils and in eastern Oregon is land of predominantly Class I, II, III, IV, V and VI soils as identified in the Soil Capability Classification System of the United States Soil Conservation Service, and other land which are suitable for farm use 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, or accepted farming practices. Lands in other classes which are necessary to permit farm practices to be undertaken on adjacent or nearby lands, shall be included as agricultural land in any event. More detailed soil data to define agricultural land may be utilized by local governments if such data permits achievement of this goal. Agricultural land does not include land within acknowledged urban growth boundaries or land within acknowledged exceptions to Goals 3 or 4. As discussed in the Findings of Fact above, the applicants' soils study found that the majority of Tax Lot 300, which comprises the majority of the subject property, constitutes Class VII and VIII soils which are not considered "agricultural" soils. However, the staff report notes the definition of agricultural land also includes: * * * other lands which are suitable for farm use 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, or accepted farming practices. Lands in other classes which are necessary to permit farm practices to be undertaken on adjacent or nearby lands, shall be included as agricultural land in any event. The staff report suggested the applicants address this second part of the definition prior to any determination that the subject property is not "agricultural land." In response, the applicants' supplemental burden of proof states in relevant part: "The property is not suitable for farm use due to the poor soil fertility. It is not suitable for grazing because of its proximity to existing industrial uses and the highway. The climatic conditions are not particularly unique to this site. However, the high desert climate is not optimal for production of crops due to the short growing season. The property currently does not have irrigation water and has never been irrigated. There is an irrigation canal running through the property. However, without adjudicated water rights, there is no possibility of irrigation for farm purposes. The existing land use patterns make the property unsuitable for farm use. The property is surrounded by heavy industrial uses and Highway 97. To the south, the property is vacant and is not used for farming. For these reasons, the subject property is not necessary to permit farm practices on 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 9 of 44 adjacent or nearby lands." The Hearings Officer concurs with the applicants' analysis and finds that because the subject property — i.e., portions of Tax Lot 300 — do not constitute "agricultural land" and therefore an exception to Goal 3 is not required for the proposed plan amendment and zone change from EFU to RI. (c) Goal 14 "Urbanization" except as provided for in OAR Chapter 660, division 014 and the applicable paragraph (1)(c)(A), (B) or (C) of this rule: FINDINGS: The applicants have requested an exception to Goal 14 which provides: To provide for an orderly and efficient transition from rural to urban land use, to accommodate urban population and urban employment inside urban growth boundaries, to ensure efficient use of land, and to provide for livable communities. The state policy embodied in the goal includes providing an orderly transition from rural to urban uses and assuring efficient use of land. The staff report questions whether an exception to Goal 14 is required where, as here, the RI Zone is a rural zone. This issue appears not to have been addressed in the 1998 Cascade Pumice decision redesignating and rezoning the adjacent property on which the applicants' business operations currently are conducted from EFU to RI. It also was not addressed in this Hearings Officer's 2008 decision approving a modification to the LU Zone on that property to expand the types of minerals to be processed on the property. However, that was because I found a modification to a goal exception requires another goal exception. Nevertheless, the proposed plan amendment and zone change would permit industrial uses on rural land. Although the Hearings Officer finds it is not entirely clear that an exception to Goal 14 is in fact required for the applicants' proposal, the applicants addressed the relevant Goal 14 exception criteria, and I find it is appropriate for me to do so as well. Compliance with the applicable exception criteria is addressed in the findings below. b. OAR 660-004-0018, Planning and Zoning for Exception Areas *** (4) "Reasons" Exceptions: (a) When a local government takes an exception under the "Reasons" section of ORS 197.732(1)(c) and OAR 660- 004-0020 through 660-004-0022, plan and zone designations must limit the uses, density, public facilities and services, and activities to only those that are justified in the exception; 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 10 of 44 FINDINGS: The applicants request a "reasons exception" to Goal 14 to allow the rural industrial use of portions of Tax Lot 300 abutting their existing RI-zoned property. The applicants propose to limit the uses permitted on the subject property through the imposition of an LU Zone. The applicants' burden of proof proposed the following LU Zone language: "To ensure that the uses in the Rural Industrial Zone on tax lots 16-12-26C-300, 16-12-26A-203 and the portions of Tax Lot 16-12-26C-111 east of the railroad and north of Deschutes Market Road are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of minerals." (Underscored emphasis added.) In his staff report and at the public hearings, Senior Planner Will Groves noted that although the applicants' existing industrial operations on Tax Lots 102, 111, 114 and 301 are on land zoned RI, the only area of their operations subject to an LU Zone is that portion of Tax Lot 301 located east of the quarter section line. This difference in zoning is depicted on the diagram attached as Exhibit 1 to the applicants' burden of proof. As a result, on the portion of the applicants' existing operation not subject to the LU Zone, uses such as crushing are permitted outright. In addition, the LU Zone language applicable to the portion of Tax Lot 301 west of the quarter section line expressly states "uses are permitted outright and do not require site plan review." Mr. Groves and Mr. Dewey of Central Oregon LandWatch expressed concern that without additional land use review, the applicants' proposed uses on the subject property could be incompatible with nearby rural residential and farm uses. In response, the applicants proposed in their second supplemental burden of proof substitute language for the LU Zone that would replace the above-quoted language with the phrase "allowed pursuant to Chapter 18.100" — i.e., according to the provisions of the RI Zone. However, in an electronic mail message dated June 14, 2010 Mr. Dewey argued, and the Hearings Officer agrees, that the applicants' revised language is too broad in that it would permit uses beyond those justified by the proposed goal exception. In addition, Mr. Groves raised a concern that the applicants' proposed language would result in multiple LU Zones on the applicants' Deschutes Junction operation, each with different language. The Hearings Officer finds I cannot in this proceeding modify the existing LU Zone language applicable to the applicants' existing Deschutes Junction operations. And I find that to assure compatibility between the uses proposed on the subject property and the farm and rural residential uses on surrounding land, the LU Zone language applicable to the subject property should provide as follows: To ensure that the uses in the Rural Industrial Zone on Tax Lot 300 on Assessor's Map 16-12-26C-300 and the portions of Tax Lot 111 on Assessor's Map 16-12-26C- 111 located west of the Burlington Northern-Santa Fe railroad tracks and north of Nichols Market Road are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of minerals, subject to conditional use and site plan approval. 4-R Equipment, LLC PA-10-3, ZC-10-2 Page 11 of 44 (b) When a local government changes the types or intensities of uses or public facilities and services within an area approved as a "Reasons" exception, a new "Reasons" exception is required; FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not an area previously approved as a "reasons" exception area. c. OAR 660-004-020, Goal 2, Part II(c), Exception Requirements: (1) If a jurisdiction determines there are reasons consistent with OAR 660-04-022 to use resource lands for uses not allowed by the applicable Goal, the justification shall be set forth in the comprehensive plan as an exception. FINDINGS: The proposal's consistency with OAR 660-04-022 is discussed in detail in the findings below. As discussed in the findings above, the applicant has proposed the following language to be included in the comprehensive plan as justification for the requested exception: "To ensure that the uses in the Rural Industrial Zone on Tax Map 16-12-26C, Tax Lot 300 and portions of Tax Lot 110 east of the railroad, and Tax Map 16-12- 26A, Tax Lot 203 are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combing Zone, which will limit the uses to storage, crushing, processing, sale and distribution of minerals." (2) The four factors of Goal 2 Part II(c) required to be addressed when taking an exception to a Goal are: (a) "Reasons justify why the state policy embodied in the applicable goals should not apply": The exception shall set forth the facts and assumptions used as the basis for determining that a state policy embodied in a goal should not apply to specific properties or situations including the amount of land for the use being planned and why the use requires a location on resource land: FINDINGS: In order to demonstrate compliance with this administrative rule, the Hearings Officer finds the applicants must demonstrate or explain: (1) the basis for determining that state policy embodied in the applicable goals should not apply; (2) the amount of land that is required for the use being planned; and (3) why the use requires a location on resource land. Each of these factors is addressed separately in the findings below: 1. Basis for Determining State Policy Embodied in the Goals Should Not Apply. The state policy embodied in Goal 14, Urbanization, includes providing an orderly transition from rural to urban uses and assuring efficient use of the land. The subject property is considered "rural" because it is not located within an urban growth boundary (UGB) or an Urban Unincorporated 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 12 of 44 Area. Nevertheless, the subject property is adjacent to property that has been employed in industrial use for over fifty years and abuts the BNSF railroad tracks. In addition, the staff report states, and the Hearings Officer agrees, that based on its location and the soils study discussed in the findings above, the portion of the subject property between the COID canal and Highway 97 is an isolated and unproductive parcel that is unsuitable for any other reasonable use and would be used more efficiently in conjunction with the applicants' adjacent industrial operation. I find that under these circumstances the applicants' proposed plan amendment and zone change will result in a disorderly transition from rural to urban uses and, therefore, the policy embodied in Goal 14 will be met by the applicants' proposal. 2. The Amount of Land Required for the Use Being Planned. The applicants' burden of proof identified the following desired uses on the subject property: (1) material loading and staging area and a recycled rock dump area and crusher site; 2) railcar siding locations with increased utilization of the railroad for shipment; and 3) employee parking to improve safety by separating employee traffic from large trucks maneuvering to pick up and deliver material and provides additional space for stockpiling. The applicants' initial proposal included 31.4 acres desired for these uses. At the initial public hearing the Hearings Officer and Paul Dewey of Central Oregon LandWatch questioned whether the amount of property included in the proposal was excessive. In particular, I questioned whether inclusion of the strips of land east of the BNSF railroad tracks was reasonable in light of physical constraints and lack of access that would make use of the land for rail car sidings improbable. In response to these concerns, at the initial hearing the applicants stated they had no specific planned uses for the strips of land east of the railroad tracks and withdrew from their proposal. The Hearings Officer also questioned whether land in the southwestern corner of Tax Lot 300 was required inasmuch as the applicants' submitted "Concept Development Plan" for the subject property, included in the record as Exhibit 20 to the applicants' burden of proof, did not show this land being employed for any portion of the proposed rural industrial use. The applicants' supplemental burden of proof justified inclusion of the entire Tax Lot 300 as follows: "Applicant has provided a concept development plan that shows how the proposed 31.4 acre area will be utilized. It shows that there is sufficient room for a screening berm, material loading, staging, truck parking and fueling. There is room for an access road and a recycled rock dump area. There is some additional space for potential expansion, but not a great deal of unused area. Accordingly, this area is suitable or compatible with the proposed use. The proposed uses fit the site. Nothing in the criteria implies that an exact calculation of acreages would be required Rather, the term `appropriate' implies a practical approach, i.e., does the proposed use fit on the site and is the amount of land suitable for the proposed use? In this instance, the amount of land is appropriate. "(Emphasis added.) In response to the Hearings Officer's concerns, at the continued public hearing the applicants submitted a revised proposal, included as Exhibit 21 to the applicants' burden of proof, 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 13 of 44 excluding both the strips of land east of the BNSF railroad tracks, the western portion of Tax Lot 300 comprising the existing earthen berm along Highway 97, and the southwestern portions of Tax Lot 300 that constituted the "space for potential expansion." The applicants' second supplemental burden of proof states the area included in the revised proposal is appropriate for the proposed use for the following reasons: "The Applicant needs additional property for its operations due, in part, to the difference between the aggregate operation and the previous pumice operation. Applicant needs additional land to accomplish the same level of processing because the nature of aggregate processing and the market for aggregate. The waste rock recycling operation creates more aggregate and other mineral products. Because there are a variety of products created, separate storage piles are necessary. Conversely, pumice is uniform in size and material, requiring only one or two types of storage piles. Cascade Pumice, Inc., the prior owner of the property, had a direct purchaser for the pumice materials. Here, the market for aggregate is competitive and sporadic. Applicant needs room for 6-8 months of storage. The product is primarily sold during the construction season of spring and summer and is limited in the fall and winter. * * * The Applicant needs more space for storage and crushing. * * * Having employee parking removed from the area where trucks are loading and unloading will improve employee safety." The Hearings Officer agrees with the applicants that the area included in their revised proposal is "appropriate" for the proposed exception because the entirety of the revised subject property will be utilized, there is no land included for potential expansion of uses, and the existing berms — which the applicant has committed to retain on Tax Lot 300 — do not require rezoning from EFU to RI. 3. Why the Use Requires a Location on Resource Land. The record indicates the applicants moved all of their mineral crushing, processing, storage, sale and distribution operations to the former Cascade Pumice property at Deschutes Junction from the applicants' previous business site within the Bend city limits. The applicants argue expanding their existing business onto the subject EFU-zoned property is required for several reasons: (1) consolidation of their business operations improves their efficiency by, among other things, reducing the overall vehicle miles traveled in Central Oregon through a reduction in the need for empty truck trips between processing, distribution and sale sites; (2) consolidating their operations at the Deschutes Junction site reduces the number of truck trips through residential neighborhoods and the resulting conflict with residential uses; (3) the central location of the Deschutes Junction site, adjacent to Highway 97, facilitates easier access to construction sites; and (4) expanding the applicants' operations onto the subject property is required because it is adjacent to their existing operations, thus improving efficiency. The Hearings Officer agrees with the applicants' arguments. For the foregoing reasons, the Hearings Officer finds the applicants have demonstrated compliance with this "reasons" exception criterion. (b) Areas which do not require a new exception cannot 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 14 of 44 reasonably accommodate the use: (A) The exception shall indicate on a map or otherwise describe the location of possible alternative areas considered for the use, which do not require a new exception. The area for which the exception is taken shall be identified; FINDINGS: The applicants argue that alternative areas that do not require an exception are too far from the existing RI zoned property to reasonably accommodate the use. Exhibit 8 to the applicants' burden of proof shows the alternative sites considered, including surface mining and rural industrial properties in Deschutes County, discussed in the findings below. 1. Rural Industrial. Exhibit 8 shows there are only three RI -zoned properties in Deschutes County besides the applicants' existing Deschutes Junction location which is fully utilized. One RI -zoned parcel is located east of the Redmond airport and is owned and operated by the Oregon Department of Military. The second RI -zoned parcel totaling 13.4 acres is located south of Deschutes Junction and west of the railroad but currently is developed with dwellings. The third RI -zoned property is approximately 12 acres in size but is located near La Pine and is being used by a construction company. None of these RI -zoned properties is centrally located or has easy access to Highway 97. The staff report questions whether the RI -zoned Bend Auto Recyclers property constitutes a reasonable alternative. In response, the applicants' supplemental burden of proof states this property is 13 acres in size but is fully developed with its current use as an auto parts and wrecking yard. 2. Surface Mine. The record indicates there are a large number of SM -zoned sites within Deschutes County. However, the applicants argue SM -zoned properties cannot reasonably accommodate their proposed use because a substantial portion of the minerals to be processed by the applicants on the subject property are obtained from construction sites rather than from surface mines. In addition, they argue using SM -zoned property would be inefficient because it would require separate locations for processing, distribution, vehicle repair and other uses that can be consolidated on the subject property and the adjacent RI -zoned property. 3. Property Within Urban Growth Boundary. The applicants argue that their waste rock recycling is not a use compatible with uses typically found within a UGB because of noise, dust, and truck traffic associated with such a use. They also argue that since the waste rock the applicants recycle is located throughout Bend, Redmond and Prineville, a location in one of the Central Oregon UGBs would not be as efficient as the subject property because of its central location and easy access to Highway 97. The Hearings Officer concurs with the applicants' analysis that these alternative locations cannot reasonably accommodate the use for the reasons set forth in the findings above, therefore satisfying this exception approval criterion. 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 15 of 44 (B) To show why the particular site is justified, it is necessary to discuss why other areas which do not require a new exception cannot reasonably accommodate the proposed use. Economic factors can be considered along with other relevant factors in determining that the use cannot reasonably be accommodated in other areas. Under the alternative factor the following questions shall be addressed: (i) Can the proposed use be reasonably accommodated on nonresource land that would not require an exception, including increasing the density of uses on nonresource land? If not, why not? FINDINGS: The applicant's burden of proof identifies the following desired uses for the subject property: (1) material loading and staging areas and a recycled rock dump area and crusher site; (2) railcar siding locations with increased utilization of the railroad for shipment; and (3) employee parking to improve safety by separating employee traffic from large trucks maneuvering to pick up and deliver material and provides additional space for stockpiling. The applicants' initial proposal identified 31.4 acres for these uses. However, as discussed in the Findings of Fact above, the applicants' revised proposal eliminated the strips of land east of the BNSF railroad tracks as well as the western and southwestern portions of Tax Lot 300. Therefore, the proposed railroad siding uses are no longer included in the proposal. 1. Material loading and staging area, recycled rock dump area, and crusher site. 2. Employee Parking. a. Rural Industrial. As discussed above, the record indicates there are only four RI -zoned properties in addition to the applicants' current Deschutes Junction site. For the reasons discussed in those findings, incorporated by reference herein, the Hearings Officer finds none of these RI -zoned parcels can reasonably accommodate these proposed uses. b. Surface Mine. As also discussed above, there are many SM -zoned sites in Deschutes County. However, for the reasons set forth in the findings above, incorporated by reference herein, the Hearings Officer finds none of the SM -zoned sites reasonably can accommodate these proposed uses. c. Increased Density on Non -resource Lands. The applicants' revised "Conceptual Development Plan," Exhibit 21 to the applicants' burden of proof, shows that it is not possible to increase the density of uses on the applicants' existing RI -zoned Deschutes Junction site because the existing site is fully developed and there is not sufficient room for the proposed uses. For the foregoing reasons, the Hearings Officer finds the applicants have demonstrated 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 16 of 44 compliance with this exception approval criterion. (ii) Can the proposed use be reasonably accommodated on resource land that is already irrevocably committed to nonresource uses, not allowed by the applicable Goal, including resource land in existing rural centers, or by increasing the density of uses on committed lands? If not, why not? FINDINGS: The applicants argue, and the Hearings Officer agrees, that there are no "irrevocably committed" resource lands or rural centers that can reasonably accommodate the proposed use because this use has locational and operational requirements that cannot be met on such lands. In particular, none of the irrevocably committed resource lands is centrally located within the county, has sufficient size to accommodate the use, or has easy access to Highway 97. Moreover, as discussed above, the applicants' revised "Conceptual Development Plan, Exhibit 21 to the burden of proof, shows that it is not possible to increase the density of uses on the existing RI -zoned property because it is fully developed. For these reasons, I find the applicants have demonstrated compliance with this exception approval criterion. (iii) Can the proposed use be reasonably accommodated inside an urban growth boundary? If not, why not? FINDINGS: The record indicates the subject property is located approximately half way between Bend and Redmond and at least several miles from either city's UGB. The applicants argue that while there are industrial -zoned sites within these UGBs they cannot reasonably accommodate the proposed uses primarily because they are not large enough to allow both storage and processing of minerals in a manner that would permit the applicants to adequately mitigate dust, noise and other potential impacts on surrounding urban -density lands. In addition, the applicants argue economic factors can and should be considered under this rule. They argue that sites within UGBs would not be suitable from an economic standpoint because they would be more costly to acquire and would increase transportation costs over the subject property's more central location within the county. The Hearings Officer agrees with the applicants' analysis and finds they have demonstrated compliance with this criterion. (iv) Can the proposed use be reasonably accommodated without the provision of a proposed public facility or service? If not, why not? FINDINGS: The Hearings Officer finds this criterion is not applicable because no public facilities or services are proposed. (C) The alternative areas standard can be met by a 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 17 of 44 broad review of similar types of areas rather than a review of specific alternative sites. Initially, a local government adopting an exception need assess only whether those similar types of areas in the vicinity could not reasonably accommodate the proposed use. Site specific comparisons are not required of a local government taking an exception, unless another party to the local proceeding can describe why there are specific sites that can more reasonably accommodate the proposed use. A detailed evaluation of specific alternative sites is thus not required unless such sites are specifically described with facts to support to support the assertion that the sites are more reasonable by another party during the local exceptions proceeding. FINDINGS: The applicants' burden of proof does not include a detailed evaluation of specific alternative sites beyond those discussed in the findings above. The applicants argue, and the Hearings Officer agrees, that their burden of proof adequately assesses similar types of areas in the county, as required by this section, in order to determine if they could reasonably accommodate the proposed uses. c) The long-term environmental, economic, social and energy consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located in other areas requiring a Goal exception. The exception shall describe the characteristics of each alternative areas considered by the jurisdiction for which an exception might be taken, the typical advantages and disadvantages of using the area for a use not allowed by the Goal, and the typical positive and negative consequences resulting from the use at the proposed site with measures designed to reduce adverse impacts. A detailed evaluation of specific alternative sites is not required unless such sites are specifically described with facts to support the assertion that the sites have significantly fewer adverse impacts during the local exceptions proceeding. The exception shall include the reasons why the consequences of the use at the chosen site are not significantly more adverse than would typically result from the same proposal being located in areas requiring a goal exception other than the 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 18 of 44 proposed site. Such reasons shall include but are not limited to, the facts used to determine which resource land is least productive; the ability to sustain resource uses near the proposed use; and the long-term economic impact on the general area caused by irreversible removal of the land from the resource base. Other possible impacts include the effects of the proposed use on the water table, on the costs of improving roads and on the costs to special service districts; FINDINGS: 1. Environmental. The applicants argue, and the Hearings Officer agrees, that the subject property's poor quality soils and lack of irrigation make it unsuitable for agriculture. I agree with the applicants that utilizing the subject property for the proposed use would have much lower environmental impacts than would result from utilizing a remote property for the proposed use, due to reduced vehicle miles traveled from a centralized operation. Moreover, I find the environmental impacts from the proposed use would be, like those from the historic use on adjacent property, substantially limited given the subject property's location near Highway 97, the BNSF railroad tracks and other industrial property, and at least 500 feet from the nearest farm and rural residential uses. Jan Elrod, who owns and operates a 33 -acres farm east across the BNSF railroad tracks from the applicants' current operation and the subject property, expressed concerns about impacts on air quality from the applicants' existing operations and potential expansion of those operations onto the subject property, particularly due to exhaust from idling trucks. Ms. Elrod supported the applicants' proposal to move the truck parking onto the subject property because it would increase the distance between the truck parking area and her property. The Hearings Officer is aware that part of the applicants' operations — i.e., crushing — is subject to DEQ's air quality standards and an Air Contaminant Discharge Permit issued by DEQ, although I am not certain exhaust from idling trucks is subject to DEQ's air quality standards. Nevertheless, I find that the applicants' proposal has the potential to reduce or eliminate impacts on Ms. Elrod's property by moving the heavy truck and equipment parking and loading areas, as well as its crushing operation, farther to the southwest and away from Ms. Elrod's farm. In addition, as discussed elsewhere in this decision, I have found the LU Zone for the subject property will include language providing that uses on the property will be subject to conditional use and site plan review to assure compatibility with nearby farm and rural residential uses. 2. Economic. The applicants argue, and the Hearings Officer agrees, that the subject property has very limited economic value with its current EFU zoning because it cannot be put into agricultural use due to its poor quality soils, lack of irrigation, and physical isolation. I concur with the applicants that expansion of their operations onto the subject property would permit consolidation creating greater economic value and reducing transportation costs. 3. Social. The applicants moved their business operations from the Bend UGB to Deschutes Junction site in order to eliminate impacts on urban uses. The record indicates the Tioga Mobile 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 19 of 44 Home Park, east of the BNSF railroad tracks, is located within 500 feet of the subject property at its closest point. The applicants' burden of proof argues, and the Hearings Officer agrees, that allowing the proposed expansion of the applicants' Deschutes Junction operations onto the subject property will make it possible for the applicants to move their crushing equipment and operation 500 feet farther away from the mobile home park. 4. Energy. The applicants argue, and the Hearings Officer agrees, that the applicants' proposal will have a positive impact on energy use and conservation by reducing truck traffic and fuel consumption by consolidation of the applicants' operations at the Deschutes Junction site. h can be used for shipping fuels and products. For the foregoing reasons, the Hearings Officer finds the applicants have demonstrated their revised proposal satisfies this exception approval criterion. (d) The proposed uses are compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts. The exception shall describe how the proposed use will be rendered compatible with adjacent land uses. The exception shall demonstrate that the proposed use is situated in such a manner as to be compatible with surrounding natural resource and resource management or production practices. "Compatible" is not intended as an absolute term meaning no interference or adverse impacts of any type with adjacent uses. FINDINGS: As discussed above, the applicants' revised proposal identifies the proposed uses as: 1) material loading and staging area, recycled rock dump area, and crusher site; and 2) employee parking. The staff report states, and the Hearings Officer agrees, that these uses could potentially produce adverse noise, dust, visual, and traffic impacts on nearby commercial, agricultural and residential uses. The applicants propose to mitigate impacts from the crushing and processing of other minerals by using water trucks for dust suppression. The applicants argue that changing the zoning on the subject property would serve to mitigate impacts on the nearby mobile home park and rural residential uses south and east of the subject property because it would allow the applicants to move both the crushing operation and the heavy truck and equipment parking and loading area farther away from these residential uses. In addition, as discussed in the findings above, I have found the LU Zone language applicable to the subject property will provide that uses on the property are subject to conditional use and site plan review. Ms. Elrod and Mr. Dewey also expressed concern that approval of the applicants' proposal could set a precedent for further expansion of industrial uses at Deschutes Junction, particularly inasmuch as the county is considering extending 19th Street south from Redmond to Deschutes Junction. The Hearings Officer finds any future rezoning of land in the Deschutes Junction area from EFU to RI would require another plan amendment, zone change and goal exceptions, approval of which would depend on whether a future applicant demonstrated compliance with 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 20 of 44 the applicable approval criteria, without regard to approval of the subject proposal. Ms. Elrod also argued the applicants and other industrial operators at Deschutes Junction are not maintaining their sites in an aesthetically pleasing manner, resulting in potential devaluation of her property and others in the vicinity. The Hearings Officer appreciates Ms. Elrod's concerns but finds I have no authority in this proceeding to impose site planning or maintenance requirements on existing business operations. For the foregoing reasons, the Hearings Officer finds the proposed uses are or will be compatible with other adjacent uses. (4) For the expansion of an unincorporated community defined under OAR 660-022-0010. The exception requirements of subsections (2)(b), (c), and (d) of this rule are modified to also include the following: FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property and the adjacent RI -zoned property do not constitute an "unincorporated community" under OAR 660-022-0010(10)(e) and Section 18.04.030 of the county code.' p d. OAR 660-04-022, Reasons Necessary to Justify an Exception Under Goal 2, Part II(c): An exception under Goal 2, Part II(c) can be taken for any use not allowed by the applicable goal(s). The types of reasons that may or may not be used to justify certain types of uses not allowed on resource lands are set forth in the following sections of this rule: (3) Rural Industrial Development: For the siting of industrial development on resource land outside an urban growth boundary, appropriate reasons and facts include but are not limited to the following: (a) The use is significantly dependent upon a unique resource located on agricultural or forest land. Examples of such resources and resource sites include geothermal wells, mineral or aggregate deposits, water reservoirs, natural features, or river or ocean ports; or (emphasis added) 5 "Unincorporated community" is defined in Section 18.04.030 as "an unincorporated community having a zoning designation under DCC Title 18 of Urban Unincorporated Community, Rural Service Center (designated under OAR chapter 660, division 22 and otherwise), Resort Community or Rural Community." This definition is essentially the same as that in OAR 660-022-0010(e). 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 21 of 44 FINDINGS: The applicants argue the uses proposed for the subject property are dependent on two unique resources: 1) the Deschutes Junction interchange with Highway 97, a state highway constructed for heavy traffic; and 2) the BNSF railroad tracks — both of which are located adjacent to EFU-zoned land. The applicants note these two facilities, like a river or ocean port, allow the transport of minerals and mineral products. However, as discussed in the findings above, the applicants revised their proposal to eliminate the property located east of the BNSF railroad tracks. Therefore, the Hearings Officer finds the "unique resource" subject to analysis under this paragraph is Highway 97 and the Deschutes Junction interchange. The applicants argue, and the Hearings Officer agrees, that the Deschutes Junction interchange — an above -grade full "cloverleaf' interchange -- and Highway 97 constitute unique and important resources upon which the applicants' proposed uses are dependent because the majority of mineral materials processed by the applicants' businesses are transported to and from the site by truck. (b) The use cannot be located inside an urban growth boundary due to impacts that are hazardous or incompatible in densely populated areas; or FINDINGS: As discussed the findings above, incorporated by reference herein, the Hearings Officer has found the proposed uses cannot reasonably be located within a UGB because the nearest UGB is several miles away, and the nature of the proposed industrial uses would make them incompatible with residential and other urban uses due to noise, dust and heavy truck traffic. (c) The use would have a significant comparative advantage due to its location (e.g. near existing industrial activity, an energy facility, or products available from other rural activities), which would benefit the county economy and cause only minimal loss of productive resource lands. Reasons for such a decision should include a discussion of the lost resource productivity and values in relation to the county's gain from the industrial use, and the specific transportation and resource advantages which support the decision. FINDINGS: 1. Location. The applicants argue, and the Hearings Officer agrees, that the subject property has a significant comparative advantage over alternative sites due to its central location within the county, its location adjacent to Highway 97 and the Deschutes Junction interchange, and the proximity of existing RI -zoned land developed with the applicants' existing industrial operations. 2. Benefit to County Economy. The applicants argue, and the Hearings Officer agrees, the proposed industrial use on the subject property will provide a benefit to the county's economy by allowing the applicants to consolidate their existing business operations on one site, improving 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 22 of 44 their efficiency to provide products and services to the Central Oregon community. The applicants note their businesses provide family wage jobs in a long-term, sustainable industry serving the construction and transportation sectors of the economy. The applicants also note their RI -zoned property has a higher assessed value and is taxed at a higher rate than EFU-zoned property and therefore provides greater tax revenue to the county. 3. Minimal Loss of Productive Resource Lands. The record indicates the subject property never has been farmed and never has had irrigation water rights. The applicants' submitted soils study shows the subject property is composed primarily of Class VII and VIII soils which are not considered agricultural. For these reasons, the applicants argue, and the Hearings Officer agrees, that rezoning the subject property from EFU to RI would not result in the loss of productive resource lands. 3. Division 14, Application of the Statewide Planning Goals to Newly Incorporated Cities, Annexation, and Urban Development on Rural Lands a. OAR 660-014-0040, Establishment of New Urban Development on Undeveloped Rural Lands (1) As used in this rule, "undeveloped rural land" includes all land outside of acknowledged urban growth boundaries except for rural areas committed to urban development. This definition includes all resource and nonresource lands outside of urban growth boundaries. It also includes those lands subject to built and committed exceptions to Goals 3 or 4 but not developed at urban density or committed to urban level development. FINDINGS: The Oregon Court of Appeals held in Vincep v. Yamhill County, 215 OR App. 414, (2007) that the applicable criteria for a "reasons" exception to Goal 14 are those set forth and discussed in the findings below. (2) A county can justify an exception to Goal 14 to allow establishment of new urban development on undeveloped rural land. Reasons that can justify why the policies in Goals 3, 4, 11 and 14 should not apply can include but are not limited to findings that an urban population and urban levels of facilities and services are necessary to support an economic activity that is dependent upon an adjacent or nearby natural resource. FINDINGS: The applicants argue, and the Hearings Officer agrees, that an exception to Goal 14 is justified for the applicants' proposal for three reasons: (1) the proposed use is necessary to support the economic viability of the applicants' existing industrial use at Deschutes Junction by providing additional space for storage, crushing, processing, distribution and sale of minerals, and employee parking; (2) the proposed use needs to be centrally located within the county because the natural resource on which it depends — minerals -- is found throughout the county; 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 23 of 44 and (3) the proposed use is locationally dependent because of its proximity to Highway 97 and its Deschutes Junction interchange. (3) To approve an exception under section (2) of this rule, a county must also show: (a) That Goal 2, Part II (c)(1) and (c)(2) are met by showing that the proposed urban development cannot be reasonably accommodated in or through expansion of existing urban growth boundaries or by intensification of development in existing rural communities; FINDINGS: The Redmond and Bend UGBs are located several miles from the subject property. And as discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the applicants' proposed uses are locationally dependent due to the location of the applicants' existing industrial operations as well as Highway 97 and the Deschutes Junction interchange, and because the applicants' operations need to be centrally located to process minerals coming from all parts of the county. In addition, I concur with the applicants that the dust, noise and truck traffic associated with the proposed use makes it incompatible with typical urban uses, whereas at the proposed location such impacts on the large subject property and adjacent RI -zoned property can be mitigated through buffering, screening and dust suppression. As discussed in the findings above, the applicants moved their business operations from within the Bend UGB to the Deschutes Junction site in part to remove potentially incompatible uses from the urban area. The staff report questioned why the applicants did not include in their submitted burden of proof statement any documentation or argument that the proposed development on the subject property could not be accommodated by intensification of development in existing rural communities of Tumalo or Terrebonne. In response, the applicants' supplemental burden of proof states in relevant part: "An aerial photo of the community of Tumalo (attached as Exhibit 17) shows that the area included in the rural community is completely developed. The only possible location for an intense industrial use would be the property currently owned and operated by Knife River. Knife River is a business competitor of the Applicant. Use of a competitor's property is not feasible. An intensification of use at a remote site would not allow the Applicant to most efficiently utilize a centralized processing location. Similarly, the rural community of Terrebonne is substantially developed Moreover, as shown by the aerial photograph attached as Exhibit 18 the Terrebonne area has been substantially developed with residences. Placing an industrial use in this setting would cause substantially greater impacts. It is also the gateway to the Smith Rock recreational area and placing a large industrial site with haul trucks would create unacceptable social and environmental impacts. Terrebonne is not centrally located and would not provide the same efficiencies as the Deschutes Junction site." 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 24 of 44 The Hearings Officer agrees with the applicants' reasoning and finds neither expansion of the Redmond or Bend UGB, nor intensification of uses within Tumalo or Terrebonne, would accommodate the proposed use. (b) That Goal 2, Part II (c)(3) is met by showing that the long-term environmental, economic, social and energy consequences resulting from urban development at the proposed site with measures designed to reduce adverse impacts are not significantly more adverse than would typically result from the same proposal being located on other undeveloped rural lands, considering: (A) Whether the amount of land included within the boundaries of the proposed urban development is appropriate, and FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the applicants have demonstrated their revised proposal includes an appropriate amount of land for the proposed rural industrial development. (B) Whether urban development is limited by the air, water, energy and land resources at or available to the proposed site, and whether urban development at the proposed site will adversely affect the air, water, energy and land resources of the surrounding area. FINDINGS: The Hearings Officer finds the applicants' proposal is not limited by the air, water, energy and land resources at or available on the subject property. The applicants argue their proposed use also will not adversely affect the air, water, energy and land resources at or available to the subject property. The applicants' revised proposal identifies the proposed uses as: (1) material loading and staging area, recycled rock dump area, and crusher site; and (2) employee parking. The Hearings Officer has found these uses have the potential to create adverse noise, dust, visual, and traffic impacts on nearby commercial, agricultural and residential uses. The applicants have proposed to mitigate impacts from its crushing and processing operations by using water trucks for dust suppression and by moving the crushing operation farther from nearby farm and residential uses including the Tioga Mobile Home Park. In addition, the applicants' crushing operations are subject to DEQ's air quality standards. Finally, I have found the LU Zone for the subject property will require conditional use and site plan review approval for the proposed uses on the subject property. For these reasons, I find the applicants' proposal satisfies or will satisfy this criterion. (c) That Goal 2, Part II (c)(4) is met by showing that the proposed urban uses are compatible with adjacent uses or will be so rendered through measures designed to reduce adverse impacts considering: 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 25 of 44 (A) Whether urban development at the proposed site detracts from the ability of existing cities and service districts to provide services; and FINDINGS: The Hearings Officer finds the applicants' proposal will not detract from the ability of Redmond and Bend to provide services because municipal urban services are not provided to the subject property. (B) Whether the potential for continued resource management of land at present levels surrounding and nearby the site proposed for urban development is assured. FINDINGS: The subject property is bordered by Highway 97 on the west, the Deschutes Junction interchange and the applicants' existing industrial operations on the north, the BNSF railroad tracks on the east, and EFU-zoned land on the south that is owned by the City of Bend and is not engaged in farm use. Across the railroad tracks to the east are the Tioga Mobile Home Park, rural residential uses and small- to medium -scale farms. The Hearings Officer finds the applicants' proposal will not interfere with potential management of the EFU-zoned land to the south inasmuch as it is not, and apparently never has been, engaged in farm use and has no irrigation water rights. With respect to the farm and rural residential uses occurring east of the railroad tracks, I have found expanding the applicants' existing industrial operations onto the subject property will allow the applicants to move their crushing operation and heavy truck and equipment parking areas farther from these potentially incompatible uses, providing significant buffering. In addition, the applicants have proposed to mitigate impacts from the crushing and processing of other minerals by using water trucks for dust suppression. For these reasons, I find the applicants' proposal satisfies or will satisfy this criterion. (d) That an appropriate level of public facilities and services are likely to be provided in a timely and efficient manner; and FINDINGS: The Hearings Officer finds the subject property is or can be served by an appropriate level of public facilities in light of the existing industrial development on the applicants' adjacent property. The record indicates water is provided by Avion Water Company, power is provided by Pacific Power, sewage disposal is provided through a septic system on the nearby Tax Lot 102, and the property has approved vehicle access from the Deschutes Market/Tumalo Road overpass. (e) That establishment of an urban growth boundary for a newly incorporated city or establishment of new urban development on undeveloped rural land is coordinated with comprehensive plans of affected jurisdictions and consistent with plans that control the area proposed for new urban development. 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 26 of 44 FINDINGS: The Hearings Officer finds the applicants' proposal will not affect any UGBs or cities because of its location several miles from the nearest incorporated cities, and therefore no coordination with the Redmond or Bend comprehensive plans is required. (4) Counties are not required to justify an exception to Goal 14 in order to authorize industrial development, and accessory uses subordinate to the industrial development, in buildings of any size and type, in exception areas that were planned and zoned for industrial use on January 1, 2004, subject to the territorial limits and other requirements of ORS 197.713 and 197.714. FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject property is not located in an already -designated exception area. For the foregoing reasons, the Hearings Officer finds the applicants have demonstrated their proposed "reasons" exceptions to Goals 3 and 14 are justified and satisfy all applicable exception approval criteria. PLAN AMENDMENT 4. Division 12, Transportation Planning Rule a. OAR 660-012-0060, Plan and Land Use Regulation Amendments (1) 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 27 of 44 Where an amendment to a functional plan, an acknowledged comprehensive plan, or a land use regulation would significantly affect an existing or planned transportation facility, the local government shall put in place measures as provided in section (2) of this rule to assure that allowed land uses are consistent with the identified function, capacity, and performance standards (e.g. level of service, volume to capacity ratio, etc.) of the facility. A plan or land use regulation amendment significantly affects a transportation facility if it would: (a) Change the functional classification of an existing or planned transportation facility (exclusive of correction of map errors in an adopted plan); (b) Change standards implementing a functional classification system; or (c) As measured at the end of the planning period identified in the adopted transportation system plan: (A) Allow land uses or levels of development that would result in types or levels of travel or access that are inconsistent with the functional classification of an existing or planned transportation facility; (B) Reduce the performance of an existing or planned transportation facility below the minimum acceptable performance standard identified in the TSP or comprehensive plan; or (C) Worsen the performance of an existing or planned transportation facility that is otherwise projected to perform below the minimum acceptable performance standard identified in the TSP or comprehensive plan. (2) Where a local government determines that there would be a significant effect, compliance with section (1) shall be accomplished through one or a combination of the following: (a) Adopting measures that demonstrate allowed land uses are consistent with the planned function, capacity, and performance standards of the transportation facility. (b) Amending the TSP or comprehensive plan to provide transportation facilities, improvements or services adequate to support the proposed land uses consistent with the requirements of this division; such amendments shall include a funding plan or mechanism consistent with section (4) or include an amendment to the transportation finance plan so that the facility, improvement, or service will be provided by the end of the planning period. (c) Altering land use designations, densities, or design requirements to reduce demand for automobile travel and meet travel needs through other modes. (d) Amending the TSP to modify the planned function, capacity or performance standards of the transportation facility. (e) Providing other measures as a condition of development or through a development agreement or similar funding method, including transportation system management measures, demand management or minor 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 28 of 44 (3) 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 29 of 44 transportation improvements. Local governments shall as part of the amendment specify when measures or improvements provided pursuant to this subsection will be provided. Notwithstanding sections (1) and (2) of this rule, a local government may approve an amendment that would significantly affect an existing transportation facility without assuring that the allowed land uses are consistent with the function, capacity and performance standards of the facility where: (a) The facility is already performing below the minimum acceptable performance standard identified in the TSP or comprehensive plan on the date the amendment application is submitted; (b) In the absence of the amendment, planned transportation facilities, improvements and services as set forth in section (4) of this rule would not be adequate to achieve consistency with the identified function, capacity or performance standard for that facility by the end of the planning period identified in the adopted TSP; (c) Development resulting from the amendment will, at a minimum, mitigate the impacts of the amendment in a manner that avoids further degradation to the performance of the facility by the time of the development through one or a combination of transportation improvements or measures; (d) The amendment does not involve property located in an interchange area as defined in paragraph (4)(d)(C); and (e) For affected state highways, ODOT provides a written statement that the proposed funding and timing for the identified mitigation improvements or measures are, at a minimum, sufficient to avoid further degradation to the performance of the affected state highway. However, if a local government provides the appropriate ODOT regional office with written notice of a proposed amendment in a manner that provides ODOT reasonable opportunity to submit a written statement into the record of the local government proceeding, and ODOT does not provide a written statement, then the local government may proceed with applying subsections (a) through (d) of this section. FINDINGS: As noted in the Findings of Fact above, ODOT did not comment on the applicants' proposal. In his comments on the applicants' initial proposal, the county's Senior Transportation Planner Peter Russell stated the applicants' submitted traffic information did not sufficiently address this Transportation Planning Rule (TPR) or the provisions of Section 17.15.116 of the Deschutes County Code. Mr. Russell recommended that the applicants be required to submit documentation concerning: (1) the number of vehicle trips generated by uses permitted on the subject property under its current EFU zoning; (2) the estimated number of trips to be generated by the uses proposed under the requested RI zoning; (3) an operational analysis of the function of the Deschutes Junction interchange ramps under the current EFU zoning both now and at the end of the required planning horizon; and (4) an operational analysis of the function of the Deschutes Junction interchange with the requested RI zoning both now and at the end of the required planning horizon. In response to these comments, the applicants submitted a traffic impact analysis dated May 11, 2010, prepared by Group Mackenzie and included in the record as Exhibit 19 to the applicants' burden of proof (hereafter "traffic study"). The traffic study analyzed existing conditions and the functions of four intersections identified by the road department that potentially are affected by traffic generated by industrial development at the applicants' Deschutes Junction site: • site access/Nichols Market Road; • Tumalo Road/Tumalo Place; • Greystone Lane/Tumalo Road; and • 19th Street/Tumalo Road. The traffic study analyzed the function of each of these intersections under current conditions and in 2016 and 2025 with development under both EFU and RI zoning, and concluded all four intersections currently operate at acceptable levels of service with existing traffic from the applicants' existing industrial operations, and will continue to do so in 2016 and 2025 with the addition of traffic generated by expansion of those uses onto the subject property. The traffic study concluded no mitigation measures are required to assure the continued acceptable functioning of these facilities. Based on the applicants' submitted traffic study, the Hearings Officer finds the proposed plan amendment and zone change from EFU to RI will not significantly affect a transportation facility and therefore is consistent with the TPR. 5. OAR 660, Division 15, Statewide Planning Goals and Guidelines FINDINGS: Goal 1, Citizen Involvement. The Hearings Officer finds the applicants' proposed plan amendment satisfies this goal because the Planning Division provided public notice of the applicants' proposal through individual mailed notice to affected property owners, posting of the 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 30 of 44 subject property with a notice of proposed land use action sign, and publishing notice of the initial public hearing in the Bend "Bulletin" newspaper. In addition, two public hearings will be held before the proposed plan amendment could be approved. Goal 2, Land Use Planning. The Hearings Officer finds the proposed plan amendment satisfies this goal because the proposal has been reviewed in accordance with the county's acknowledged planning review processes, and will be subject to at least two public hearings, and no exceptions to Goal 2 are proposed or required. Goal 3, Agricultural Lands. The Hearings Officer finds the applicants' submitted soils analysis demonstrates the property is composed predominately of Class VII and VIII soils which are not considered agricultural soils. And as discussed in the findings above, the Hearings Officer has found the subject property is not suitable for farm use because of the poor quality soils, lack of irrigation, and physical isolation from most other EFU-zoned land, and the fact that the abutting EFU-zoned land owned by the City of Bend is not and never has been engaged in farm use. Therefore, I have found the applicants' proposal is consistent with Goal 3. Goal 4, Forest Lands. The Hearings Officer finds this goal is not applicable because the subject property is not zoned or designated for forest use. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The Hearings Officer finds this goal is not applicable because the subject property does not contain resources listed in the county's inventory of Goal 5 resources. Goal 6, Air, Water and Land Resources Quality. As discussed in the findings above, the applicants have requested the proposed plan amendment in order to utilize the subject property in conjunction with their adjacent Deschutes Junction industrial site for a materials loading and staging area, recycled rock dump area, and crusher site, as well as employee parking. The Hearings Officer has found these uses have the potential to produce dust and therefore affect air quality in the vicinity. However, I have found the applicants' proposed mitigation of these impacts will assure its operations do not adversely affect air quality, consistent with this goal. In addition, I have found the LU Zone for the subject property will provide that the uses on the subject property will require conditional use and site plan approval to assure compatibility with nearby farm and residential uses. Goal 7, Areas Subject to Natural Disasters and Hazards. The Hearings Officer finds this goal is not applicable because the subject property is not in an area subject to special natural disasters or hazards. Goal 8, Recreational Needs. The Hearings Officer finds this goal is not applicable because the proposed plan amendment and zone change do not reduce or eliminate any opportunities for recreational facilities either on the subject property or in the surrounding area. Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the state for a variety of economic activities. The Hearings Officer finds the applicants' proposed plan amendment is consistent with this goal because redesignating and rezoning the subject 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 31 of 44 property from EFU to RI will allow it to be employed in an industrial use in conjunction with the applicants' existing industrial operations at Deschutes Junction. Goal 10, Housing. The Hearings Officer finds this goal is not applicable because the proposed plan amendment will not affect existing or needed housing. Goal 11, Public Facilities and Services. This goal requires planning for public services, including public services in rural areas, and generally has been held to prohibit extension of urban services such as sewer and water to rural lands outside urban growth boundaries. The Hearings Officer finds this goal is not applicable because the proposed plan amendment will not result in the extension of urban services. Goal 12, Transportation. As discussed in the findings above, based on the applicants' submitted traffic analysis the Hearings Officer has found the applicants' proposal will not significantly affect a transportation facility, thereby complying with the TPR and Goal 12. Goal 13, Energy Conservation. Goal 13 is to conserve energy. The Hearings Officer finds the applicants' proposed plan amendment satisfies this goal because it will allow the applicants to consolidate their existing industrial operations at the Deschutes Junction site, a central location close to Highway 97, resulting in a reduction of vehicle trips, trip lengths, and fuel consumption. Goal 14, Urbanization. As discussed in the findings above, incorporated by reference herein, the Hearings Officer has found the applicants' proposed plan amendment is consistent with Goal 14 because it will allow the applicants' existing industrial operations to be consolidated and made more efficient by utilizing the subject property which consists of non-agricultural, unproductive land, and will result in an orderly transition from rural to urban uses. Goals 15 through 19. The Hearings Officer finds these goals, which address river, ocean, and estuarine resources, are not applicable to the applicants' proposal because the subject property is not located in or adjacent to any such areas or resources. ZONE CHANGE B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.136, Amendments a. Section 18.136.020, Rezoning Standards The applicant for a quasi-judicial rezoning must establish that the public interest is best served by rezoning the property. Factors to be demonstrated by the applicant are: A. That the change conforms with the Comprehensive Plan, and the change is consistent with the Plan's introductory statement and goals. 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 32 of 44 FINDINGS: In numerous previous decisions this Hearings Officer has found this paragraph establishes two requirements: (1) that the zone change conforms with plan; and (2) that it is consistent with the plan's introductory statement and the plan's goals. Each of these requirements is discussed below. 1. Conformance with Comprehensive Plan. The applicants have requested approval of a plan amendment to redesignate the subject property from Agriculture to Rural Industrial, and therefore the proposed rezoning from EFU-TRB to RI will be consistent with its proposed new plan designation. 2. Consistency with the Plan's Introductory Statement and Goals. In several previous decisions, including this Hearings Officer 2008 decision to modify the LU Zone for the applicants' existing Deschutes Junction industrial operation ((PA -08-6, ZC-08-6), I have made the following findings concerning this requirement: "Comprehensive plan statements, goals and policies typically are not intended to, and do not, constitute mandatory approval criteria for quasi-judicial land use permit applications. Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004). There, LUBA held: 'As intervenor correctly points out, local and statutory requirements that land use decisions be consistent with the comprehensive plan do not mean that all parts of the comprehensive plan necessarily are approval standards. [Citations omitted.] Local governments and this Board have frequently considered the text and context of cited parts of the comprehensive plan and concluded that the alleged comprehensive plan standard was not an applicable approval standard. [Citations omitted.] Even if the comprehensive plan includes provisions that can operate as approval standards, those standards are not necessarily relevant to all quasi-judicial land use permit applications. [Citation omitted.] Moreover, even if a plan provision is a relevant standard that must be considered, the plan provision might not constitute a separate mandatory approval criterion, in the sense that it must be separately satisfied, along with any other mandatory approval criteria, before the application can be approved. Instead, that plan provision, even if it constitutes a relevant standard, may represent a required consideration that must be balanced with other relevant considerations. [Citations omitted.]' LUBA went on to hold in Save Our Skyline that it is appropriate to `consider first whether the comprehensive plan itself expressly assigns a particular role to some or all of the plan's goals and policies. ' Section 23.08.020 of the county's comprehensive plan provides as follows: 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 33 of 44 The purpose of the Comprehensive Plan for Deschutes County is not to provide a 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. Part of that process is identification of an appropriate land use plan, which is then interpreted to make decisions about specific sites (most often in zoning and subdivision administration) but the plan must also consider the sociological, economic and environmental consequences of various actions and provide guidelines and policies for activities which may have effects beyond physical changes of the land. (Emphasis added.) The Hearings Officer finds the above -underscored language strongly suggests the county's plan statements, goals and policies are not intended to establish approval standards for quasi-judicial land use permit applications. In Bothman v. City of Eugene, 51 Or LUBA 426 (2006), LUBA found it appropriate also to review the language of specific plan policies to determine whether and to what extent they may in fact establish decisional standards. The policies at issue in that case included those ranging from aspirational statements to planning directives to the city to policies with language providing `guidance for decision-making' with respect to specific rezoning proposals. In Bothman LUBA concluded the planning commission erred in not considering in a zone change proceeding a plan policy requiring the city to `[r]ecognize the existing general office and commercial uses located * * * [in the geographic area including the subject property] and discourage future rezonings of these properties. ' LUBA held that: `* * * even where a plan provision might not constitute an independently applicable mandatory approval criterion, it may nonetheless represent a relevant and necessary consideration that must be reviewed and balanced with other relevant considerations, pursuant to ordinance provisions that require * * * consistency with applicable plan provisions. '(Emphasis added.) The county's comprehensive plan includes a large number of goals and policies. The applicant's burden of proof addresses goals for rural development, economy, transportation, public facilities, recreation, energy, natural hazards, destination resorts, open spaces, fish and wildlife, and forest lands. The Hearings Officer finds these goals are aspirational in nature and therefore are not intended to create decision standards for the proposed zone change." The Hearings Officer adheres to these findings here, and again finds the above -referenced introductory statements and goals are not approval criteria for the proposed plan amendment and zone change. Nevertheless, depending upon their language, some plan provisions may require 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 34 of 44 "consideration" even if they are not applicable approval criteria. Save Our Skyline v. City of Bend, 48 Or LUBA 192, 209 (2004). Staff and the applicant have identified the following plan goals and policies as potentially requiring such consideration. Chapter 23.120. GOAL EXCEPTION STATEMENT Section 23.120.110, Rural Industrial Zone In conjunction with approval of PA -08-6, ZC-08-6 for that certain property described in Exhibit "C" and depicted in Exhibit "D" attached to Ordinance 2009-007 and incorporated by reference herein, an "irrevocably committed" exception to Statewide Planning Goal 3, Agricultural Lands, and a reasons exception to Goal 14 was taken to allow for the subject comprehensive plan and zone change on agricultural land. The plan amendment and zone change will allow Rural Industrial plan and zoning designation with a Limited Use Combining Zone for the specific use of storage, crushing, processing, sale and distribution of minerals. Reasons justifying why the state policy embodied in Goal 3 should not apply in this situation are set forth in Exhibit "E" to Ordinance 2009-007, which findings are incorporated herein. FINDINGS: This section applies to Tax Lot 301 which is part of the RI -zoned land north and east of the subject property on which the applicants' existing industrial operations are located — i.e., the Deschutes Junction RI Zone. The Hearings Officer finds this section must be amended to reflect approval of the applicants' proposed plan amendment and zone change and the reasons justifying the exception to Goal 14 for the proposal. In their supplemental burden of proof the applicants suggested that the following language for the exception statement required by this section be added to Section 23.120.110: "In conjunction with approval of PA -10-3 and AC -10-2 for that certain property described in Exhibit 'F' and depicted in Exhibit `G' attached to Ordinance 2010 - and incorporated by reference herein, a reasons exception to Goal 14 was taken to allow the Comprehensive Plan and Zone Change on the subject property. The Plan Amendment and Zone Change will allow Rural Industrial plan and zoning designation with a Limited Use Combining Zone for the specific use of storage, crushing, processing, sale and distribution of minerals. Reasons justfing why the state policy embodied in Goal 14 should not apply in this situation are set froth in Exhibit 'H' to Ordinance 2010- which findings are incorporated herein." The Hearings Officer finds this amendment language is appropriate. Chapter 23.24, RURAL DEVELOPMENT Section 23.24.030, Policies 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 35 of 44 Rural Development policies are meant to pertain to all non -urban areas (areas outside urban growth boundaries) and are the basic policies to be followed in guiding rural growth. Specific resource or management policies from other chapters shall augment these policies so that the plan must be viewed as an integrated whole rather than a series of individual chapters. • Residential/recreational development. * * * 11. Certain industrial uses, such as research and development facilities (requiring quiet and open surroundings), wrecking or salvage yards and manufacturers of hazardous materials (requiring long distances between the plant and neighbors) are more suitably located in rural areas. The County shall consider making provision for such uses as the need is found to exist (see Tumalo). To ensure that the uses in the Rural Industrial Zone on tax lot 16-12-26C-301 are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of pumice. FINDINGS: This section also applies to Tax Lot 301 which is part of the applicants' existing industrial operations to the north and east of the subject property. The Hearings Officer finds this section must be amended to reflect approval of the applicants' proposed plan amendment and zone change for the subject property and to include and LU Zone for the property. As discussed in the findings above, the Hearings Officer has found the LU Zone applicable to the subject property will provide as follows: To ensure that the uses in the Rural Industrial Zone on Tax Lot 300 on Assessor's Map 16-12-26C-300 and the portions of Tax Lot 111 on Assessor's Map 16-12-26C- 111 located west of the Burlington Northern -Santa Fe railroad tracks and north of Nichols Market Road are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of minerals, subject to conditional use and site plan approval. Chapter 23.40, UNINCORPORATED COMMUNITIES Section 23.40.070, Rural Industrial The Rural Industrial plan designation is applicable to industrial lands located outside unincorporated communities and urban growth boundaries. 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 36 of 44 The purpose of the Rural Industrial designation is to recognize existing industrial uses in rural areas of the county and to allow the appropriate development of additional industrial uses that are consistent with the rural character, facilities and services. B. Rural Industrial Designated Area Descriptions The Deschutes Junction site consists of the following tax lots: 161226C000102 (15.61 acres), bounded by 161226C000111 (6.23 acres) and 161226C000301 (6.12 acres). These tax lots are bounded by Deschutes Market Road to the north and east and Highway 97 to the west, tax lot 161226C000106 is bounded by Deschutes Market Road to the north, and other rural industrial lands to the east, south and west. Tax lot 161226C000107 is bounded by Deschutes Market Road to the north, EFU land to the west, and other rural industrial lands to the east and south. * * * FINDINGS: The Hearings Officer finds this section must be amended to reflect approval of the applicants' proposed plan amendment and zone change and the expansion of the Deschutes Junction RI site. In their supplemental burden of proof the applicants suggested the following language to amend this section: "The Deschutes Junction site consists of the following: Tax Map 16-12-26C, Tax Lots 107 (9.05 acres), Tax Lot 106 (4.33 acres), Tax Lot 102 (1.41 acres), Tax Lot 114 (2.50 acres), Tax Lot 300 (20.68 acres), Tax Lot 301 (8.93 acres) and Tax Lot 111 (18.69 acres). Generally, the Deschutes Junction site is bordered on the west by Highway 97 and to the east by the Burlington Northern Railroad. Some remnant strips of Tax Lot 111 are on the east side of the railroad. A small strip of property that is part of Tax Lot 111 extends north of Nichols Market Road, and abutting the railroad" The Hearings Officer finds this proposed language requires further refinement to make clear not all of Tax Lots 111 and 300 are subject to the exception to Goal 14. In addition, it is not clear from this record whether the acreage amounts attributed to the affected portions of Tax Lots 111 and 300 are correct. Accordingly, I find the language amending this paragraph shall provide as follows, and the applicant will be required as a condition of approval and prior to the public hearing before the board on this goal exception, plan amendment and zone change to provide the correct amounts of acreage as determined by a registered surveyor: 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 37 of 44 The Deschutes Junction site consists of the following: Tax Map 16-12-26C, Tax Lots 107 (9.05 acres), Tax Lot 106 (4.33 acres), Tax Lot 102 (1.41 acres), Tax Lot 114 (2.50 acres), portions of Tax Lot 300 ( acres), Tax Lot 301 (8.93 acres), and those portions of Tax Lot 111 located west of the Burlington Northern -Santa Fe railroad tracks ( acres). Generally, the Deschutes Junction site is bordered on the west by Highway 97, on the east by the Burlington Northern Railroad, on the north by Nichols Market Road (except for a portion of Tax Lot 111), and on the south by EFU-zoned property owned by the City of Bend. C. Policies 1. To assure that urban uses are not permitted on rural industrial lands, land use regulations in the Rural Industrial zones shall ensure that the uses allowed are less intensive than those allowed for unincorporated communities in OAR 660, Division 22 or any successor. FINDINGS: The staff report notes that a comparison of Chapter 18.67.060 of the county code - the Tumalo Industrial Zone -- and Chapter 18.100 — the Rural Industrial Zone -- shows the RI Zone is more restrictive than the Tumalo RI in building size, building height, and other measures of intensity of use as well as some setbacks. However, these two zones are similar in that both allow the storage, crushing and processing of minerals, including the processing of aggregate into asphaltic concrete or Portland Cement concrete. The applicants have not requested approval to process minerals into asphaltic concrete or Portland Cement concrete, but rather proposed to use the subject property for storage, crushing, processing, sale and distribution of minerals and employee parking. The staff report states, and the Hearings Officer agrees, that the storage, crushing, processing, sale and distribution of minerals are lower intensity uses than the processing of aggregate into asphaltic concrete or Portland Cement concrete, and therefore the applicants' proposal is consistent with this plan policy. 2. Limited Use Combining zones shall be applied to the Redmond Military (Tax lot 1513000000116), Deschutes Junction (Tax lot 161226C000301), and Wickiup Junction (Tax lot 2110360000104) to ensure that permitted uses are compatible with surrounding farm and forest lands. FINDINGS: The Hearings Officer finds this subsection must be amended to reflect approval of the applicants' proposed plan amendment. The applicant's supplemental burden of proof suggested the following amended language: "Limited Use Combining Zones shall be applied to the Redmond Military (Tax lot 1513000000116), Deschutes Junction (Tax lot 161226C0031, Tax lot 161226C00399 and those portions of Tax lot 161226C00111 east of the railroad and north of Nichols Market Road), and Wickiup Junction (Tax lot 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 38 of 44 21100360000104) to ensure that permitted uses are compatible with surrounding farm and forest lands." The Hearings Officer finds this language is appropriate with the following correction: the word "east" should be "west" in the description of the relevant portions of Tax Lot 111. 3. Land use regulations shall ensure that new uses authorized within the Rural Industrial sites do not adversely affect agricultural and forest uses in the surrounding areas. FINDINGS: The staff report states, and the Hearings Officer agrees, that this policy directs the county to develop land use regulations and therefore is not applicable to the applicants' proposal. 4. New industrial uses shall be limited in size to a maximum floor area of 7,500 square feet per use within a building, except for the primary processing or raw materials produced in rural areas, for which there is no floor area per use limitation. FINDINGS: The staff report states this policy is not applicable to the applicants' proposal because the proposal does not contemplate a "new" industrial use, but rather the expansion of an existing industrial use and no structures are proposed. The Hearings Officer disagrees. I find that because the use proposed for the subject property is a new industrial use — i.e., a use that has never before been undertaken on the subject property — this policy does apply. Nevertheless, I agree that because the proposed use consists primarily of processing raw materials there is no floor area limitation. 5. A lawfully established use that existed on or before February 2, 2003, not otherwise allowed in a Rural Industrial zone, may continue to exist subject to the county's nonconforming use regulations 6. A lawfully established use that existed on or before February 2, 2003 may be expanded to occupy a maximum of 10,000 square feet of floor area or an additional 25 percent of the floor area currently occupied by the existing use whichever is greater. FINDINGS: The Hearings Officer finds these policies are not applicable to the applicants' proposal because there is no existing lawfully established use on the subject property. 7. Residential and industrial uses shall be served by DEQ approved on-site sewage disposal systems. 8. Residential and industrial uses shall be served by on-site wells or public water systems. 9. Community sewer systems shall not be allowed in Rural 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 39 of 44 Industrial zones. FINDINGS: The Hearings Officer finds these policies are applicable to the applicants' proposal because no new sewer or water facilities are proposed on the subject property, and therefore any future development must be served by an on-site sewage disposal system. The record indicates the adjacent property on which the applicants' existing Deschutes Junction operations are conducted has an approved on-site septic system, and no uses proposed for the subject property will require a new on-site septic system. B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDINGS: The purpose of the RI zone is set forth in Section 18.100.010 as follows: * * * to encourage employment opportunities in rural areas and to promote the appropriate economic development of rural service centers which are rapidly becoming urbanized and soon to be full-service incorporated cities, while protecting the existing rural character of the area as well as preserving or enhancing the air, water and land resources of the area. The applicants' proposed plan amendment and zone change from EFU to RI would create employment opportunities in rural areas by allowing the applicants to consolidate their industrial operations at the Deschutes Junction site. Nevertheless, as discussed in the findings above, the Hearings Officer has found that to assure compatibility of the proposed industrial uses with surrounding commercial, farm and residential uses, the LU Zone applicable to the subject property will state that uses on the property are subject to conditional use and site plan approval. The purpose of the LU Zone is set forth in Section 18.112.010(B) and (C) as follows: B. The LU Zone is an overlay zone which may be applied, where appropriate, to plan amendments/zone changes effected by either a "physically developed" exception under ORS 197.732(1)(a), an "irrevocably committed" exception under ORS 197.732(1)(b), or a "reasons" exception under ORS 197.732(1)(c). C. The LU Zone, when adopted, shall carry out the requirement of Oregon Administrative Rule 660-04-018 that where a goal exception is taken, permitted uses shall be limited to those uses justified by the exception statement. In addition, Section 18.112.020 sets forth the combining zone requirements as follows: When the LU Zone is applied, the uses permitted in the underlying zone shall be limited to those uses and general activities specifically set forth in the ordinance adopting the underlying zone and the LU Zone. Any change in those uses and general activities must be made through the plan/land use regulation amendment process. 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 40 of 44 The applicants have requested a "reasons" exception to Goal 14 pursuant to ORS 197.732(1)(c) to change the zoning of the subject property from EFU-TRB to RI with an LU Zone to allow for the storage, crushing, processing, sale and distribution of minerals and employee parking on the subject property. As discussed above, uses permitted under the proposed LU Zone are limited to those uses justified by the submitted "reasons" exception statement — i.e., the storage, crushing, processing, sale and distribution of minerals. 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. FINDINGS: The Hearings Officer finds the applicants' proposed zone change complies with this requirement because no additional public services or facilities are necessary to serve the proposed uses on the subject property, which will continue to be served by the Deschutes County Rural Fire District No. 1, the Deschutes County Sheriff, as well as Pacific Power and the Avion Water Company. As discussed above, the record indicates there is an existing on-site septic system serving the industrial operations on the adjacent property owned by the applicants, and the proposed uses on the subject property will not require a separate on-site sewage disposal system. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: The proposal's compliance with the relevant plan goals and policies is addressed in the findings above. As also discussed above, the applicant has identified and committed to mitigation measures to minimize negative impacts from dust, including using water to wet down internal roads and driveways and other dust -generating areas. In addition, the Hearings Officer has found the LU Zone applicable to the subject property will provide that uses on the property are subject to conditional use and site plan approval. 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. FINDINGS: 1. Change of Circumstances. The applicants argue there have been three changes of circumstances since the property was zoned EFU-TRB that justify the proposed zone change: (1) the applicants require more land for processing, stockpiling and operational requirements for the processing of minerals than the previous owner needed for the processing of pumice; (2) the Deschutes Market/Tumalo Road overpass at the Deschutes Junction interchange on Highway 97 has affected the size and operational characteristics of the applicants' existing Deschutes Junction industrial site, necessitating an expansion onto the subject property; and (3) the at -grade 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 41 of 44 railroad crossing at Deschutes Market Road has been removed, making the access to Tax Lot 111 for employee parking feasible. The Hearings Officer finds the change of circumstance described in item (1) does not justify the proposed zone change because it constitutes the mere change in ownership or use of a parcel. The Hearings Officer agrees with the applicants that the changes of circumstance identified in items (2) and (3) do justify the proposed zone change because these are events that occurred after the original EFU zoning of the subject property and were not within the applicants' control. The record indicates portions of Tax Lot 111 were inaccessible because of challenges crossing Deschutes Market Road and the railroad before the Deschutes Market/Tumalo Road overpass was constructed over Highway 97. The overpass essentially bisected the applicants' Deschutes Junction operations but made those previously inaccessible portions of Tax Lot 111 readily accessible and usable. In addition, construction of the overpass created easier access to Tax Lot 300 from the road and from the rest of the applicants' property. 2. Mistake. The applicants also argue that the original EFU zoning of the subject property was a mistake, based on the submitted soils study establishing that the predominant soils on the subject property are Class VII and VIII soils that are not considered agricultural soils. The Hearings Officer disagrees. I find the original EFU zoning of the subject property was based on the best soils data available at the time the county's original zoning map was adopted, and is consistent with the original zoning of most of the surrounding land. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby APPROVES the applicants' proposed plan amendment, zone change and "reasons" exception to Goals 3 and 14, SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL: 1. This approval is based on the application, the applicants' burden of proof statements and exhibits, and the applicants' written and oral testimony. Any substantial change to this approval will require a new land use application and approval. 2. This approval allows on the subject property the storage, crushing, processing, distribution and sale of minerals. This approval does not allow the batching or blending of minerals into asphaltic concrete or Portland Cement Concrete. 3. Section 23.24.030(11)(a) of the Deschutes County Year 2000 Comprehensive Plan is amended to include the following exception justification statement to replace the existing exception justification statement applicable to the subject property: In conjunction with approval of PA -10-3 and AC -10-2 for that certain property described in Exhibit 'F' and depicted in Exhibit `G' attached to Ordinance 2010 - and incorporated by reference herein, a reasons exception to Goal 14 was taken to allow the Comprehensive Plan and Zone Change on the subject property. The Plan Amendment and Zone Change will allow Rural Industrial plan and zoning designation with a Limited Use Combining Zone for the specific use of storage, 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 42 of 44 crushing, processing, sale and distribution of minerals. Reasons justifying why the state policy embodied in Goal 14 should not apply in this situation are set forth in Exhibit 'H' to Ordinance 2010- which findings are incorporated herein. 4. Section 23.24.030(11) of the Deschutes County Year 2000 Comprehensive Plan is amended to include the following language for the Deschutes Junction Limited Use Combining Zone: To ensure that the uses in the Rural Industrial Zone on Tax Lot 300 on Assessor's Map 16-12-26C-300 and the portions of Tax Lot 111 on Assessor's Map 16-12-26C- 111 located west of the Burlington Northern -Santa Fe railroad tracks and north of Nichols Market Road are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of minerals, subject to conditional use and site plan approval. 5. Section 23.40.70(B) of the Deschutes County Year 2000 Comprehensive Plan is amended to include the following replacement language: The Deschutes Junction site consists of the following: Tax Map 16-12-26C, Tax Lots 107 (9.05 acres), Tax Lot 106 (4.33 acres), Tax Lot 102 (1.41 acres), Tax Lot 114 (2.50 acres), portions of Tax Lot 300 ( acres), Tax Lot 301 (8.93 acres), and those portions of Tax Lot 111 located west of the Burlington Northern -Santa Fe railroad tracks ( acres). Generally, the Deschutes Junction site is bordered on the west by Highway 97, on the east by the Burlington Northern Railroad, on the north by Nichols Market Road (except for a portion of Tax Lot 111), and on the south by EFU-zoned property owned by the City of Bend. 6. Section 23.40.070(C)(2) of the Deschutes County Year 2000 Comprehensive Plan is amended to include the following replacement language: Limited Use Combining Zones shall be applied to the Redmond Military (Tax lot 1513000000116), Deschutes Junction (Tax lot 161226C0031, Tax lot 161226C00399 and those portions of Tax lot 161226C00111 west of the railroad and north of Nichols Market Road), and Wickiup Junction (Tax lot 21100360000104) to ensure that permitted uses are compatible with surrounding farm and forest lands. 7. Prior to the public hearing before the Deschutes County Board of Commissioners to approve the subject plan amendment, zone change and exception to Goal 14 for the subject property, the • applicants/owners shall submit to the Planning Division: a. a legal description of the property subject to the plan amendment, zone change and goal exception as shown in the applicants' revised "Concept Development Plan" included in the record as Exhibit 21 to the applicants' burden of proof; and b. the correct amounts of acreage for the portions of Tax Lots 111 and 300 included 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 43 of 44 in the legal description required by paragraph (a) of this condition, as determined by a registered surveyor. 8. The applicants/owners shall at all times comply with all applicable Oregon Department of Environmental Quality (DEQ) requirements for dust control and all applicable requirements of the DEQ Air Contaminant Discharge Permit for the crushing equipment used on the subject property. The applicant/owner shall have dust control measures in place on the subject property at all times during the months of May through October and at all times during the operation of crushing equipment. Dated this 3A4( day of July, 2010. Mailed this ----day of July, 2010. Karen H. Green, Hearings Officer 4-R Equipment, LLC PA -10-3, ZC-10-2 Page 44 of 44 REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code 23.24.030 and 23.40.070 and Adding 23.120.110, to Adopt an Exception to Goal 14 and To Change the Plan Designation for Certain Property From Agricultural Land to Rural Industrial ORDINANCE NO. 2010-030 WHEREAS, 4-R Equipment, LLC proposed a "reasons" exception to Goal 14 and a Plan Amendment to Deschutes County Code ("DCC") Chapters 23.24, Rural Development, 23.40, Unincorporated Communities, and 23.120, Goal Exception Statement, to change the comprehensive plan designation of certain property from Agriculture (AG) To Rural Industrial (RI); and WHEREAS, after notice was give in accordance with applicable law, public hearings were held on May 11, 2010 and June 8, 2010 before the Deschutes County Hearings Officer and, on July 23, 2010 the Hearings Officer recommended approval of the exception to Goal 14 and a Plan Amendments; and WHEREAS, after notice was give in accordance with applicable law, a public hearing was held on October 4, 2010 before the Board of County Commissioners ("Board"), and WHEREAS, the Board, after review conducted in accordance with applicable law, approved the Goal Exception to Goal 14 to change the comprehensive plan designation from Agriculture to Rural Industrial; and, WHEREAS, Deschutes County Ordinance 2000-017 ordained the Deschutes County Comprehensive Plan Map to be a component of DCC Title 23 and, therefore, any amendment to the Plan Map is an amendment to DCC Title 23; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Section 23.24.030, Policies, is amended as described in Exhibit "A," attached and incorporated by reference herein with new language underlined and deleted language set forth in stfilc-ethfettgll Section 2. AMENDMENT. DCC Section 23.40.070, Rural Industrial, is amended to read as described in Exhibit "B", attached and incorporated by reference herein with new language underlined and deleted language set forth in strilcetticeugh , . Section 3. ADDING. DCC Section 23.120.110, Rural Industrial Zone, is added as in Exhibit "C" to except from Goal 14 that certain property described in Exhibit "D," attached and incorporated by reference herein. Section 4. AMENDMENT. DCC Title 23, The Deschutes County Comprehensive Plan Map, is amended to change the plan designation for certain property described in Exhibit "D" and depicted on the map Page 1 of 2 - ORDINANCE NO. 2010-030 set forth as Exhibit "E", with both exhibits attached and incorporated by reference herein, with both exhibits attached and incorporated by reference herein, from Agriculture to Rural Industrial. Section 5. FINDINGS. The Board adopts as its findings in support of this decision Exhibit "F," attached and incorporated by reference herein. Dated this of , 2010 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: DENNIS R. LUKE, Chair ALAN UNGER, Vice Chair Recording Secretary TAMMY BANEY, Commissioner Date of 15` Reading: day of , 2010. Date of 2"d Reading: day of , 2010. Record of Adoption Vote: Commissioner Yes No Abstained Excused Dennis R. Luke Alan Unger Tammy Baney Effective date: day of , 2010. Page 2 of 2 - ORDINANCE NO. 2010-030 23.24.030. Policies. The policies needed to accomplish the identified goals were largely developed by the Overall CAC during its deliberations on the preliminary plan. It was obvious that some policies were needed to pull the various resource and management chapters together and to fill in some gaps so that an integrated and cohesive plan was available. Rural Development policies are meant to pertain to all non- urban areas (areas outside urban growth boundaries) and are the basic policies to be followed in guiding rural growth. Specific resource or management policies from other chapters shall augment these policies so that the plan must be viewed as an integrated whole rather than a series of individual chapters. • Residential/recreational development. 1. Because 91 percent of the new County population will live inside an urban area, with only 3,039 new rural lots required, and in light of the 17,377 undeveloped rural tracts and lots as well as the energy, environmental and public service costs, all future rural development will be stringently reviewed for public need before approval. As a guideline for review if a study of existing lots within three miles of the proposed development indicates approximately 50 per cent or more of those lots have not had structures constructed thereon, then the developer shall submit adequate testimony justifying additional lots in that area. This will permit development in areas where such is needed (other policies considering energy, public facilities, safety and other development aspects shall also be considered) while restricting future division in areas where many undeveloped lots already exist. 2. To further restrict subdivision outside urban areas the minimum parcel size shall be 10 acres, except where other policies supersede this minimum (see Unincorporated Communities, Rural Service Centers, Agriculture and Forest Lands). 3. Cluster or planned development offers significant savings to the developer because of reduced roadway, utility and construction costs. Public costs to serve cluster developments are also usually lower. Therefore, to encourage cluster and planned developments, rather than parcelization, the county shall permit smaller lot sizes and the continued use of special lot size requirements in cluster and planned developments in rural residential exception areas. 4. Cluster and planned developments shall maintain a minimum of 65 per cent of the land in open space, forest or agricultural uses compatible with the surrounding area and the development area. The open space of the development may be platted as a separate parcel or in common ownership of some or all of the clustered units; however, the open area shall not be subject to development unless the whole development is brought inside an urban growth boundary. Also, service connections shall be the minimum length necessary and underground where feasible. Roads may be private roads and shall meet County standards. 5. Destination resorts are important elements of the local economy. These developments shall not be permitted in exclusive farm use districts except in EFU-20 and EFU-40 zones pursuant to the County's Destination Resort Siting Map and Destination Resort Siting Combining Zone and in forest districts only in the F-2 zone pursuant to the County's Destination Resort Siting Combining Zone. They may be allowed in the County's rural areas if compatible with the environmental capabilities of the site, near existing transportation and utility facilities, consistent with the rural character of the area, and unlikely to create undue public service burdens. 6. Other than as outlined in Policy 5 and the Goals and Policies set forth for Destination Resorts, no further recreational (seasonal) subdivision will be approved in rural areas. 7. Parcels legally existing at the time of this plan's adoption shall continue to function as legal lots and will not be unduly affected by the new lot size. • Commercial and Industrial Development. Chapter 23.24 (7/2010) Page 1 of 2 - Exhibit A to Ordinance 2010-030 8. Within one mile of acknowledged urban growth boundaries, use of the planned or cluster development concepts shall permit development in Multiple Use Agriculture or Rural Residential zones (not under a combining zone which would prevent such) with a minimum lot size or equivalent density of one unit per five acres. 9. Temporary on-site processing and storage of either mineral and aggregate materials or agricultural products shall be permitted as appropriate, in order to support the continued productivity of the County's natural resources. 10. Certain industrial uses, such as research and development facilities (requiring quiet and open surroundings) and manufacturers of hazardous materials (requiring long distances between the plant and neighbors) are more suitably located in rural areas. The County shall consider making provision for such uses as the need is found to exist (see Tumalo). 11. Certain industrial uses, such as research and development facilities (requiring quiet and open surroundings), wrecking or salvage yards and manufacturers of hazardous materials (requiring long distances between the plant and neighbors) are more suitably located in rural areas. The County shall consider making provision for such uses as the need is found to exist (see Tumalo). 12. To ensure that the uses in the Rural Industrial zone on tax lot 16-12-26C-301, as described in Exhibit "C" and depicted on Exhibit "D," attached to Ordinance 2009-007 and incorporated by reference herein, are limited in nature and scope, the Rural Industrial zoning on the subject parcel shall be subject to a Limited Use Combining Zone, which will limit the uses to storage, crushing, processing, sale and distribution of minerals. 13. To ensure that the uses in the Rural Industrial Zone on Tax Lot 300 on Assessor's Ma. 16- 12-26C-300 and Tax Lot 203 on Assessor's Ma 111 on Assessor's Ma 16-12-26A-300 and ortions of Tax Lot 16-12-26C-111 as described in Exhibit "D" and d- ►icted m Exhibit E" attached to Ordinance 2010-030 and Inco limited in nature and sco the Rural Industrial zonin orated b reference herein, are on the sub'ect arcel shall be sub'ect to a Limited Use Combinin Zone which will limit the uses to stora a crushin .rocessinsale and distribution of minerals subject to conditional use and site plan approval. 14. Because large scale recreation facilities cannot normally be accommodated in urban areas, uses such as motor cross tracks, rodeo grounds and livestock arenas shall be conditional uses which may be approved in rural areas adjacent to existing highways and other public facilities. (Ord. 2010-030 &1, 2010; Ord. 2009-007 §1, 2009; Ord. 2004-023 §1, 2004, Ord. 2002-001 §2, 2002, Ord. 2002-005 §1, 2002, Ord. 2002-001§2; Ord. 2000-017 §1, 2000; Ord. 92-051, 1992; PL - 20, 1979) Chapter 23.24 (7/2010) Page 2 of 2 - Exhibit A to Ordinance 2010-030 23.40.070. Rural Industrial. The Rural Industrial plan designation is applicable to industrial lands located outside unincorporated communities and urban growth boundaries. The purpose of the Rural Industrial designation is to recognize existing industrial uses in rural areas of the county and to allow the appropriate development of additional industrial uses that are consistent with the rural character, facilities and services. A. Periodic Review In order to comply with state rules for Periodic Review (OAR 660-025), Deschutes county has reviewed and updated the county comprehensive plan and land use regulations for the rural industrial sites of: Redmond Military, Deschutes Junction, Bend Auto Recyclers and Wickiup Junction. OAR 660-022, the State Unincorporated Communities Rule, defines the types of unincorporated communities and specifies that industrial uses be limited to buildings containing no more than 10,000 square feet of floor space. Rural industrial uses outside of unincorporated communities must be less intense than those allowed within an incorporated community. B. Rural Industrial Designated Area Descriptions The Redmond Military site consists of tax lot 1513000000116 and is 35.42 acres, bounded by the Redmond Urban Growth Boundary to the west and Exclusive Farm Use lands surrounding the remainder of the property. The Deschutes Junction site consists of the following tax lots: 161226CO00102 (15.61 acres), . These tax lots aro 161226C000107 9.05 acres 161226C000106 4.33 acres 161226C000102 (1.41 acres), 161226C000114 (2.50 acres), portions 161226C000300 (12.9 acres), 161226C000301 (8.93 acres), 161226A000203 (1.5 Acres) and those portions of 161226A000111 located west of the Burlin on Northern -Santa Fe railroad tracks 16.45 acres . Generally, the Deschutes Junction site is bordered on the west b Hi wa 97 on the east by the Burlington Northern Railroad, on for a . ortion of 161226A000111) and on the south by EFU-zoned property owned by the City of Bend. Bend Auto Recyclers consists of tax lot 1712030000111 and is 13.41 acres, bounded by Highway 97 to the west, and Multiple Use Agricultural lands to east, north and south. Wickiup Junction consists of tax lot 2110360000104 and is 12.67 acres, bounded by Rosland Road on the southwest with forest lands surrounding the remainder of the property. C. Policies 1. To assure that urban uses are not permitted on rural industrial lands, land use regulations in the Rural Industrial zones shall ensure that the uses allowed are less intensive than those allowed for unincorporated communities in OAR 660, Division 22 or any successor. 2. Limited Use Combining zones shall be applied to the Redmond Military (Tax lot 1513000000116), Deschutes Junction (Tax lot 161226C000301_ Tax lot 161226C00300, Tax lot 161226C00111, and 161226A00203), and Wickiup Junction (Tax lot 2110360000104) to ensure that permitted uses are compatible with surrounding farm and forest lands. 3. Land use regulations shall ensure that new uses authorized within the Rural Industrial sites do not adversely affect agricultural and forest uses in the surrounding areas. 4. New industrial uses shall be limited in size to a maximum floor area of 7,500 square feet per use within a building, except for the primary processing or raw materials produced in rural areas, for which there is no floor area per use limitation. the north b Nichols Market Road exc Chapter 23.40 (10/2010) Page 1 of 2 - Exhibit B to Ordinance 2010-030 5. A lawfully established use that existed on or before February 2, 2003, not otherwise allowed in a Rural Industrial zone, may continue to exist subject to the county's nonconforming use regulations 6. A lawfully established use that existed on or before February 2, 2003 may be expanded to occupy a maximum of 10,000 square feet of floor area or an additional 25 percent of the floor area currently occupied by the existing use whichever is greater. 7. Residential and industrial uses shall be served by DEQ approved on-site sewage disposal systems. 8. Residential and industrial uses shall be served by on-site wells or public water systems. 9. Community sewer systems shall not be allowed in Rural Industrial zones. ( Ord. 2010-030, §2, 2010, Ord. 2002-126, §1, 2002) Chapter 23.40 (10/2010) Page 2 of 2 - Exhibit B to Ordinance 2010-030 23.120.110. Rural Industrial Zone. In conjunction with approval of PA -08-6, ZC-08-6 for that certain property described in Exhibit "C" and depicted in Exhibit "D" attached to Ordinance 2009-007 and incorporated by reference herein, an "irrevocably committed" exception to Statewide Planning Goal 3, Agricultural Lands, and a reasons exception to Goal 14 was taken to allow for the subject comprehensive plan and zone change on agricultural land. The plan amendment and zone change will allow Rural Industrial plan and zoning designation with a Limited Use Combining Zone for the specific use of storage, crushing, processing, sale and distribution of minerals. Reasons justifying why the state policy embodied in Goal 3 should not apply in this situation are set forth in Exhibit "E" to Ordinance 2009-007, which findings are incorporated herein. In conjunction with approval of PA -10-3 and ZC-10-2 for that certain pjperty described in Exhibit `D' and d - . icted in Exhibit `E' attached to Ordinance 2010-030 and Inco . orated b reference herein a reasons exc . tion to Goal 14 was taken to allow the Com . rehensive Plan and Zone Change on the subject property. The Plan Amendment and Zone Change will allow Rural Industrial lan and zonin desi us ation with a Limited Use Combinin Zone for the s secific use of storage, g why the state policy lY in this situation are set forth in Exhibit 'F' to Ordinance 2010-030 which findings are incorporated herein. crushin rocessin sale and distribution of minerals. Reasons 'usti embodied in Goal 14 should not a (Ord. 2010-030 43, 2010; Ord. 2009-007 §2, 2009; Ord. 2002-005 §1, 2002; Ord. 2000-017 §1, 2000; Ord. 98-081, 1998) Chapter 23.120 (10/2010) Page 1 of 1 - Exhibit C to Ordinance 2010-030 EXHIBIT D — PART 1 A parcel of land containing 12.90 acres, more or Tess, located in a portion of the Southwest One-quarter (SW1/4) of Section 26, Township 16 South, Range 12 East, Willamette Meridian, Deschutes County, Oregon, being more particularly described as follows: Beginning at a point on the south line of said Section 26 which bears North 89°54'41." East a distance of 608.14 feet from the southwest comer of said Section 26; thence leaving said south section line North 28°09'03" East a distance of 150.04 feet; thence North 10°5713" East a distance of 305,24 feet; thence North 49°42'04" West a distance of 167.51 feet; thence North 19°3124" West a distance of 175.68 feet; thence along a line parallel with and 200 feet easterly of the east right-of-way line of the Dalies-Califomia Highway the following three '(3) courses; North 36°1T20" Easta distance of 220.64 feet; North 16°26'06" East a distance of 220.39 feet; North 26°22'04" East a distance of 54.28 feet; Thence leaving said parallel line North 89°41'27" East a distance of 134.78 feet to a point on the centerline of the Pilot Butte Canal; thence along said canal centerline the following five (5) curves: 320.44 feet along a non -tangent curve to the left with a radius of 180.00 feet, the chord of which bears South 33°3023" East a distance of 279.77 feet; 227.20 feet along the arc of a reverse curve to the right with a radius of 200.00 feet, the chord of which bears South 51°5.7'43" East for a distance of 215.18 feet; 354.53 feet along the arc of a compound curve to the right with a radius of 1200.00 feet, the chord of which bears South 10°57'12" East for a distance of 353.24 feet; 109.19 feet along the arc of a compound curve to the right with a radius of 150:00 feet, the chord of which bears South 18°21'51" West for a distance of 106.80 feet; 369.99 feet along the arc of a reverse curve to the left with a radius of 800.00 feet, the chordof which bears South 25°58'08" West for a distance of 366.70 feet to a point on the south line of said Section 26; Thence along said south section line South 89°54'41" West a distance of 490.97 feet to the point of beginning, the terminus of this description. Subject to: All easements, restrictions and right-of-ways of record and those common and apparent on the land. June 2, 2010 S:1Land ProJectsICASCADE PUMICEIdocs1100504112.90 ACRE PORTION TL 300.149c Bee attached map titled "EXHIBIT 13" hereby incorporated by reference. 8—/9- . REGISTERED PRDFES8I NAAL iND:.SUR47EYDR • J 17, • 86 PT A. ,MANLEYULY • ..: .: ,x21°4 .`'F ENEW+/AL PATEe .1231/0 June 2, 2010 &\Land Projects\CASCADE PUMICE\docs\100504112.90 ACRE PORTION TL 300.doc EXHIBIT 'B' CURVE TABLE CURVE LENGTH RADIUS DELTA CHORD 01 320.44' 180.00' 10200'01' 33330123'E 279.77' C2 227.20' 200.00' 65V521" S5157'431" 215.18' 03 354.53' 1200.00' 1655`39" 310'5712T 35.124' C4 109.19' 150.00' 41'42'29' 31821'51'W 106.80' C5 369.99' 800.00' 2629'55' 52538'08'W 366.70' REGISTERED PROFESSIONAL ND SURVEYOR ON JULY17,11906 PETER A. MANLEY 2214 RENEWAL DATE 12/31/10 1 "=200FT. sou7M EST CORNER SEC170N 26, 1765. R12F W.M. J�` / / a 3� / °f' -a c. / 'TO. CONTAINS �.s / x?- 12.90 AC 1 A. // 9 1 / N / _.►s `g • / N89.41'27'E / 134`78' / fir. 431 w CENTERLINE OF PILOT BUTTE CANAL / IL 27\ 26 //A° �,o I N8934'41'E ry '`N N89"54'41'E . . i 60814' 490.97' 34 35 G�f Ica / HNA QRS „ . ..0 OP/MOOSIION Mil MUM PIMS.SIIMin .KORO SUMAS' ROS nwwN 41? ZONE CHANGE EXHIBIT MAP 100504 1290 ACRE EXHIBIT MAP.DWG SCALE: 1" = 200' 'DRAWN BY: PAM 1 DATE: 06/02/10 SHEET 1/1 ti EXHIBIT D - PART 2 Two (2) tracts of land, being portions of Parcel 2 of Deschutes County Partition Plat No. 2008-41, containing a total of 1.50 acres, more or Tess, located in a portion of the North One-half (N112) of Section 26, Township 16 South, Range 12 East, Willamette Meridian, City of Bend, Deschutes County, Oregon, being more particularly described as follows: Tract 1 - Beginning at the Center One-quarter corner of said Section 26; thence along the east -west centerline of said Section 26 North 89°31'44" West a distance of 39.65 feet to a point on the southeasterly right-of-way line of Deschutes Pleasant Ridge Market Road; thence along said right-of-way line the following two (2) courses and one (1) curve: North 28°02'15" East a distance of 437.64 feet; 279.47 feet along the arc of a tangent curve to .the right with a radius of 1402.57 feet, the chord of which bears North 33°44'45" East for a distance of 279.01 feet; North 39°27'15" East a distance of 38:69 feet; Thence, leaving said right-of-way line, South 61°57'45" East a distance of 54.59 feet to a point on the northeasterly right-of-way line of the Burlington Northem Railroad; thence along said right-of-way line South 28°0215" West a distance of 706.19 feet to a point on said east -west centerline of Section 26; thence along said east -west section centerline North 89°32'30" West a distance of 61.88 feet to the point of beginning, the terminus of this description. Contains 1.42 acres, more or Tess. Tract 2 - Commencing at a point on the northeasterly right-of-way line of Deschutes Pleasant Ridge Market Road which bears North 23°17' 45" East a distance of 737.37 feet, from the Center One-quarter comer of said Section 26; thence along said right-of-way line the following one (1) course and one (1) curve: South 39°27'15" West a distance of 26.57 feet; 291.43 feet along the arc of a tangent curve to the left with a radius of 1462.57 feet, the chord of which bears South 33°44'45" West for a distance of 290.95 feet; Thence, leaving said right-of-way line, North 28°0215" East a distance of 315.55 feet; thence South 61 °57'45" East a distance of 34.20 feet to the point of beginning, the terminus of this description. Contains 0.08 acres, more or less. August 16, 2010. SALand ProjectslCASCADE PUMICEIdocs11005041TL203 AND PART TL 111 LEGAL.doc 'TOGETHER WITH: A tract of land, being a portion of Parcel 2 of Deschutes County Partition Plat No. 2008-41, located in a portion of the South One-half (S.1/2) of Section 26, Township 16 South, Range 12 East, Willamette Meridian, City of Bend, Deschutes County, Oregon, being more particularly described as follows: Tract 3- Beginning at the Center One-quarter comer of said Section 26; thence along said east -east section centerline South 89°32'30" East a distance of 61.88 feet to a point on the northwesterly right-of-way Zine of the Burlington Northem Railroad; thence along said right-of-way line South 28°0215" West a distance of 3.88.10 feet to a point on the northeasterly right-of-way line of Deschutes Market Road.; thence along said northeasterly right-of-way line, North 61°59'27" West a distance of 13.45 feet; thence 120.22 feet along the arc of a tangent curve to the right with a radius of 76.51 feet forming the northeasterly intersection of said northeasterly right-of-way line with the southeasterly right-of-way line of Deschutes Pleasant Ridge Market Road, the chord of which bears North 16°58'36" West: for a distance of 108.23 feet; thence along said southeasterly Deschutes Pleasant Ridge Market Road right-of-way Zine North 28°02'15" East a distance of 264.59 feet to a point on the east -west centerline of said Section 26; thence along said east -west section centerline South 89°31'44" East a distance of 39.65 feet to the point of beginning, the terminus of this description. Contains 0.72 acres, more or Tess. Subject to: All easements, restrictions and right-of-ways of record and those common and apparent on the land. See attached map titled "EXHIBIT B", hereby incorporated by reference. S -/P-fid REGISTERED -PR©FESSI❑NAL AND SURVEYOR ❑RE:GDN JULY 17; 1986 ..PETER A, MANLEY . a2.1:4. RENEWAL DATES 12/31/10 August 16. 2010 S:\Land Projects\CASCADE PUMICE\docs\100504\TL203 AND PART 11 111 LEGAL.doc EXHIBIT 'B' CURVE TABLE CURVE LENGTH RADIUS DELTA CHORD 01 279.47' 1402.57' 1175'00" 53344'45"W 279.01' C2 291.43' 146257' 1125'00" S33'44145* W 290.95' C3 120.22' 76.51' 90'01'42" N1658'36'W 108.23' LINE TABLE LINE COURSE LI S8931'44"E 39.65' L2 S3927'15"W 38.69' L3 N6157'45"W 54.59' L4 S89 32'30"E 61.88' L5 S3927'15"W 26.57' L6 N61 57'45"W 34.20' L7 N613927"W 1345' CENTER 1/4 CORNER SECTION 26, T165, R12E, WM- FOUND 1" PIPE= P.O.B. TRACTS 1 AND 3 V ir0'90 P.O.B. TRACT 2 - BEARS N2377'45"E, 737.37 FT FROM 10ENTER 1/4 CORNER SECT70N 26 6. 'Y h .0 .., 7G�/N• 2 PORTIONS 0f PARCEL • PG / / P.P. NO. 2008-41 • .'Y • •,,/ • 412 e ry�6 • /�o • J� • / s EAST -WEST CENTER SECTION LINE POR17ON OF PARCEL Z P.P. NO. 2008-41 8 /Y. -AO REGISTERED PROFESSIONAL AND SURVEYOR OREGON .JULY 17, 1986 PETER A. MANLEY 2214 RENEWAL DATE' 12/31/10 1" = 200' locr.huat wiuuwi a •iiaametelt PN IM"p®f,S IUl IMM 1 N MI* a IMMO' IAA PUIU", 4R ZONE CHANGE EXHIBIT MAP 100504 2t 3 AND PART. TL 111.DWG 200' DRAWN BY: PAM QA SCALE: 1 " = TE: 08/19/10 , SHEET 1/1 RREA AG Plan Amendment From AG to RI TUMALO PL AG Plan Amendment From AG to RI / OS&C AG Legend Subject Property Comprehensive Plan Designation Agriculture Open Space 8 Conservation Rural Commercial Rural Industrial Rural Residential Exception Area PROPOSED COMPREHENSIVE PLAN MAP 4-R Equipment, LLC & Jack Robinson and Sons, Inc. Exhibit "E" to Ordinance 2010-030 \I 0 125 250 500 750 Feel September 28, 2010 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON Dennis R. Luke, Chair Alan Unger, Vice Chair Tammy Baney, Commissioner ATTEST: Recording Secretary Dated this day of October, 2010 Effective Date: October , 2010 REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code 18.100.090 and Title 18, the Deschutes County Zoning Map, to Change the Zone Designation for Certain Property From Exclusive Farm Use to Rural Residential with a Limited Use Combing Zone To Allowing the Storage, Crushing, Processing, Sale and Distribution of Minerals. ORDINANCE NO. 2010-031 WHEREAS, 4-R Equipment, LLC applied for a Deschutes County Comprehensive Plan and Plan Map amendment and a Deschutes County Code ("DCC") zoning Code Zoning Map amendment to rezone certain property from Exclusive Farm Use (EFU) to Rural Industrial (RI) with a new Limited Use Combining Zone (LU); and WHEREAS, after notice was give in accordance with applicable law, public hearings were held on May 11, 2010 and June 8, 2010 before the Deschutes County Hearings Officer and, on July 23, 2010 the Hearings Officer recommended approval of the zone change; and WHEREAS, the Board of County Commissioners considered this matter after a duly noticed public hearing on October 4, 2010 and concluded that the proposed changes are consistent with the County's Comprehensive Plan and that the public will benefit from changes to the land use regulations; and WHEREAS, on this same date, the Board of County Commissioners ("Board") adopted Ordinance 2010-030 amending DCC Title 23, changing the plan designation of the property from Agriculture (AG) to Rural Industrial (RI); and WHEREAS, a change to the Deschutes County zoning code and Zoning Map is necessary to implement the amendment adopted in Ordinance; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDING. DCC 18.100.090, Limited Use Combining Zone — Deschutes Junction, as described in Exhibit "A," attached and incorporated by reference herein with new language underlined and deleted language set forth in stfilEetkreugh, for the property described in Exhibit "B', attached and incorporated by reference herein. Section 2. AMENDMENT. DCC Title 18, Zoning Map, is amended to change the zone designation from Exclusive Farm Use (EFU) to Rural Industrial (RI) with a new Limited Use Combining Zone (LU) for certain property described in Exhibit "D" attached to Ordinance 2010-030 and depicted on the map set forth as Exhibit "B", and incorporated by reference herein. PAGE 1 OF 2 - ORDINANCE NO. 2010-031 Section 3. FINDINGS. The Board adopts as its findings in support of this decision, Exhibit "F", attached to Ordinance 2009-030 and incorporated by reference herein. Dated this of , 2010 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: DENNIS R. LUKE, Chair ALAN UNGER, Vice Chair Recording Secretary TAMMY BANEY, Commissioner Date of ls` Reading: day of , 2010. Date of 2"d Reading: day of , 2010. Record of Adoption Vote: Commissioner Yes No Abstained Excused Dennis R. Luke Alan Unger Tammy Baney Effective date: day of , 2010. PAGE 2 OF 2 - ORDINANCE NO. 2010-031 18.100.090 Limited Use Combining Zone — Deschutes Junction A. For the property at Deschutes Junction that is described in Exhibit "C" and identified on Exhibit "D", attached to Ordinance 2009-007 and incorporated by reference herein, the storage, crushing, processing, sale and distribution of minerals and their accessory uses are permitted outright and do not require site plan review. B. For the property at Deschutes Junction that is described in Exhibit "D" identified on Exhibit "E", attached to Ordinance 2010-030 and incorporated by reference herein, the storage, crushing, processing, sale and distribution of minerals are subject to conditional use and site plan approval. (Ord. 2010-031 41, 2010; Ord. 2009-008 §2, 2009) (Zoning Map amended by Ord. 2010-031 ti2, 2010; Ord. 2009-008 §2.2009; Ord. 95-016 §1, 1995; Ord. 94- 011 §1, 1994) Chapter 18.100 (10/2010) Page 1 of 1 - Exhibit A to Ordinance 2010-031 MUA10 EFUTRB Zone Change From EFUTRB to RI with Limited Use Combining Zone (LU) TUMALO Pt 44 EFUTRB Zone Change From EFUTRB to RI with Limited Use Combining Zone (LU) /OS .N; CO tir 15 EFUAL Legend Subject Property County Zoning EFUAL -Alfalfa Subzone EFUTRB - TumalolRedmondl8end Subzone MUA10 - Multiple Use Agricultural OSBC - Open Space 8, Conservation RI - Rural Industnal RC - Rural Commercial IEZI Existing Limited Use Combining Zone CEINew Limited Use Combining Zone PROPOSED ZONING MAP 4-R Equipment, LLC & Jack Robinson and Sons, Inc. Exhibit "B" to Ordinance 2010-031 \I L' 0 125 250 500 750 IMOMS;EFeet September 28. 2010 BOARD OF COUNTY COMMISSIONERS OF DESCHUTESCOUNTY, OREGON Dennis R. Luke, Chair Alan Unger, Vice Chair Tammy Benet'. Commissioner ATTEST Recording Secretary Dated this _ day of October. 2010 Effective Date: October 2010