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HomeMy WebLinkAboutOrdinance - Kimble Zone ChgDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.ou. AGENDA REQUEST & STAFF REPORT For Board Business Meeting of February 6, 2008 Use "tab" to move between fields, and use as much space as necessary within each field Do not leave any fields incomplete. Agenda requests & backup must be submitted to the Board Secretary no later than noon of the Wednesday prior to the meeting to be included on the agenda. DATE: February 1, 2008 TO: Deschutes County Board of Commissioners FROM: Chris Bedsaul TITLE OF AGENDA ITEM: Second Reading for Consideration of adoption of Ordinance No. 2008-001, Ordinance No. 2008-306, Ordinance No. 2008-009, Ordinance No. 2008-010 and adoption of Board Findings and Decision for PA07-2 and ZCO7-2 that is a Comprehensive Plan Amendment to change the Harris Kimble property and a portion of the CLR, Inc. property plan map designation of Surface Mine to Rural Residential (Exception Area) and a Zone change from SM to RR -10. PUBLIC HEARING ON THIS DATE? NO. BACKGROUND AND POLICY IMPLICATIONS: The Deschutes County Hearings Officer held a public hearing on July 24, 2007 for PA07-2 and ZCO7-2 for a request by Harris Kimble to approve a Comprehensive Plan Map Amendment of the property from Surface Mine to Rural Residential (Exception Area), Zone change of the subject property from SM to RR -10 and removal of surface mining site number 294 from the Goal 5 Inventory — Min !rat and Aggregate. This comprehensive plan amendment does involve a goal exception for land designated farm or forest use. No appeal of the Hearings Officer's decision was filed by a party of interest or a review u as not initiated by the Board for PA07-2 and ZCO7-2. The Board held a de novo public hearing on J: nuary 7, 2008 as required by DCC 22.28.030(C). There was no public testimony before the Board and the record was closed. The Board conducted the 1St reading, by title only, of Ordinance No.s 200,.-001, 2008-006, 2008-009 and 2008-010 on January 23, 2008. There are no policy implications. FISCAL IMPLICATIONS: NONE. RECOMMENDATION & ACTION REQUESTED: The Board of County Commissioners conduct the 2" reading by title only and sign the Ordinance No.s 2008-001, 2008-006, 2008-009, 2008-010. Sequence of signing that the Board should adopt and sign Ordinance No 2008-010 before signing Ordinance No. 2008-009. The Board should adopt the Findings for PA07-2 and ZCO7-2 ATTENDANCE: Chris Bedsaul DISTRIBUTION OF DOCUMENTS: Copy of any signed Documents to Chris Bedsaul and County Assessor REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 23, the Deschutes * County Comprehensive Plan, to Adopt an Exception * ORDINANCE NO. 2008-001 to Goal 3 and To Change the Plan Designation for * Certain Property From Agricultural to Rural * Residential Exception Area. WHEREAS, Harris C and Nancy Kimble and CLR, Inc. proposed a Goal Exception to Goal 3 and a Plan Amendment to Title 23.120 of the Deschutes County Code (DCC), Goal Exception Statement, to change the comprehensive plan designation of certain property originally designated Agriculture from Surface Mine to Rural Residential Exception Area; and WHEREAS, the Board of County Commissioners (Board) after reviewing all the evidence presented at the public hearing on January 7, 2008, agrees with the findings of the Hearings Officer; and WHEREAS, the Board, after review conducted in accordance with applicable law, approved the Goal Exception to Goal 3, changing the Plan designation from Surface Mine, SM to . Rural Residential Exception Area; and WHEREAS, the subject property is listed as Surface Mining Site 294 on the County's inventory of mineral and aggregate resource sites, as set forth in DCC 23.100.070; and Section 1. ADDING. DCC Chapter 23.120.260, Harris C and Nancy Kimble and CLR, Inc. property described by the legal description attached as Exhibit "A" and incorporated by reference herein, is added to read as shown on Exhibit "B" attached and by reference incorporated herein, to adopt an exception statement for certain. Section 2. AMENDMENT. DCC Title 23, the Deschutes County Comprehensive Plan Map is hereby amended to change the plan designation for the property., originally designated Agriculture described in Exhibit "A" and depicted on the map set forth as Exhibit "C," attached and by this reference incorporated herein, from Surface Mine to Rural Residential Exception Area. Section 3. AMENDMENT. DCC Chapter 23.100.070, Surface Mining, Goal 5 Inventory, is amended to delete that part of Surface Mining Site 294 described on Exhibit "A" from the County's Goal 5 inventory of mineral and aggregate sites as set forth on Exhibit "D," attached hereto and incorporated herein by this reference with deletions shown in striketlifeugh text. PAGE 1 OF 2 - ORDINANCE NO. 2008-001 (1/23/08) Section 4. FINDINGS. The Board adopts as its findings in support of this ordinance, its decision, Exhibit "E," attached and incorporated by reference herein and that decision incorporates parts of the Decision of the Hearings Officer, attached as Exhibit "C" to Ordinance 2008-009. Dated this ATTEST: , 2008 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON DENNIS R. LUKE, CHAIR TAMMY (BANEY) MELTON, VICE CHAIR Recording Secretary MICHAEL M. DALY, COMMISSIONER Date of 1St Reading: day of , 2008. Date of 2n Reading: day of 2008. Record of Adoption Vote Commissioner Yes No Abstained Excused Michael M. Daly Dennis R. Luke Tammy Baney Effective date: day of , 2008. ATTEST: Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2008-001 (1/23/08) NOTE: "* * *" denotes sections of the county code not affected by this ordinance. Chapter 23.120. GOAL EXCEPTION STATEMENT 23.120.010. Introduction. 23.120.020. Methodology. 23.120.030. Agricultural lands. 23.120.040. Forest lands. 23.120.050. Exceptions analysis. 23.120.060. Exception Area Ilan. 23.120.070. Bend Municipal Airport Exceptions Statement. 23.120.080. La Pine UUC Boundary. 23.120.090. Spring River Rural Service Center. 23.120.100. Burgess Road and Highway 97. 23.120.110. Rural Industrial Zone. 23.120.120. Prineville Railway. 23.120.130. Resort Communities. 23.124.140. Barclay Meadows Business Park. 23.120.150. Sisters School District #6. 23.120.160. Sisters Organization of Activities and Recreation and Sisters School District #6. 23.120.170. Oregon Water Wonderland Unit 2 Sewer District. 23.120.180.2004 City of Bend Urban Growth Boundary Amendment (Juniper Ridge). 23.120.190. Joyce Coats Revocable Trust Johnson Road and Tumalo Reservoir Road Properties. 23.120.200. Watson/Generations Development Inc. 23.120.210. Oregon Department of Transportation. 23.120.220. Conklin / Eady Property. 23.120.230. City of Sisters Property. 23.120.240. McKenize Meadows Property. 23.120.250. Bend Metro Park and Recreation District Properties 23.120.260. Harris and Nancy Kimble Property and Portion of CLR, Inc. Property * * * 23.120.260. Harris and Nancy Kimble Property and Portion of CLR Inc. Property, A.K.A., the Klippel Pit Property. In conjunction with approval of PA-07-2/ZC-07-2, an "irrevocably committed" exception to Statewide Planning Goal 3, Agricultural Lands was taken to allow for the rezoning of all of Surface Mine Site 294 from Surface Mining (SM) to Rural Residential (RR -10). The interim plan designation of Surface Mine (SM) was removed from the comprehensive plan map. The underlying plan designations were Agriculture and Rural Residential Exceptions Area (RREA). The vast majority of Surface Mine Site 294 was designated RREA. The plan designation of the part of the property designated Agriculture was changed so that it would match the plan designation of the majority of the subject property and surrounding development in the Klippel Road goal exception area. Additionally, the County determined that a part of the area with an underlying plan designation of Agriculture is non -resource land. Reasons justifying why the state policy embodied in Goal 3 should not apply in this situation are set forth in Exhibit "D" to Ordinance 2008-001, which fmdings are incorporated herein. PAGE 1 OF 1, EXHIBIT "A" ORDINANCE NO. 2008-001 (1/23/08) DESCRIPTION OF LANDS TO 11E INCLUDED IN PLAN AMENDMENT AS RURAL RESIDENTIAL EXCEPTION AREA A parcel of land located in Section 13, Township 17 South, Range 11 East, Willamette Meridian, Deschutes County, Oregon, being more particularly described as follows: "Description #1 Beginning at:the -.north quarter corner: of said. Section 13; thence along the north line of the northeast quaiter of said Section 13 South 89°47'50" East adistance`of 111:45 feet• to the True °Pointof Beginning of this description; thence continuing along:said north line. South 89°47'50" Easta distance of 480.26. feet; thence leaving said north line South. 00°03125" West a distance of 648:84 feet;. thence South 89°47'50" `East i distance of. 295.47. feet; thence South 00°00'00" West a distance of 1:66.21 feet; thence North 89°47'50" West a distance of 49.0.52 feet; thence South 00°15'50" :West a::distance of 580.85 feet; thence North .84°33'35 West a distance of 397.15 feet to the _north -south centerline of said Section 13; thence along said north -south centerline North 00°05'07" East a distance of 1248:04 feet;:: thence leaving said north -south centerline North .45°06'14" East a distance of 157:56 feet to the True Point of Beginning, the terminus of this description. Description #2. Beginning at the north quarter corner of said Section 13; thence along the north -south centerline of said Section 13 South 00°05'07" West a distance of 2714.87 feet to the True -Point of Beginning of this description; thence leaving .said north -south centerline South 052'12" East a distance of 58.61 feet to Tumalo Creek; thence along .Tumalo Creek ?out 41011'03" West a distance of 3.34 feet and South 61°41'31" West a distance of 64.13 feet; thence leaving Tumalo Creek North 00°05'07" East a distance of 33.06 feet to the True 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. • See attached map titled "EXHIBIT B", hereby incorporated by reference. REGISTERED PROFESSIONAL ND SURVEYOR OREGON JULY 1o, 2007 PATRICK GAGE COLE 79157 LS RENEWAL DATE: 12/31/07 1Z� 20 (01 PAGE 1 OF 1, EXHIBIT "B" ORDINANCE NO. 2008-001 (1-23-08) • i LANDS TO BE DESIGNATED RREA NORM OUARMIR =Nal SIG 14 T 17 4 R 11 5811,17SOT nue was sarozoT 4za25 LAND. SURYEi oRE.4111 GON:, . An..y fo. 2097: PATRICK -. OAGE'DOLE . 79tu ''Par4750V • RENEWAL ,P4T: :1V31/07 N. C111111ERLWE OF 'SECTION13 CENTERUNE OP SELMON 13 • NORTH SOAL r -far saysztrE 5861* 110Cr05.07T 3LOV Sii/7/7:131Y .13c S61'41711, 61.13. conaa.we OF SECT/ON 13 Al PAGE 1 OF 1, EXHIBIT "C" ORDINANCE NO. 2008-001 (1-23-08) ,=too 23.100.070. Goal 5 Inventory. Goal 5 Inventory — SITE NO: LEGAL DESCRIPTION NAME TYPE QUANTITY* QUALITY ACCESS/LOCATION 246 151010-00-00205, 207, 300, 302, 303 Tewalt S & G 10,000 Good Hwy 20 248 151012-00-00100 Cyrus Cinders 30.2 M Excellent Cloverdale Road 249 151025-00-02502, 2505 RL Coats Rock 250,000 ODOT Specs 251 151211-D0-01400,151214- A0-00800 Cherry S & G 125,000 Good 252 151200-00-04700, 04701 Thornburgh Rock 2.5 M Good 271 151036-00-00800 Deschutes County S & G 2 M . Mixed Harrington Loop Road 273 151117-00-00100 Deschutes County S & G 75,000 Excellent Fryrear RdfRedniond- Sisters • 274 151117-00-00700 Deschutes County *S & G Excellent Fryrear Road 275 . 151100-00-02400 Deschutes County S & G 175,000 Good Fryrear Jandfill 277 151011-00-01100 Oregon State Hwy S & G I00,000 ODOT Specs 278 151140-A0-00901, I51211- D0-01200 State of Oregon S & G 18,000 ODOT Specs 282 171000-00-00100 Crown Pacific Cinders 100,000 Fair 283 171000-00-00100 Crown Pacific Cinders 50,000 Fair 288 171111-00-00700 Tumalo Irrigation S & G 250,000 Good 292 171112-00-00900 RL Coats S & G 326,000 . ODOT Specs 293 17112-00-00500, 600, 700, 800 RL Coats S & 0 3 M ODOT Specs � . "- 9 6 777,6^e 296 171100-00-02702 Crown Pacific Cinders 100,000 Excellent Shevlin Park/Johnson Rd 297 171123-00-00100 ZrIZ 19r'IM nn nnsnn Crown Pacific Cinders . 60,000 Johnson Rd/Ihmalo 303 •313 Cascade Pumice umice Good 171207-00-00300 171433-00-00600 Cascade Pumice S&G 10,000 Good 313 314 171433-00-00600,120 171332-00-01100 Deschutes County Deschutes County S&G Storage 100,000 Good 315 316 140900-00-02100 140900-00-00202 Deschutes County Stott Dirt Rock 150,000 93,454 tons Black Butte Ranch S & G 317 322 322 140900-00-01300 141200-00-01801 Willamette Ind Cinders 7M . 1.2 M Good Dodds Road/Alfalfa ODOT Specs Good Highway 20. Good Fred Gunzner S & G 1.5 M Mixed 141200-00-01801 Gunzner Diatomite 500,000 Good 324 141200-00-00702 ODVA S & G 490,000 Good 326 141236-00-00300,30 1 US Bank Trust S&G 1.5 M Good Lower Bridge/Terrebonne Lower Bridge/ferrebonne Lower Bridge/Terrebonne 330 331 141328-00-00702,703 141329-00-00100,103 Larry Davis Cinders 50,000 Good EA Moore Cinders 100,000 Good 332 141329-00-00102 RL Coats Cinders 2M Good 333 141329-00-00104 Robinson Cinders 2.7 M Good Northwest Way/Terrebonne 335 141333-00-00890 Erwin Cinders 336 141333-00-00400, 500 US Bank Trust Cinders 100,000 4.5 M Excellent Good 339 341 141132-00-01500 161000-00-00106 Deschutes County Dirt 200,000 Fill 342 220900-00-00203 Young & Morgan Crown Pacific S&G 1M Good Pei -shall Way/Redmond Cinder Butte./Redmond Goodani Loop/Bend Cinders 345 161000-00-01000 Crown Pacific Cinders 346 161000-00-01000 Crown Pacific Cinders 200,000 50,000 50,000 Good Good Good PAGE 1 OF 3 EXHIBIT "D" ORDINANCE 2008-001 (1-23-08) Goal 5 Inventory - Mineral and Aggregate Sites PAGE 2 014' 3 EXIHBIT "D" ORDINANCE 2008-001 (1-23-08) SITE NO. LEGAL DESCRIPTION NAME TYPE QUANTITY* QUALITY ACCESS/LOCATION 347 161101-00-00300 Deschutes County Dirt 10,000 Good 351 161112-00-01401,1700, 2000 Gisler/Russell Cinders 150,000 Good Innes Mkt/Innes Butte 357 161136-D0-00100,161100-00- 10400, 10300 Tumalo Irrigation Cinders 1 M Johnson Road/1umalo 357 161136-D0-00100, 161100-00- 10400, 10300 Tumalo Irrigation S & G 500,000 Good 357 161136-D0-00100, 161100-00- 10400,10300 _ Tumalo Irrigation Pumice 500,000 Good 358 161231-D0-01100 Gisler S & G 100,000 ODOT Specs Hwy20/Tumalo 361 161222-00-02800 Oregon State Hwy Cinders 700,000 Good 366 161230-00-00000 Oregon State Hwy . S & G 40,000 ODOT Specs 368 161220-00-00200 Bend Aggregate ' S & G 570,000 Excellent Twin Bridgesfrumalo 370 161231-D0-00400 Bend Aggregate Plant Site Storage 379 181100-00-01600 Oregon State Hwy S & G 500,000 ' ODOT Specs 381 • 181125-00-12600, 181126-00- 01600 Pieratt Bros Cinders 50,000 Good 390 181214-00-00500,100 Deschutes County Dirt 2 M Landfill 391 181221-00-00200 _ Central OR Pumice Cinders 500,000 Good - 392 "181223-00-00300 Rose Rock " - IOM Est. ..,.. - 'Mixed 392 181223-00-00300 Rose Dirt 7.5 M Good 393 181225-00-01400 LT Contractors Cinders 12.5 M Good Arnold Mkt Rd/SE of Bend 394 181200-00-04400, 04411 Windlinx Cinders 270,000 Coarse Hwy 97/South of Bend 395 181200-00-04300 Oregon State Hwy Cinders 100,000 Good - 400 181300-00-04501, 04502 Eric Coats S & G 2.5 M ODOT Specs 404 191400-00-00200 Moon S & G 1.3 M Good 404 191400-00-00200 Moon Rock 800,000 - 2 M Good Hwy 20/East of Bend 405 191400-00-00600 Oregon State Hwy Aggregate 50,000 ODOT Specs 408 191600-00-01500 RL Coats S & G 3 M Good 413 201500-00-01400 Deschutes County S & G 30,000 Good/Excellent Hwy 20/East of Bend 414 201500-00-01500 Deschutes County S & G 30,000 Good/Excellent Hwy 20/East of Bend 415 201716-00-00700 Deschutes County S & G 30,000 Good/Excellent Hwy 20/East of Bend 416 201716-00-00200 Deschutes County S & G 30,000 Good/Excellent Hwy 20/East of Bend 417 201716-00-00900 Deschutes County S & G 30,000 Good/Excellent Hwy 20/East of Bend 418 201716-00-01000 Deschutes County S & G 30,000 Good/Excellent Hwy 20/East of Bend 419 201716-00-01300 Deschutes County S & G 30,000 Good/Excellent Hwy 20/East of Bend 421 212000-00-00900 RL Coats S & G 500,000 Excellent Hwy 20/Tumalo 423 211106-00-00700 Ray Rothbard S & G 100,000 Good 426 211100-00-00702 La Pine Redi-Mix S & G 1 M Good 427 211100-00-00701 Bill Bagley S & G 40,000 Good 431 221100-00-00600 Russell Cinders/ Rock 12 M/1.2 M Good Finley Butte 432 221100-00-00500 State of Oregon Cinders 160,000 Good 433 211300-00-00101 La Pine Pumice Lump Pumice 10 M Excellent 441 150903-00-00300 Willamette Ind S & G 11 M Good 442 150909-00-00400 Willamette Ind S & G 6 M Good 443 150917-00-00600 Willamette Ind Rock 150,000 Fair 453 161209, 10-00-00600, 301 Robert Fullhatt S & G 704,000 ODOT Specs 459 141131-00-05200 Deschutes County Cinders 50,000 Good 461 141300-00-01500, 1501,1502, 1503, 1505 Nolan S & G 350,000 Good 461 141200-00-01501, 1502,1503, 1505, 1600 Franklin Nolan Diatomite 2 M Good PAGE 2 014' 3 EXIHBIT "D" ORDINANCE 2008-001 (1-23-08) Goal 5 Inventory — Mineral and Aggregate Sites SITE NO. LEGAL DESCRIPTION NAME TYPE QUANTITY QUALITY ACCESS/LOCATION 465 .141333-00-00900 Oregon State Hwy Cinders 100,000 Good 466 J41333-00700600 Fred Elliott Cinders 5.5.M Good 467 141333-00-00601 Knorr Rock Co Cinders 5M . Good 469 141111-09-00100. , Deschutes.County .inders -. d 2M , Fair 475 151012-00-00600 Deschutes County Cinders 200,000.. Good Cloverdale Road 482 151300-00-00103 Deschutes Count 'Wit 2 M ' Good Negus Landfill 488 161230-00-00100, 600, 2000, 2100 :... Bend Aggregate . . . . S & G 400,000 ODOT Specs 496 191400-00-00500 • Taylor :S &G 1.8&M. • : Mixed Hwy 20 498 191400-00-02200 Oregon State Hwy S !Sr G 200,000: • .. . QDOT Specs 499. .191533 U0 002Q0 Oregon Stete°Hwy . S & G 50,000.... ODOT Specs 500 191500-00-00099 • Oregon State Hwy . S & G 130,000 ; ODOT Specs 501 191500-00-01600 Oregon State Hwy S & G 507000 ODOT Specs 503 191600-00-01300 Oregron State -Hwy . S.* G ' '•200,000 " ODOT Specs 505 201600-00-00400 Oregon State.Hwy Si G 215;000 ODOT Specs 506 201600-00=00600, 700, 800 •Oregon State Hwy S.& G •36,000. ` . . MOT Specs 508 201700-00-01000 State of Oregon S & G . 100,000 : ODOT Specs 515 201801-00-00100 Oregon State Hwy S & G 100,000 QDOT Specs 522 211900-00-01000 Oregon State Hwy S & G 300,000 ODOT Specs 524 212000-00-01900. Oregon State Hwy S & G 300,000 ODOT Specs 528. 2221.10-00-00600: Oregon State Hwy S & G 45;000 ODOT Specs 529 ' 221100-00-00300. OFegou-State HIV S & G 31,000 ODf3T•Specs " ' "533` ` • 222100-00-00800 Oregon State Hwy • S & 0 . . 1 M ODOT Specs 541 141035-00-02000, 2100, 2200, 2300, 2400, 2500, 2600 Cyrus Aggregate 528,000 Good Inc Portions of TL 1800/1900 542 151001-00-02700 Swarens Aggregate 80,000 Good 543 151013-00-00100 Cyrus Aggregate 1.1 M Good 600 . 191400-00-00700 Robinson S & G 3.8 M Good Hwy 20/East of Bend 601 211100-00-00700 La Pine Redi Mix S & 0 479,000 DEQ Specs Pauling Lake Road quantity in cubic yards unless not (Ord. 2005-031§ 3, 2005; Ord. 2003-019 § 1, 2003; Ord. 2002-005 § 1, 2002; Ord. 2001-047 § 4, 2001; Ord. 2001-038 § 2, 2001; Ord. 2001-027 § 1, 2001; Ord. 2000-017 § 1, 2000; Ord. 99-028, 1999; Ord. 99- 019, 1999; Ord. 96-076, 1996; Ord. 95-041, 1995; Ord. 94-050, 1994; Ord. 90-025, 1990; PL -20, 1979) PAGE 3 OF 3 EXIHBIT "D" ORDINANCE 2008-001 (1-23-08) REVIEWED LEGAL COUNSEL For Recording Stamp Only DECISION OF DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS FILE NUMBERS: PA -07-2 and ZC-07-2 APPLICANT: Harris Kimble 63560 Johnson Market Road Bend, Oregon 97701 PROPERTY OWNERS: Harris C. and Nancy Kimble 63560 Johnson Market Road Bend, Oregon 97701 (Tax Lots 819, 820, 821, 822, 823, 824, 825, 826 and 827) CLR, Inc. 703 NW Stonepine Drive Bend OR 97701 (Tax Lot 817) APPLICANT'S ENGINEER: Hickman, Williams & Associations, Inc. 698 N.W. York Drive Bend, Oregon 97701 APPLICANT'S ATTORNEY: Liz Fancher 644 N.W. Broadway Street Bend Oregon 97701 REQUEST: The applicant is requesting approval of a plan amendment from SM and Agriculture to Rural Residential Exception Area, a goal exception to Statewide Planning Goal 3, Agricultural Lands, and a zone change from SM to RR -10, for ten tax lots totaling 158.95 acres and located between Johnson Market Road and Tumalo Creek north of Buck Drive west of Bend. 1 STAFF REVIEWER: Chris Bedsaul, Associate Planner Page 1 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) HEARING DATE: July 24, 2007 RECORD CLOSED: September 14, 2007 I. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining (SM) * Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Combining Zone 2. Chapter 18.60, Rural Residential (RR -10) * Section 18.60.010, Purpose 3. Chapter 18.136, Amendments * Section 18.136.020, 010, Amendments * Section 18.136.020, Rezoning Standards B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.040, Final Action in Land Use Actions 2. Chapter 22.24, Land Use Action Hearings * Section 22.24.030, Notice of Hearing or Administrative Action * Section 22.24.140, Continuances or Record Extensions 3. Chapter 22.28, Land Use Action Decisions * Section 22.28.030, Decision on Plan Amendments and Zone Changes Title 23, the Deschutes County Comprehensive Plan C. Chapter 23.24, Rural Development * Section 23.240.020, Goals 2. Chapter 23.60, Transportation * Section 23.60.010, Transportation Page 2 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) 2. Chapter 23.68, Public Facilities * Section 23.68.020, Policies 3. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality * Section 23.96.030, Policies D. Oregon Administrative Rules (OAR) Chapter 660, Land Conservation and Development Commission Division 4, Interpretation of Goal 2 Exception Process Division 5, Agricultural Lands 3. Division 6, Forest Lands 4. Division 12, Transportation Planning 5. Division 15, Statewide Planning Goals and Guidelines 6. Division 23, Procedures and Requirements For Complying With Goal 5 II. FINDINGS OF FACT: A. Location: The Board adopts the Hearings Officer's findings except that the lots are identified on Deschutes County Assessor's Map 17-11-13. Zoning and Plan Designation: The subject property consists of the SM -zoned parts of the following legal lots of record that have a mixture of zoning districts and plan designations as follows: Tax Lot 817 -13.69 acres (including Tax Lot 809)(Tax Lots 817 and 809 are one lot of record), designated RREA, split -zoned SM and RR -10; Tax Lot 819 — 32.45 acres designated Agriculture and Rural Residential Exception Area (RREA), zoned Surface Mining (SM); • Tax Lot 820 9.03 acres designated Agriculture and RREA, zoned SM; • Tax Lot 821— 8.78 acres designated Agriculture and RREA, zoned SM;1 i The zoning ordinance that zoned the subject property SM, Ordinance No. 90-029, included a tax assessor's map to shows. the subject property and that indicates that the area is being rezoned from SMR to SM. In fact, land zoned RR -10, as well as land zoned SMR, was also rezoned. These RR -10 -zoned areas include the north central 45% of Tax Lot 819, the northwest comer of Tax Lot 820, the east part of Tax Lot 821 the west part of Tax Lot 822 adjacent to the part of this lot that retained RR -10 zoning, areas along the west boundary of Tax Lot 823, the south and east parts of Tax Lot 824, Tax Lot 825, the north east part of Tax Lot 826, Tax Lot 827 That area is surrounded by a bold line. Some parts of Tax Lot 821 burdened by the easement for Klippel Road may be located outside of the SM zoning boundary. The quality of the map. used to rezone the property is poor so it is not clear whether the zoning boundary is intended to follow parcel boundaries or the road easement. The County's LAVA system, however, shows the entire lot as being zoned SM. For the sake of clarity Page 3 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) • Tax Lot 822 — 24.01 acres (including Tax Lot 11401) designated RREA and split -zoned RR -10 and SM; • Tax Lot 823 — 44.95 acres designated RREA, zoned SM; • Tax Lot 824 — 21.38 acres designated RREA, zoned SM; • Tax Lot 825 - .68 acres designated RREA, zoned SM; • Tax Lot 826 — 10.04 acres designated RREA, zoned SM; a small, .02 acre part of this lot is designated Agriculture; and • Tax Lot 827 -- .96 acres designated RREA, zoned SM. For Tax Lot 821, the zoning ordinance that zoned the subject property SM, Ordinance No. 90- 029, included a tax assessor's map showing the subject property and indicating that the area is being rezoned from SMR to SM. In fact, land zoned RR -10, as well as land zoned SMR, was also rezoned. These RR -10 -zoned areas include the north central 45% of Tax Lot 819, the northwest comer of Tax Lot 820, the east part of Tax Lot 821, the west part of Tax Lot 822 adjacent to the part of this lot that retained RR -10 zoning, areas along the west boundary of Tax Lot 823, the south and east parts of Tax Lot 824, Tax Lot 825, the north east part of Tax Lot 826, Tax Lot 827 That area is surrounded by a bold line. Some parts of Tax Lot 821 are burdened by the easement for Klippel Road may be located outside of the SM zoning boundary. The quality of the map used to rezone the property is poor; thus it is not clear whether the zoning boundary is intended to follow parcel boundaries or the road easement. The County's LAVA system, however, shows the entire lot as being zoned SM. For the sake of clarity and to make sure that the entire area is rezoned to have the same zoning, the entire lot is discussed as having SM zoning and is included in the legal descriptions for the zone change from SM to RR - 10. The SM zoning for all the lots is the result of much of the subject property's inclusion as SM Site 294 on the county's Goal 5 inventory of significant mineral and aggregate sites. The portions of the subject property located within one-quarter mile from Johnson Market Road and Tumalo Creek are zoned Landscape Management (LM). And the entire subject property is zoned Wildlife Area Combining Zone (WA) because of its location within the Tumalo Deer Winter Range. The majority of the subject property, including all of the property zoned RR -10 and most of the property zoned SM, is designated Rural Residential Exception Area (RREA). A small portion of the northeast quadrant of the subject property that is zoned SM is designated Agriculture. A very small, .02 acre, part of Tax Lot 826 is also designated Agriculture. C. Site Description: The Board adopts the Hearings Officer's findings but amends the second paragraph to read "The record indicates some or all of these water rights are currently leased for in -stream use." Soils: According to the Natural Resource Conservation Service (NRCS) data in the record, the majority of the subject property is comprised of the following four soil units: and to make sure that the entire area is rezoned to have the same zoning, the entire lot is discussed as having SM zoning and is included in the legal descriptions for the zone change from SM to RR -10. Page 4 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) 1. Soil Unit 85A, Lundgren. This soil unit consists of deep, well -drained sandy loam soil over gravel and sands from glacial out -wash. The size of the gravel varies from a few inches to 5 -feet in diameter. This soil unit is classified as Class VI soil with or without irrigation. Soil Unit 61C, Henkle-Fryrear-Lava flows. This soil complex typically contains a majority of soils that are rated Class VII or worse, with or without irrigation. 3. Soil Unit 62D, Henkle-Lava Flow-Fryrear complex. This . soil unit consists of shallow, gravelly soil over basalt lava flows. This soil unit is classified as Class VII. 4. Soil Unit 157C, Wanoga-Fremkle-Rock outcrop. This soil unit consists of well drained sandy loam over cinders that range in size from 1" to 4" diameter. This soil unit is classified as Class VI soil with or without irrigation. The rock outcrop part of this soil complex is Class VIII. The site-specific soils analysis shows the property is comprised of a variety of soil types classified as Class VI, VII and VIII with or without irrigation. The site-specific soils analysis submitted by the applicant refined the areas where soils that are a part of a complex are located. For instance, it determined that the northeast part of the property mapped by NRCS as Soil Unit 157C is Soil Class 155C. The Soil Unit 155C soil unit is Class VI soil with or without irrigation. Other, similar refinements were made for the other soil complexes found on the site. The results of the soil survey are provided in the findings, below. E. Surrounding Zoning and Land Uses: The subject property is surrounded by approximately 20 tax lots described as follows: North: A little over one half of the subject property's north boundary adjoins two lots that are zoned RR -10 and plan designated RREA. These lots are Tax Lot 809 owned by CLR, Inc. and Tax Lot 1500 owned by The Joyce E. Coats Revocable Trust. The east part of the north boundary of the subject property adjoins land zoned SM and planned for Surface Mining. The land to the north of Tax Lot 817, the CLR, Inc. land included in the zone change, is zoned EFU-TRB and designated Agriculture. Further to the north and northeast is land designated Agriculture and zoned EFU-TRB. Land further to the northwest is designated Forest and zoned F-2. South: Abutting and surrounding land to the south is designated RREA and zoned RR -10 and consists of the Klippel Acres Subdivision developed with single-family dwellings on lots ranging in size from 2.5 to 10 acres. East: Abutting land to the east consists of approximately 8 tax lots zoned designated RREA, zoned RR -10, and developed with rural residences and in one or two cases with very small- scale farming activity. In addition, the small portion of the subject property abutting Tumalo Creek adjoins land across the creek that is within the Bend urban reserve area. West: Abutting and surrounding land to the west is designated RREA, zoned RR -10, and Page 5 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) developed with rural residences, many of which are located within the Klippel Acres Subdivision. Further to the west across Johnson Market Road is land zoned RR -10 and F-2. F. Procedural History: The Board of County Commissioners ("Board") adopts the Hearings Officer's findings and adds that this comprehensive plan amendment does involve a goal exception for land designated farm or forest use. No appeal of the Hearings Officer's decision was filed by a party of interest or a review was not initiated by the Board for PA07-2 and ZCO7-2. Therefore, DCC 22.28.030(C) requires that the Board conduct a de novo public hearing. The Board conducted a de novo public hearing on January 7, 2008. G. Proposal: The Board adopts the Hearings Officer's findings. Public Agency Comments: The Board adopts the Hearings Officer's findings. Public Notice and Comments: The Board adopts the Hearings Officer's findings and adds that notice of the hearing before the Board was published in the The Bulletin and sent to those that appeared in person or in writing before the Hearings Officer. J. Lot of Record: The Board adopts the Hearings Officer's findings. III..: CONCLUSIONS OF LAW: PROCEDURES Notice A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.24, Land Use Action Hearings Section 22.24.030, Notice of Hearing or Administrative Action Individual Mailed Notice 1. Except as otherwise provided for herein, notice of a land use application shall be mailed at least 20 days prior to the hearing for those matters set for hearing. * * *. Written notice shall be sent by mail to the following persons: * * * Owners of record of property as shown on the most recent property tax assessment roll of property located: * * * Page 6 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) 2. Within 250 feet of the property that is the subject of the notice where the subject property is outside an urban growth boundary and not within a farm or forest zone, except where greater notice is required under DCC 22.24.030(A)(4). B. Posted Notice 1. Notice of a land use application for which prior notice procedures are chosen shall be posted on the subject property for at least 10 continuous days prior to any date set for receipt of comments. Such notice shall, where practicable, be visible from any adjacent public way. * * * C. Published Notice In addition to notice by mail and posting, notice of an initial hearing shall be published in a newspaper of general circulation in the County at least 20 days prior to the hearing. Continuance and Record Extension b. Section 22.24.140, Continuances or Record Extensions A. Grounds Prior to the date set for an initial hearing, an applicant shall receive a continuance upon any request. * * Any party is entitled to a continuance of the initial evidentiary hearing or to have the record left open in such a proceeding in the following instances: a. Where additional documents or evidence are submitted by any party; or b. Upon a party's request made prior to the close of the hearing for time to present additional evidence or testimony. * * * 3. The grant of a continuance or record extension in any other circumstances shall be at the discretion of : the Hearings Officer. Page 7 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) FINDINGS: The Board adopts the Hearings Officer's findings and adds that any notice irregularities for the Hearings Officer proceedings are harmless error in that all parties have another opportunity to present testimony before the Board without the necessity of an appeal. Process for Approval of Plan Amendment and Zone Change 2. Chapter 22.28, Land Use Action Decisions c. Section 22.28.030, Decision on Plan Amendments and Zone Changes In considering all quasi-judicial zone changes and those quasi- judicial plan amendments on which the Hearings Officer has authority to make a decision, the Board of County Commissioners shall, in the absence of an appeal or review initiated by the Board, adopt the Hearings Officer's decision. No argument or further testimony will be taken by the Board. C. Plan amendments and zone changes requiring an exception to the goals concerning lands designated for forest or agricultural use shall be heard de novo before the Board of County Commissioners without the necessity of filing an appeal, regardless of the determination of the Hearings Officer or Planning Commission. Such hearing before the Board shall otherwise be subject to the same procedures as an appeal to the Board made under DCC Title 22. D. . ; Notwithstanding DCC 22.28.03(C), when a plan amendment subject to a DCC 22.28.030(C) hearing before the Board of County Commissioners has been consolidated for hearing before the Hearings Officer with a zone change or other permit application not requiring a hearing before the board under DCC 22.28.030(C), any party wishing to obtain review of the Hearings Officer's decision on any of those other applications shall file an appeal. The plan amendment shall be heard by the board consolidated with the appeal of those other applications. FINDINGS: The Board adopts the Hearings Officer's finding and adds that the Board heard this matter on January 7, 2008. PLAN AMENDMENT FINDINGS: The Board adopts the Hearings Officer's finding and adds that the very small part of Tax Lot 826 adjacent to Tumalo Creek (.02 acres) that is designated Agriculture. Furthermore, the Board amends Page 8 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) the third sentence of paragraph 2 to read, "However, most of the subject property also was zoned SMR to reflect its surface mining history. The rest of the subject property was zoned RR -10." COMPREHENSIVE PLAN GOALS AND POLICIES B. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. Chapter 23.24, Rural Development a. Section 23.24.020, Goals 1. To preserve and enhance the open spaces, rural character, scenic values and natural resources of the County. FINDINGS: The Board adopts the Hearings Officer's findings. 2. To guidethe location and design of rural development so as to minimize the public costs of facilities and services, to avoid unnecessary expansion of service boundaries, and to preserve and enhance the safety and viability of rural land uses. FINDINGS: The Board adopts the Hearings Officer's findings. 3. To provide for the possible long-term expansion of urban areas while protecting the distinction between urban (urbanizing) land and rural lands. FINDINGS: The Board adopts the Hearings Officer's findings. 2. Chapter 23.60, Transportation a. Section 23.60.010, Transportation The purpose of .DCC 23.60 is to develop a transportation system that meets the needs of Deschutes County residents while also considering regional and state needs at the same time. This plan addresses a balanced transportation system that includes automobile, bicycle, rail, transit, air, pedestrian and pipelines: It reflects existing land use plans, policies and regulations that affect the transportation system. FINDINGS: The Board adopts the Hearings Officer's findings. 3. Chapter 23.68, Public Facilities Page 9 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) Section 23.68.020, Policies 1. Public facilities and services shall be provided at levels and in areas appropriate for such uses based upon the carrying capacity of the land, air and water, as well as the important distinction that must be made between urban and rural services. In this way public services may guide development while remaining in concert with the public's needs. 2. Future development shall depend on the availability of adequate local services in close proximity to the proposed site. Higher densities may permit the construction of more adequate services than might otherwise be true. Cluster and planned development shall be encouraged. 3. New development shall not be located so as to overload existing or planned facilities, and developers or purchasers should be made aware of potentially inadequate power facilities in rural areas. * * * 9. New development shall not be located so as to overload existing or planned facilities, and developers or purchasers should be made aware of potentially inadequate power facilities in rural areas. FINDINGS: The Board adopts the Hearings Officer's findings. 4. Chapter 23.96, Open Space, Areas of Special Concern, and Environmental Quality a. Section 23.96.030, Policies * * * 10. As part of subdivision or other development review, the County shall consider the impact of the proposal on the air, water, scenic and natural resources of the County. Specific criteria for such review should be developed. Compatibility of the development with those resources shall be required as deemed appropriate at the time given the importance of those resources to the County while considering the public need for the proposed development. FINDINGS: The Board adopts the Hearings Officer's findings. STATEWIDE GOALS AND ADMINISTRATIVE RULES Page 10 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) Agriculture to RREA Agricultural Lands FINDINGS: The Board adopts the Hearings Officer's findings but amends the paragraph to say "(2) the portion of the Agriculture -designated land that does qualify as "agricultural land" based on soil classification nevertheless is unsuitable for farm use because the soils are unproductive, and the land it is .too small in size, isolated and too far removed to be put to productive farm use in conjunction with nearby EFU-zoned land. C. Oregon Administrative Rules (OAR) Chapter 660, Land Conservation and Development Commission 1. Division 15, State-wide Planning Goals and Guidelines a. OAR 660-015-0000(3), Agricultural Lands GOAL 3 To preserve and maintain agricultural lands. Agricultural lands shall be .preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state's agricultural land use policy expressed in ORS 215.243 and 215.700. DEFINITIONS Agricultural Land -- * * * In eastern Oregon is land of predominantly Class I, II, III, IV, V and VI soils as identified in the Soil Capability Classification System of the United States Soil Conservation Services and 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. 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. (Emphasis added.) Page 11 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) 2. Division 33, Agricultural Land a. OAR 660-033-0030, Agricultural Land (1) All land defined as "agricultural land" in OAR 660-033-0020(1) shall be inventoried as agricultural land. FINDINGS: The threshold question is whether the Agriculture -designated portion of the subject property qualifies as "agricultural land" under Goal 3 and OAR 660-033-0020(1). According to Exhibits "A" and "B" to Ordinance No. 92-060, 17.52 acres of the following lots are Agriculture - designated land. According to soils information provided by the applicant's soils expert, the subject property was comprised of the following acreage and soil classifications: Lot Size of Area % of Soil Type VII -VIII Tax Lot 819 (part) 1.50 acres None Tax Lot 820 (part) 7.40 acres None Tax Lot 821 (most) 8.50 acres 61% of entire parcel2 Tax Lot 826 .02 acres 100% This evidence shows that 8.9 acres of the subject property designated Agriculture (in Tax Lots 819 and 820) included Class VI or better soils and therefore constituted "agricultural lands," and 8.52 acres of the subject property (in Tax Lots 821 and 826) are predominantly or exclusively Class VII and VIII soils and, therefor; did not constitute "agricultural lands." (2) When a jurisdiction determines the predominant soil capability classification of a lot or parcel it need only look to the land within the lot or parcel being inventoried. However, whether land is "suitable for farm use" requires an inquiry into factors beyond the mere identification of scientific soil classifications. The factors are listed in the definition of agricultural land set forth at OAR 660-033- 0020(1)(a)(B). This inquiry requires the consideration of conditions existing outside the lot or parcel being inventoried. Even if a lot or parcel is not predominantly Class I-IV soils or suitable for farm use, Goal 3 nonetheless defines as agricultural "lands in other classes which are necessary to permit farm practices to be undertaken on adjacent or nearby lands." A determination that a lot or parcel is not agricultural land requires findings supported by substantial evidence that addresses each of the factors set forth in OAR 660-033- 0020(1). (Emphasis added.) • FINDINGS: 2 A small part of Tax Lot 821, the easternmost part of the panhandle, is designated RREA. The soil study analyzed the soil of the entire tax lot and found that 61% of the tax lot was comprised of soil rated Class VII. The soil in the panhandle area is rated Class VI. When it is excluded from the part of the property designated "Agriculture" by the plan map, the overall percentage of the lot that is designated Agriculture that is Class VII soil increases above 61%. Page 12 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) The Board adopts the Hearings Officer's findings and adds to the bulleted list that the eastern part of Tax Lot 821 is designated RREA. (3) Goal 3 attaches no significance to the ownership of a lot or parcel. when determining whether it is agricultural land. Nearby or adjacent land, regardless of ownership, shall be examined to the extent that a lot or parcel is either "suitable for farm use" or "necessary to permit farm practices to be undertaken on adjacent or nearby lands" outside the lot or parcel. FINDINGS: Tax Lot 821 adjoins land designated RREA and, in small part, Agriculture and zoned RR -10 on. the east that is not own by the applicant. Tax Lot 821 adjoins land. designated Agriculture and zoned SM on the north (part of Tax Lots 819 and 820) owned by the applicant and for portions of which the applicant has requested approval of an exception to Goal 3. The west boundary of Tax Lot 821 adjoins a part of Tax Lot 819 owned by the applicant that is designated RREA and zoned SM. The record indicates, and the Hearings Officer's site visit observations confirmed, that one or two parcels east of the subject property could be considered "hobby farms" with small areas of cultivated pasture. However, the owners of these parcels have not offered to utilize the portions of Tax Lots 819, 820 and 821 in conjunction with their "farm use." the Board finds that the Agriculture -designated portions of the subject property and the hobby farms in the area are both too small to be put to productive farm use alone or in conjunction with one another. Therefore, for these reasons, and for the reasons set forth in the goal exception findings below, the Board finds that the portions of Tax Lots 819, 820 and 821 designated Agriculture are not necessary to permit farm practices on the rest of the subject property or other surrounding property owned by others. (4) When inventoried land satisfies the definition requirements of both agricultural land and forest land, an exception is not required to show why one resource designation is chosen over another. The plan need only document the factors . that were used to select an agricultural, forest, agricultural/forest, or other appropriate designation. FINDINGS: The Board finds this criterion is not applicable because the soil capability classifications for the Agriculture -designated portions of Tax Lots 821 and 826 and for Tax Lot 821 in its entirety do not satisfy the .definition of agricultural land (Class VII and VIII), and the Board agrees with the Hearings Officer that the Class VI soils on the remainder of Tax Lot 821 and Tax Lots 819 and 820 do not qualify as "forest land." (5) Notwithstanding the defmition of "farm use" in ORS 215.203(2)(a), profitability or gross farm income shall not be considered in determining whether land is agricultural land or whether Goal 3, "Agricultural Land," is applicable. FINDINGS: The Board finds that because the subject property is not engaged in farm use, has not been engaged in farm use since it was zoned SM, and is predominantly designated RREA, there is no Page 13 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001._(1-23-08) basis from which to determine whether or not it could be profitably put to farm use. However, for the reasons discussed in the findings above and below, the Board finds the Agriculture -designated portions of the subject property simply cannot be put to productive farm use alone or in conjunction with other lands designated or zoned for agriculture, and therefore profitability and gross income considerations are not relevant. The quoted section of the administrative rule, OAR 660-033-0030 (5), has been held to be invalid by the Oregon Supreme Court in the case of Wetherell v. Douglas County, 342 Or 666, 160 P3d 614 (2007). It determined that gross income and profitability are relevant considerations in determining whether land is "Agricultural Land," as defined by Goal 3. The Supreme Court held that "farm use" is an activity conducted by a person who intends to make a profit in money by undertaking the activity. Thus, profitability and gross income are relevant considerations. In this case, a prudent farmer would not acquire the land and put it to farm use with an expectation of making a profit in money from the endeavor. (6) More detailed data on soil capability than is contained in the U.S. Natural Resources Conservation Service (NRCS) soil maps and soil surveys may be used to define agricultural land. However, the more detailed soils data shall be related to the U.S. Natural Resources Conservation Service (NRCS) land capability classification system. FINDINGS: In support of its applications, the applicant submitted a report entitled "Soil Survey of Harris Kimble Property" dated December. 2006 and prepared by Steve Wert, a certified soil scientist with Wert and Associates, Inc. The study indicates the Kimble part of the subject property is comprised of three major soils types, described as follow: 1. Soil Unit 85A; Lundgren. The Board adopts the Hearings Officer's findings and adds that this soil is found on 38% or 58.51 acres of the Kimble part of the subject property. 2. Soil Unit 62D, Henkle-Lava Flow. The Board adopts the Hearings Officer's findings and adds that this soil is found on 9% or 13.60 acres of the Kimble part of the subject property. 3. Soil Unit 155C, Wanoga. The Board adopts the Hearings Officer's findings and adds that this soil is found on 6% or 8.66 acres of the Kimble part of the subject property. Mr. Wert also identified six other soils on the subject property: (1) Lundgren -sand phase; (2) surface mined; (3) steep side slopes; (4) unnamed soil; (5) pond bottom; and (6) road. According to the soils map attached to Mr. Wert's soils analysis, he found that 19 percent of the subject property owned by Mr. Kimble consists of Class VII or VIII soils. _Based on his detailed soils analysis for the portion of the subject property designated Agriculture, Mr. Wert found that much of this area is comprised of Class VII soils. The applicant argues, and the Board agrees, that based on Mr. Wert's site-specific soils analysis the majority of soils on Tax Lot 821 and all of the Agriculture -designated portion of Tax Lot 826 do not constitute "agricultural land." The rest of the area designated Agriculture contains Class VI soils that are not high value when irrigated and requires approval of a goal exception, as discussed below. Page 14 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) Exception to Goal 3 3. 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 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;" * * *. * * * FINDINGS: The applicant is seeking approval of an exception to Goal 3 for the portions of Tax Lots 819, 820 and 821 designated Agriculture that constitute "agricultural land." As shown in the table set forth on page 14 above, approximately 8.9 acres on these three tax lots are comprised of soils classified as Class VI or better. The applicant has also asked that the County map the nonagricultural lands in the exception area to make it clear that these lands are no longer designated Agriculture or to include a designation on the comprehensive plan map that the nonagricultural lands are no longer designated Agriculture. OAR 660-004-0018, Planning and Zoning for Exception Areas (1) Purpose. This rule explains the requirements for .adoption of plan and zone designations for exceptions. Exceptionsto one . goalor a portion of one goal donot relieve a jurisdiction from remaining goal requirements and do not authorize uses, densities, public facilities and services, or activities other than those recognized or justified by the applicable exception. Physically developed or . irrevocably committed exceptions under OAR 660-004-0025 and 660-004-0028 are intended to recognize and allow continuation of .existing types of development in the exception area. Adoption of plan and zoning provisions that would allow changes in existing types of uses, densities, or services requires the application of the standards outline in this rule. FINDINGS: The applicant is requesting an exception to Goal 3 for that part of the subject property that was not included in the exception areas mapped in 1979 and 1992 on the basis that this area is irrevocably committed to rural residential use and because part of the area consists of land that is not agricultural land.. Page 15 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) (2) For "physically developed" and "irrevocably committed" exceptions to the goals, plan and zone designations shall authorize a single numeric minimum lot size and shall limit uses, density, and public facilities and services to those: (a) That are the same as the existing land uses on the exception site; FINDINGS: The Board adopts the Hearings Officer's findings. (b) That meet the following requirements: (A) The rural uses, density, and public facilities and services will maintain the land as "Rural Land" as defined by the goals and are consistent with all other applicable Goal requirements; and FINDINGS: The Board adopts the Hearings Officer's findings. (B) The rural uses, density, and public facilities and services will not commit adjacent or nearby resource land to nonresource use as defined in OAR 660-004- 0028; and 1 FINDINGS:The Board adopts the Hearings Officer's findings but amends a portion of the section as follows: The record indicates the closest EFU-zoned land is located north of the portion of Tax Lot 817 located in Section 13, on Tax Lot 800, Assessor's Map 17-11-12. However, there are two intervening RR -10 zoned tax lots — Tax Lots 809 and 1500 — that would provide a buffer between rural residences on the subject, property and farm use on Tax Lot 800. Finally, the record indicates the closest forest -zone land touches the northwest corner of the portion of Tax Lot 817 in Section 13. The RREA-designated Tax Lots 809, 817, 819 (part in W 1/2 of Section 13), 822 and 1500 all separate the part of the property designated Agriculture from the forest zone. The applicant argues, and the Board agrees, that approval of the proposed goal exception will not commit this land to nonresource uses because most of the F-2 zoned land is located on the west side of Johnson Market Road, and there is an RR -10 zoned parcel developed with a residence and RR -10 zoned lots suited for development with residences located between the Agricultural -designated part of the subject property and Johnson Market Road. For these reasons, the Board finds the proposed goal exception is consistent with this criterion. (C) The rural uses, density, and public facilities and services are compatible with adjacent or nearby resource uses; FINDINGS: The Board adopts the Hearings Officer's findings. (c) For which the uses, density, and public facilities and services are consistent with OAR 660-022-0030, "Planning and Zoning Page 16 of 25, EXHIBIT"E" ORDINANCE NO. 2008-001 (1-23-08) of Unincorporated Communities," if applicable; or FINDINGS: The Board adopts the Hearings Officer's findings. (d) That are industrial development uses, and accessory uses subordinate to the industrial development, in buildings of any size and type, provided the exceptions area was 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 Board adopts the Hearings Officer's findings. (3) Uses, density, and public facilities and services not meeting section (2) of this rule may be approved only under provisions for a reasons exception as outlined in Section (4) of this rule and OAR 660-004- 0020 through 660-004-0022. FINDINGS: The Board adopts the Hearings Officer's findings. (4) "Reasons" Exceptions: FINDINGS: The Board adopts the Hearings Officer's findings. b. OAR 660-004-0015, Inclusion as Part of the Plan *** FINDINGS: The Board adopts the Hearings Officer's findings. c. OAR 660-004-0028, Exception Requirements for Land Irrevocably Committed to Other Uses (1) A local government may adopt an exception to a goal when the land subject to the exception is irrevocably committed to uses not allowed by the applicable goal because existing. adjacent uses and other relevant factors make uses allowed by the applicable goal impracticable: FINDINGS: The Board adopts the Hearings Officer's findings. (a) A "committed exception" is an exception taken in accordance with ORS 197.732(1)(b), Goal 2, Part II(b), and with the provisions of this rule: Page 17 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) FINDINGS: The Board adopts the Hearings Officer's findings. (b) For the purposes of this rule, an "exception area' is that area of land for which a "committed exception" is taken; FINDINGS: The Board adopts the Hearings Officer's findings. (c) An "applicable goal," as used in this section, is a statewide planning goal or goal requirement that would apply to the exception area if an exception were not taken. FINDINGS: The Board adopts the Hearings Officer's findings. (2) Whether land is irrevocably committed depends on the relationship between the exception area and the lands adjacent to it. The findings for a committed exception therefore must address the following: FINDINGS: As discussed in the findings above, there is one area on the subject property designated Agriculture for which the applicant is requesting- an exception to Goal 3 and for which an exception is required by State law. This is an area that is approximately 8.9 acres in size located on Tax Lots 819 and 820. The applicant's burden of proof notes that both of these areas are part of legal lots of record that already are, in part, included in the existing RREA. The applicant is also requesting the goal exception include the Agriculture -designated parts of Tax Lot 826 and Tax Lot 821 that consist of land that is not "agricultural land" within the larger RREA to avoid confusion in the future and to reflect the character and development in the surrounding area. (a) The characteristics of the exception area; (b) The characteristics of the adjacent lands; (c) The relationship between the exception area and the lands adjacent to it; and FINDINGS: The small portion of Tax Lot 826 subject to the proposed goal exception is a strip of land located between Tumalo Creek and the eastern boundary of the existing RREA, essential consisting of rimrock within Tumalo Creek Canyon. The applicant's burden of proof notes this land may in fact have been included in the RREA but may have inadvertently not been included in the RREA map. The portions of Tax Lots 819, 820 and 821 subject to the proposed goal exception consist of part of the reclaimed SM Site 294 and each lot is, in part, located in the existing RREA. As discussed above, Tax Lot 819 already is developed with a single-family dwelling.. And as discussed in detail in the findings above, these areas include poor quality Class VI soils or Class VII and VIII (non-agricultural) soils. In addition, the record indicates Klippel Road is located adjacent to or on Tax Lots 819, 820 and 821. The lands adjacent to the .portions of these tax lots subject to the proposed goal exception are designated RREA, zoned RR -10 or SM, are smaller than the 10 -acre minimum lot size in the RR -10 Zone and have been, or are eligible to be, developed with rural residences. Page 18 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) (d) The other relevant factors set forth in OAR 660-004-0028(6). FINDINGS: The factors of OAR 660-004-0028(6) are addressed in the findings below. (3) Whether uses or activities allowed by an applicable goal are impracticable as that term is used in ORS 197.732(1)(b), in Goal 2, Part II(b), and in this rule shall be determined through consideration of factors set forth in this rule. Compliance with this rule shall constitute compliance with the requirements of Goal 2, Part II. It is the purpose of this rule to permit irrevocably committed exceptions where justified so as to provide flexibility in the application of broad resource protection goals. It shall not be required that local governments demonstrate that every use allowed by the applicable goal is "impossible." For exceptions to Goals 3 and 4, local governments are required to demonstrate that only the following uses or activities are impracticable: (a) Farm use as defined in ORS 215.203: FINDINGS: The Board adopts the Hearings Officer's findings. (b) Propagation or harvesting of a forest product as specified in OAR 660-033-0120; and (c) Forest operations or forest practices as specified in OAR 660- 006-0025(2)(a). FINDINGS: The Board adopts the Hearings Officer's findings. (6) Findings for a committed exception shall address the following factors: (a) Existing adjacent uses; FINDINGS: The Board adopts the Hearings Officer's findings. (b) Existing public facilities and services (water and sewer lines, etc.): FINDINGS: The Board adopts the Hearings Officer's findings. (c) Parcel size and ownership patterns of the exception area and adjacent lands: (A) Consideration of parcel size and ownership. patterns Page 19 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) under subsection (6)(c) of this rule shall include an analysis of how the existing development pattern came about and whether fmdings against the Goals were made at the time or partitioning or subdivision. Past land decisions made without application of the Goals do not in themselves demonstrate irrevocable commitment of the exception area. Only if development (e.g., physical improvements such as roads and underground facilities) on the resulting parcels or other factors make unsuitable their resource use or the resource use of nearby lands can the parcels be considered to be irrevocably committed. Resource and nonresource parcels created pursuant to the applicable goals shall not be used to justify a committed exception. For example, the presence of several parcels created for nonfarm dwellings or an intensive commercial agricultural operation under the provisions of an exclusive farm use zone cannot be used to justify a committed exception for land adjoining those parcels; FINDINGS: The Board adopts the Hearings Officer's findings. 03) Existing parcel sizes and contiguous ownerships shall be considered together in relation to the land's actual size. For example, several contiguous undeveloped parcels (including parcels separated only by a road or highway) under one ownership shall be considered as one farm or forest operation. The mere fact that small parcels exist does not in itself constitute irrevocable commitment. Small parcels in separate ownerships are more likely to be irrevocably committed if the parcels are developed, clustered in a large group or clustered around a road designed to serve these parcels. Small parcels in separate ownerships are not likely to be irrevocably committed if they stand alone amongst larger farm or forest operations, or are buffered from such operations. FINDINGS: The Board adopts the Hearings Officer's findings except that the Board finds that Tax Lot 819 is owned by Harris and Nancy Kimble rather than by Harris Kimble only. (d) Neighborhood and regional characteristics; FINDINGS: The Board adopts the Hearings Officer's findings. Page 20 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) (e) Natural and man-made features or other impediments separating the exception area from adjacent resource land. Such features or impediments include but are not limited to roads, watercourses, utility lines, easements or rights-of-way that effectively impede practicable resource use of all or part of the exception area; FINDINGS: The Board adopts the Hearings Officer's findings. (f) Physical development according to OAR 660-004-0025; and FINDINGS: OAR 660-004-0025 authorizes "physically developed" goal exceptions for circumstances in which land has been physically developed with structures, roads, sewer and water facilities and utility facilities. The applicant has not requested a "physically developed" goal exception, but correctly notes that, physical development is a factor to be considered for an "irrevocably committed" goal exception. The record indicates the only development on the part of the subject property designated Agriculture consists of an existing single-family dwelling on Tax Lot 819, one private road — Klippel Road -- and a surface mine on a significant portion of the property. The applicant argues, and the Board agrees, that while these developments standing alone do not justify the proposed goal exception, they provide support for the applicant's proposal in conjunction with the other factors discussed in these findings that indicate the subject property is irrevocably committed to nonresource -- i.e., rural residential -- use. (g) Other relevant factors. FINDINGS: The Board adopts the Hearings Officer's findings. Forest Lands 4. Division 6, Forest Lands a. OAR 660-15-0000(4), Forest Lands FINDINGS: Goal 4 provides as follows: To conserve forest lands by maintaining the forest land base and to protect the state's forest economy by making possible economically efficient forest practices that assure the continuous growing and harvesting of forest tree species as the leading use on forest land consistent with sound management of soil, air, water, and fish and wildlife resources and to provide for recreational opportunities and agriculture. Forest lands are those lands acknowledged as forest lands as of the date of adoption of this goal. amendment. Where a plan is not acknowledged or a plan amendment involving forest lands is proposed, forest land shall include lands which are suitable for commercial forest uses including adjacent or nearby lands which arenecessary to permit forest Page 21 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) operations or practices and other forested lands that maintain soil, air, water and fish and wildlife resources. OAR 660-06-001, Purpose (1) The purpose of the Forest Lands Goal is to conserve forest lands and to carry out the legislative policy of ORS 215.700. (2) To accomplish the purpose of conserving forest lands, the governing body shall: (3) (a) Designate forest lands on the comprehensive plan map as forest lands consistent with Goal 4 and OAR Chapter 660, Division 6; (b) Zone forest lands for uses allowed pursuant to OAR Chapter 660, Division 6 on designated forest lands; and (c) Adopt plan policies consistent with OAR Chapter 660, Division 6. This rule provides for a balance between the application of Goal 3 "Agricultural Lands" and Goal 4 "Forest Lands," because of the extent of lands that may be designated as either agricultural or forest land. FINDINGS: The Board adopts the Hearings Officer's findings. Surface Mining Lands 5. Division 23, Procedures and Requirements for Complying with Goal 5 a. OAR 660-023-010, Definitions As used in this division, unless the context requires otherwise: * *•* (5) "PAPA" is a "post -acknowledgement plan amendment." The term encompasses actions taken in accordance with ORS 197.610 through 197.625, including amendments to an acknowledged comprehensive plan or land use regulation and the adoption of any new plan or land use regulation. The term does not include periodic review actions taken in accordance with ORS 197.628 through 197.650. FINDINGS: The Board adopts the Hearings Officer's findings. Page 22 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) Transportation 6. Division 12, Transportation a. OAR 660-15-0000(12), Transportation FINDINGS: The Board adopts the Hearings Officer's findings. Compliance with Other Statewide Goals Goal 1, Citizen Involvement. The Board adopts the Hearings Officer's findings. Goal 2, Land Use Planning. The Board adopts the Hearings Officer's findings. Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The Board adopts the Hearings Officer's findings. Goal 6, Air, Water and Land Resources Quality. The Board adopts the Hearings Officer's findings. Goal 7, Areas Subject to Natural Disasters and Hazards. The Board adopts the Hearings Officer's findings. Goal 8, Recreational Needs. The Board adopts the Hearings Officer's findings. Goal 9, Economy of the State. The Board adopts the Hearings Officer's findings. Goal 10, Housing. The Board adopts the Hearings Officer's findings. Goal 11, Public Facilities and Services. The Board adopts the Hearings Officer's findings. Goal 13, Energy Conservation. The Board adopts the Hearings Officer's findings. Goal 14, Urbanization. The Board adopts the Hearings Officer's findings. Goals 15 through 19. The Board adopts the Hearings Officer's findings. ZONE CHANGE D. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance FINDINGS: The Board adopts the Hearings Officer's findings. 1. Chapter 18.52, Surface Mining Zone (SM) Page 23 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) a. Section 18.52.200, Termination of the Surface Mining Zoning and Surrounding Surface Mining Impact Area Combining Zone A. When a surface mining site has beenfully or partially mined, and the operator demonstrates that a significant resource no longer exists on the site, and that the site has been reclaimed in accordance with the reclamation plan approved by DOGAMI or the reclamation provisions of this title, the property shall be rezoned to the subsequent use zone identified in the surface mining element of the Comprehensive Plan. B. Concurrent with such rezoning, any surface mining impact area combining zone which surrounds the rezoned surface mining site shall be removed. Rezoning shall be subject to chapter 18.136 and all other applicable sections of this title, the Comprehensive Plan and Deschutes County Code Title 22, the Uniform Development Procedures Ordinance. FINDINGS: The Board adopts the Hearings Officer's findings. 2. Chapter 18.136, Amendments a. Section 18.136.010, Amendments DCC Title 18 may be amended as set forth in DCC 18.136. The procedures for text or legislative map changes shall be as set forth in DCC 22.12. A request by a property owner for a quasi-judicial map amendment shall be accomplished by filing an application on forms provided by the Planning Department and shall be subject to applicable procedures of DCC Title 22. FINDINGS: The Board adopts the Hearings Officer's findings. b. 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. FINDINGS: The Board adopts the Hearings Officer's findings. Page 24.of 25, EXH.IBIT "E" ORDINANCE NO. 2008-001 (1-23-08) B. That the change in classification for the subject property is consistent with the purpose and intent of the proposed zone classification. FINDINGS: The Board adopts the Hearings Officer's findings. 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 Board adopts the Hearings Officer's findings. 2. The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: The Board adopts the Hearings Officer's findings. I. Not Compatible with Character of Area. The Board adopts the Hearings Officer's findings. 2. Impacts on Wildlife. The Board adopts the Hearings Officer's findings. 3. Street System Impacts. The Board adopts the Hearings Officer's findings. 4. Impact on Wells. The Board adopts the Hearings Officer's findings. D. That there has been a change hi circumstances since the property was last zoned, or a mistake was made in the zoning of the property in question. FINDINGS: The Board adopts the Hearings Officer's findings. IV. DECISION: Based upon the foregoing Findings of Fact and Conclusions of Law, the Board hereby APPROVES the applicant's proposed plan amendment from Agriculture and Surface Mining to Rural Residential 1 Exception Area and proposed zone change from SM to RR -10 Page 25 of 25, EXHIBIT "E" ORDINANCE NO. 2008-001 (1-23-08) DECISION OF DESCHUTES COUNTY HEARINGS OFFICER .�p1'l127 FILE NUMBERS: PA -07-2 and ZC-07-2 A$g 11 APPLICANT: Harris Kimble ?' 63560 Johnson Market Road �� 2 o Bend, Oregon 97701 0 . 2e h, PROPERTY OWNERS: Harris C. and Nancy Kimble ° O) 4, 63560 JohnsonMarket Road ��g� Bend, Oregon 97701' (Tax Lots 819,.820, 821, 822; 823, 824; 825, 826 and 827) CLR, Inc. 703 NW. Stonepine Drive . Bend OR 97701 (Tax Lot 817) APPLICANT'S ENGINEER: Hickman, Williams & Associations, Inc. 698 N.W. York Drive Bend, Oregon 97701. APPLICANT'S ATTORNEY: Liz Faucher 644 N.W. Broadway Street Bend Oregon 97701 REQUEST: The applicant is requesting "approval of a plan amendment from SM and Agriculture to; Rural Residential: Exception. Area, a goal exception to Statewide Planning Goal 3, Agricultural Lands, and a zone change from SM to RR-10,for: ten tax lots totaling 158.95 acres and located between Johnson Market Road and Tumalo Creek north of Buck Drive westofBend. STAFF REVIEWER: Chris Bedsaul, Associate Planner HEARING DATE: July 24, 2007 RECORD CLOSED: September 14, 2007 L APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.52, Surface Mining (SM) Kimble PA -07-2, ZC-07-2 Page 1 of 41 EXHIBIT "F" ORDINANCE NO.; 2008-001(1-23-08) * Section 18.52.200, Termination of the Surface Mining Zoning. and Surrounding Surface Mining Combining Zone 2. Chapter 18.60, Rural Residential (RR -10) ' * Section 18.60.010, Purpose. 3. Chapter 18.136, Amendments • •* Section 18.136.020, 010, Amendments * Section 18.136.020, Rezoning Standards B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.040, Final Action in Land Use Actions 2. Chapter 22.24, Land Use Action Hearings * Section 22.24.030, Notice of Hearing or Administrative Action * Section 22.24. 140, Continuances' or Record Extensions 3. Chapter 22.28, Land Use Action Decisions * Section 22.28.030, Decision on Plan Amendments and Zone Changes Title 23, the Deschutes County Comprehensive Plan 1. Chapter 23:24; Rural' Development * Section 23.240.020, Goals 2. Chapter 23.60, Transportation : * Section 23.60.010, Transportation 2. Chapter 23.68, Public Facilities * Section 23.68.020, Policies 3. Chapter. 23.96, Open Space, Areas of Special Concern, and Environmental Quality * Section 23.96.030, Policies Kimble PA -07-2, ZC-07-2 Page 2 of 41 D. Oregon Administrative Rules (OAR) Chapter 660, Land Conservation and 'Development. Commission Division 4, Interpretation of.Goal 2 Exception Process 2. Division 5, Agricultural Lands 3. Division 6, Forest Lands 4.. Division 12, Transportation Planning - Division 15; Statewide Planning Goals and Guidelines Division 23, Procedures and Requirements For Complying With Goal 5 FINDINGS OF FACT: Location: The subject property consists ,of ten tax lots (Tax lots -817, 819, 820, 821, 822, 823, 824, 825, 826 and 827 on Deschutes County Assessor's Map 17-1.1-1). Tax Lot 817 is owned by CLR and contains 6.67 acres. The remaining tax :lots are :owned by the applicant and contain 152.28 acres. The property is located east of Johnson Market Road and the Klippel Acres Subdivision, west of the Tumalo Irrigation District (T!D) irrigation canal and Tumalo Creek, and north of Buck Drive west of Bend.. B. Zoning and Plan Designation: The subject property has a mixture of zoning districts and plan designations as follows: • Tax Lot 817 — ' 13.69 acres (including Tax Lot 809), designated RREA, split - zoned SM and RR -10; Tax ` Lot 819 — 32:45 acres designated Agriculture: and Rural Residential Exception Area (RREA), split zoned.Surface Mining (SM) and Rurai-Residential (RR -10); Tax Lot 820 — 9.03 acres designated Agriculture and RREA; .split -zoned SM and RR -10;. • Tax Lot 821--.8.78 acres designated Agriculture. and RREA, .split zoned SM and RR -10 :: Tax Lot 822.— 24.01 acres (mcluding Tax Lot 11401) designated RREA and split - zoned RR -10 and SM; Tax Lot 823 — 44.95 acres designated RREA, split -zoned RR -10 and SM; • Tax Lot 824 - 2138 acres designated RREA, split -zoned RR -10 and SM; • Tax Lot 825 - .68 acres designated RREA, zoned RR -10; • Tax Lot 826 —10.04 acres designated RREA;. split -zoned -SM and RR -10; and Tax Lot 827 --,96 acres designated RREA, zoned RR -10. The SM zoning is the result of much of the subject property's inclusion as SM Site 294 Kimble PA -07-2, ZC-07-2 Page 3 of 41 on the county's Goal 5 inventory of significant mineral and aggregate sites. The portions of the subject property Iodated within one-quarter mile from Johnson. Market. Road and Tumalo Creek are zoned Landscape Management (LM). And the entire subject property is zoned Wildlife Area Combining Zone (WA) because of its location within the Tumalo Deer Winter Range. The majority of the subject property, including all of the property zoned RR-10 and most of the property zoned SM, is designated: Rural Residential Exception Area (RREA). A small, portion of the northeast quadrant of the subject property that is zoned SM is designated Agriculture. Site Description: The subject property -is approximately 159 acres in size and very irregular in shape. A significant portion of the property has been disturbed due to previous surface mining : and reclamation . activities. The disturbed area consists of reclaimed extraction pits and berms created from overburden removed from the extraction *sites. The: undisturbedportions: of the property have varying topography and a mixture of native vegetation including scattered stands of pine and juniper trees, as well as native brush and grasses, and pasture grasses seeded ::as part, of the . surface mine reclamation. Part of the eastern border of the subject property is located in the canyon of `hunalo Creek :and includes steep slopes and rock outcrops. The record: indicates the. subject property has 5891acres of irrigation water rights administered by TID and 'broken downas follows: Tax Lot 817 -5.36 acres; • Tax Lot 819 -14.2 acres; • Tax Lot 820 -- .15 acres; • Tax Lot 821— 5.43 acres; • Tax Lot 822 —10.57 acres; • Tax Lot 823 —16.59 acres; and • Tax Loft824 - 6:61 acres. The record indicates some of these water rightscurrently are leased for in -stream use. There is a small irrigation ditch that traverses the subject property within an easement. Tax Lot 819 is developed with a single-family dwelling that was approved by the county as a replacement dwelling in June 2006 (CU -06-34), as well as a barn and outbuildings. The property has frontage on Johnson Market Road across Tax Lot 11401 on Assessor's Map. 17-11-14 which is adjacent to the most northerly northwest comer of the subject property and is owned by the applicant. The subject property also may have access via a private road easement from the eastern terminus of Suck Drive. D. Soils: According to the Natural Resource Conservation Service (NRCS) data in the record as well as a site-specific soils analysis submitted by the applicant the majority of • the subject property is comprised of the following three soil units: 1. Soil Unit 85A, Lundgren. This soil unit consists of deep; well -drained sandy loam soil over gravel and sands from glacial out -wash. The size of the gravel Kimble PA -07-2, ZC-07-2 Page 4 of 41 varies from a few inches to 5 -feet in diameter. This soil unit is classified as Class VI soil with or without irrigation. Soil Unit 62D, Henkle-Lava Flow. This soil unit consists of shallow, gravelly soil over basalt lava flows. This soil unit is classified as Class VII. Soil Unit 155C, Wanoga. This soil unit consists of well drained sandy loam over cinders that range iii size from 1" to 4" diameter. This soil unit is classified as Class VI soil with or without irrigation. The site-specific soils analysis shows the rest of the property is comprised of a variety of soil types classified as Class VI, VII and VIII with or without irrigation. E. Surrounding Zoning and Land Uses: The subject property is surrounded by approximately 20 tax lots described as follows: North: Most of the land north and northeast of the subject property is designated Agriculture and zoned SM, and includes Tax Lot 809 owned by CLR, Inc. and Tax Lot 1500 owned by The Joyce E. Coats Revocable Trust. Land further to the north and northeast is designated Agriculture and zoned EFU-TRB. Land further to the northwest is designated Forest and zoned F-2. .South: Abutting and surrounding land to the. south is designated RREA .and zoned RR -10 .and consists of the Klippel Acres Subdivision developed with: single-family dwellings on dots ranging in size from 2.5 to 10 acres. East: Abutting .land to the east consists of approximately 8 tax lots zoned designated RREA, zoned RR -10, and developed with rural residences and in one or two cases with very small-scale farming activity. In addition, the small portion of the subject property abutting Tumalo Creek adjoins land across the creekthat is within the Bend urban reserve area. West: Abutting and surrounding land to the west is designated RREA; zoned RR -10, and developed with rural residences within the Klippel Acres Subdivision. Further to the west across Johnson Market Road is land zoned RR -10 and F-2. F. Procedural History: The subject plan amendment and zone change applications were submitted on May 2, 2007 and were acceptedby the county as complete,: on May 17, 2007. Under Section 22.20.040(D) of the county's development procedures ordinance the 150 -day period for issuance of a final local land use decision. under ORS 215.477 does not apply because the applicant is requesting approval of a. plan amendment and the proposed zone change is dependent on approval of the plan amendment. A public hearing on the applications: was held on July 24, 2007. At. the hearing, the Hearings Officer received testimony and evidence, left the written evidentiary record open through August 28, 2007, and allowed the applicant through September 7, 2007 to submit final argument pursuant to ORS 197.763. On July 30,2007 the Hearings Officer conducted a site visit to Kimble PA -07-2, ZC-07-2 Page -5 of 41 the subject property and vicinity and issued a written site visit report on July 31, 2007. By a letter dated August 22, 2007 the applicant requested that the written evidentiary record be extended through September 7, 2007 to allow additional time for the applicant's • engineers to submit evidence. By an order dated August 24, 2007, the Hearings Officer extended the written record through September 7, 2007 and allowed the applicant through September 14, 2007 to submit final argument. "G. 'Proposal: The applicant has submitted the subject plan amendment and zone change applications in order to bring some uniformity to the property's plan designation and zoning, and to reflect the fact that surface mining and reclamation has been completed on ' SM Site 294. °Specifically, the applicant requests approval to: • . amend the comprehensive plan to remove SM Site 294 from the county's Goal 5 inventory of significant mineral and aggregate. resources; amend the county's zoning map to change the SM -zoned portions of the subject property to RR -10; • amend the county's zoning map to remove the Surface Mining Impact Area (SMIA) Combining Zone associated with Site 294; and • amend the comprehensive plan map to change the plan designation from Agriculture to RREA through an exception to .Goal 3 for those portions of the subject property currently designated Agriculture that have not been included in an exception area. R.. , .._Public '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 Assessor, Senior Transportation Planner, Building Division, and "Property Address " Coordinator; the Oregon Deparhnent of Geology and lltineral Industries (DOGAMI); and the Oregon Department of Water Resources, Watermaster- District 11. These comments are set forth verbatim at pages 4-5 of the staff report and/or are included in the record. The following agencies did not respond to the request for comnients: the Deschutes County Environmental Health Division and Road -Department; the Bend Fire Department; TID; and the Oregon Department:of Land Conservation and Development (DLCD). . L Public Notice and Comments: The Planning Division mailed individual written notice of the applicant's proposal and the public hearing to the owners of record of all property located within 750 feet of the subject property. In addition, notice of the 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 five letters and a petition signed by 25 people in response to these notices. In addition, six members of the public testified at the public hearing. Public comments are addressed in the findings below ' Kimble PA -07-2, ZC-07-2 Page 6 of 41 J Lot of Record: The record indicates the subject property consists of all or part of nine legal lots of record as a result of two lot -of -record determinations — LR -05-08 and LR -98- 42. III. CONCLUSIONS OF LAW: PROCEDURES Notice. A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance: 1. Chapter 22.24, Land Use Action Hearings a. Section 22.24.030, Notice of Hearing or Administrative Action A. Individual MailedNotice 1. Except as otherwise provided for herein, notice of a land use application shall be mailed at least 20 days prior to the hearing for those matters set for hearing * * *. Written notice ° shall be sent by mail to the following persons: b. Owners of record of property as shown on the most'. recent property tax assessment roll of property located: 2r . Within 250 feet of the property that is the subject of the notice where the subject property is < outside an urban growth boundary and not within a farm or forest zone, except where greater notice is required under DCC 22.24.030(A)(4). B. : Posted Notice Kimble PA -07-2, ZC-07-2 Page 7 of 41 1.. • Notice of a land use application for which prior notice procedures are chosen shall be posted on the subject ,property for at least 10 continuous days prior to any date set for :receipt of comments_. Such:- notice shall, where practicable, be visible from any adjacent public way. * * * C. Published Notice In addition to notice by mail and posting, notice of an initial hearing shall be published in a newspaper of general circulation in the County at least 20 days prior to the hearing. Continuance and Record Extension b. Section 22.24.140, Continuances or Record Extensions A. Grounds 1. Prior :to,the date; set for an initial hearing, an applicant shall receive a continuance upon any request. * * * Anypartyis entitled to a continuance of the initial evidentiary hearing or to have the record left open in suchaproceeding in the following instances: a. Where additional documents or evidence are submitted by any party; or Upon:a party's request made prior to the close of the.. hearing for time to present additional evidence or testimony. * * * 3. The grant of a continuance or record extension in any other circumstances shall be at the discretion of the Hearings Officer. FINDINGS:: The "record -indicates the county provided timely notice under all three of the required notice categoriesprescribed in Section 22.24.030. Nevertheless, opponents argue the county's notices did not provide them with adequate time prior to the hearing to analyze the applicant's request or respond to it, and thatthey were prejudiced thereby. At the public hearing, opponents requested that the public hearing be continued 60 to 90 days to afford them additional time to hire legal counsel and prepare rebuttal. The, Hearings Officer declined to continue the public hearing, but at the close of the hearing left the written evidentiary record open for 36 days, -and:subsequently issued an order extending the written record for an additional 7 days, for a total of 43 days following the close of the hearing. I find these record extensions provided opponents with ample°time to respond to the applicant's proposal, and the record indicates they submitted evidence .during the period the written record was open. Therefore, I find opponents' substantive rights were not prejudiced. • Kimble PA -07-2, ZC-07-2 Page 8 of 41 Process for Approval of Plan Amendment and Zone Change 2. Chapter 22.28, Land Use Action Decisions • • c. Section 22.28.030, Decision on PIan Amendments and Zone Changes . * * B. In considering all quasi-judicial zone changes and those quasi- judicial plan amendments on which the Hearings Officer bas authority to make a decision, the Board of County Commissioners shall, in the absence of an appeal or review initiated by the Board, adopt the Hearings Officer's decision. No argument or further testimony will be taken by the Board. Plan amendments and zone changes requiring an exception 'to the goals .concerning lands designated for forest or agricultural .use` shall be beard de novo before the Board of County -Commissioners Without. the necessity of filing an appeal, ;regardless' of the determination . of the Hearings, -:Officer: or Planning : Con mission.,.Stich hearing before the.. Boardshall otherwise be subject to the same procedures as an appeal to the Board' made under DCC Title 22. Notwithstanding DCC 22.28.03(C), when ,a plan amendment :subjectto a DCC 22.28.030(C) hearing •before ,the.Board 'of County Comnussioners has been consolidated for -:,heating before the Hearings Officer with a zone change or other permit application?not'requiring a hearing before the board -under DCC 22.28.030(C) any party wishing to obtain review.of the .Hearings Officer's decision on any of those other. applications shall•file 'an appeal. The plan amendment shall be heard byythe board consolidated with the appeal of those other applications. FINDINGS: The Hearings Officer finds the applicant's proposed plan amendment,zone change and goal exception will be considered by the Board of County Commissioners (board) at a public hearing. That is because a portion of the applicant's proposed plan amendment from Agriculture toRREA requires an exception to Goal 3. In addition, I find the remaining portions :of the applicant's proposed plan amendment and =zone change will be heard by the board because they :were consolidated for hearing before me and are likely to be appealed to the board.', .PLANAMENDMENT- FINDINGS: The applicant has requested approval of a plan amendment to remove SM Site 294 from the county's Goal 5 inventory of significant mineral and aggregate sites, and to re -designate to RREA the small portion of the subject property located m its northeast; quadrant. currently • Kimble PA -07-2, ZC-07-2 Page 9 of 41 designated Agriculture. As discussed above, the proposed plan amendment, coupled with the proposed exception to Goal 3 and zone change from SM to RR -10, would make the subject property's plan designation and zoning consistent and reflect the fact that SM Site 294 has been completely mined and reclaimed and no longer has a significant mineral and aggregate resource. At the outset, it is useful to review the rather convoluted history of the subject property's plan • designation.When the county adopted its original comprehensive plan maps in 1979 it included a large part of the subject property in an RREA to reflect the then -existing rural residential development in the area. However, most of the subject property also was zoned SM to reflect its surface mining . history. In the . late 1980's .the:. Land Conservation and Development Commission's (LCDC's) acknowledgement of -the county's comprehensive plan provisions addressing mineral and aggregate resources under Goal 5 was reversed and remanded by the Court of Appeals. in Coats v. LCDC, 67 Or App 504 (1984). Pursuant to a subsequent LCDC order the county undertook a lengthy process to: inventory mineral and aggregate resources in the county, to develop a plan to preserve and protect those resources, and to amend the county's comprehensive plan and zoning ordinanceto adopt -the inventory and measures to protect sites. These plans wereadopted through several 1990 ordinances .and included placement of Site 294 on the..inventory, .adoption of a site-specific ESEE (Economic, Social, Environmental and Energy) analysis for Site 294, and adoption -of Ordinance No. 90-029 zoning the subject property SM and: some 'of the surrounding land SMIA. However, the. ESEE analysis for Site 294 did not identify the .appropriate zoning designation following. surface: mining and reclamation.2 In 1992, as part of the county's state -mandated periodic review, the county adopted ordinances amending its original 1979 comprehensive plan map to conform it to the county's adopted and acknowledged zoning map. In particular, the 1992 ,mapamendments were intended to assure that the :areas designated and mapped RREA. . included all land zoned RR -10 on the zoning niap •because.it appeared that some of the RR -10 -zoned areas had been inadvertently omitted from the 1979 comprehensive . plan map.. Rural: Residential Exception Areas adopted in the 1992 Comprehensive plan map include significant portions . of the subject property. The 1992 modifications to the RREAson the 1979 plan map are. reflected in the maps labeled Exhibits "A" and. "B" to, Ordinance No. 92-069.. The Exhibit `B"" map, a scanned version of which is included inthis: record as Exhibit M to theapplicant's burden;:of proof,shows the portions of the subject property in the RREA adopted in 1992 .including thoseportions of the property already included in the RREA adopted in 1979 and those portions added to the RREA in 1992 to conform with the zoning map's RR -10 zoning. - ..As discussed in detail in the findings below, as a result of the adoption of the 1992 amended maps, a small portion of the subject property .—approximately 17.42 acres -- was not included in the RREA and remained designated Agriculture. Some of that acreage includes agricultural soils; some does not. The applicant has requested approval of an exception to Goal 3; Agricultural 1 This is a summary. A much more detailed history is set forth on pages 7-11, of the. applicant's burden of proof. 2In aletter dated August 19,2007, pen Mundie, Reclamationist for DOGAMI, stated DOOAMI's mining and reclamation permits identified the post -mining use of Site 294 for "pasture, residential homesites, agricultural, or best beneficial use of the area." Kimble - PA -07-2, ZC-07-2 Page 10 of 41 Lands, to re -designate this Agriculture -designated land to RREA so that the entire property has the same plan designation. The Hearings Officer finds the comprehensive plan does not include specific approval standards for plan amendments. Staff and the applicant have identified the following plan policies they believe are relevant -to the proposed plan amendment. COMPREHENSIVE PLAN GOALS AND POLICIES B. Title 23 of the Deschutes County Code, the Deschutes County Comprehensive Plan 1. • Chapter 23.24, Rural Development a. Section 23.24.020, Goals 1. To preserve and enhance the open spaces, rural character, scenic values and natural resources of the. County. FINDINGS: The Hearings Officer finds the rural development goals and policies in this chapter would be satisfied by the proposed plan amendment from Agriculture to RREA for a portion of • the subject property in -light of the county's 1992 adoption of a comprehensive plan including the majority of the subject property within the. designated RREAs.3 Opponents argue the better way to preserve the rural character of the area surrounding the subject property, is to leave the current. Agriculture designation intact, to re -designate the rest of the property to Agriculture, and to re- zone the entire property to LFU: The Hearings Officer disagrees. The record indicates only a small amount of land in the surrounding area is zoned EFU and the vast majority is zoned RR -10 and developed with residential lots and single-family dwellings. Therefore, I find the rural character of the area is predominantly one of rural residential development and not agriculture. 2 To guide the location and design of rural development so as to minimize the public costs' of facilities and:sehices, to avoid unnecessary expansion ot service boundaries, and to preserve and enhance the safety and viability of rural land uses.' FINDINGS: ` The Hearings Officer finds the applicant's proposed plan amendment from Agriculture to RREA fora .portion of the subject property is consistent with this comprehensive plan goal because it is adjacent to large areas of land, including' the majority of the subject property, that is designated RREA, and near RR I0 -zoned Iand developed with rural residences. Therefore, the proposed plan amendment from Agriculture to RREA will not require unnecessary expansion of service boundaries. 3. To provide for the possible long-term expansion of urban 3 A discussed in. the findings below, the applicant's proposed plan amendment to remove SM Site 294 f onithe.county's Goal 5 inventory of significant mineral and aggregate resource sites is subject to other plan policies. Kimble PA -07-2, ZC-07 2 - Page 11of41 areas while protectingthe distinction between urban (urbanizing) land and rural lands. FINDINGS: The Hearings Officer finds the applicant's proposed plan amendment is consistent with this comprehensive plan policy because the proposed re -designation from Agriculture to RREA will preserve the subject property as rural land. In addition, as discussed in the Findings of Fact above, the subject property includes a small area that adjoins Bend's urban reserve area and the entire property is located close to the Bend Urban Growth Boundary (UGB). For this reason, I find that development of the subject property at RR -10 density will facilitate redevelopment ofthe property at urban density if and when it is annexed into the UGB. Finally, I concur with staff that the relatively low density of RR -10 development on the subject property will provide a clear demarcation between rural and urban lands. As discussed in the findings below, the minimum lot size in the RR -10 zone is ten acres. 2. Chapter 23.60, Transportation a. 'Section 23.60.010, Transportation The purpose of DCC 23.60 is to develop:. a transportation system that meets the needs of Deschutes County residents while also considering regional and state needs at the same : time. This plan addresses a balanced transportation p system that includes automobile, bicycle, rail, transit, air, pedestrian and. pipelines. It reflects existing land use plans, policies and regulations that affect thetransportation system... FINDINGS: The subject property has access from Johnson Market Road, a designated rural, collector road maintained by the county, across Tax Lot 11401 owned by the applicant and located between the: most northerly northwest comer of the subject property and the road. The proposed plan amendment from Agriculture: to RREA and zone change from SM to RR -10 would .allow the subject property to be developed with up to 13 rural residences that would generate minimal additional traffic.a As discussed in the findings below, the Hearings Officer has found that for this reason the proposed plan amendment and zone change will not significantly affect a transportation facility and therefore will be consistent with the Transportation -Flaming Rule (TPR) in OAR Chapter 660 Division 12. For these reasons, I also find the proposed plan amendment will be consistentwith the comprehensive plan's transportation policies. 3. . Chapter 23.68, Public Facilities a. Section 23.68.020, Policies 4 Although the subject property is approximately 159 acres in size, the applicant estimates no more than 13 dwellings would be permitted in a subdivision developed on the property taking into account the amount of laird needed for roads and other infrastructure. Kimble PA -07-2, ZC-07-2 Page 12 of 41 Public facilities and services shall be provided at levels and in areas appropriate for such uses based upon the carrying capacity of the land, air and water, as well as the important distinction that must be made between urban and rural services. In this way public services may guide development while remaining in concert with the public's needs. 2. Future development shall depend on the availability of adequate local services in close proximity to the proposed site.. Higher densities may permit the construction of more adequate services than might.. otherwise be true. Cluster and planned development "shall be encouraged. New development shall not be located so as to overload existing or planned facilities, and developers or purchasers should: be made aware of potentially inadequate power facilities in rural areas. • . * * * 9. New development shall not be located so as to overload existing or planned facilities, and : developers or purchasers should be made aware of potentially inadequate power facilities in rural areas. FINDINGS: Most of the land abutting and surrounding the subject property is zoned RR:10: and developed with rural residences. The staff report states, and the Hearings Officer agrees, that the existing rural residential development indicates public facilities and services currently are. available in the area. The record indicates the subject property is Iocated within the boundaries; of the Deschutes Rural Fire Protection District #2 (RFPD) and would receive fire protection from the Bend. Fire Department under a contract with the RFPD. In addition, the property would receive police protection °from the Deschutes County Sheriff, and can be served by existing utility providers The existing rural development also: indicates .dwellings on the subject property can be served by on-site individual or community wells and individual on-site septic :systems. Finally, as discussed above, the subject property has frontage on and access from Johnson Market Road. For these reasons, i find the proposed plan amendment.: is consistent with the comprehensive plan's public facilities policies. 4. Chapter 23.96, Open Space, Areas of Special Concern, and. Environmental Quality a. Section 23.96.030, Policies 10. As part of subdivision or other development review, the Kimble PA -07-2, ZC-07-2 Page 13 of 41 County shall consider the impact of the proposal on the air, water, scenic and natural resources of the County. Specific criteria for such review should be developed. Compatibility of the development with those resources shall be required as deemed appropriate at the time given the importance of those resources to the County while considering the public need for the proposed development. FINDINGS: The. Hearings. Officer finds This plan. policy is not applicable because the applicant's proposal does not involve a subdivision or other .development review. I find the compatibility analysis identified in this policy :is implemented through the county's zoning ordinance provisions, such as the LM Zone that applies along Johnson Market Road and Tumato Creek and the WA Zone applicable to the entire subject property. The standards in these zones 'will• apply to any development on the .subject property .following re -designation to RREA and rezoning to RR.10. For the foregoing reasons, the Hearings Officer finds the applicant's proposed plan amendment from Agriculture to RREA is consistent with all applicable comprehensive plan goals and policies concerning rural development, transportation, public facilities and opens space identified by the applicant and staff. STATEWIDE GOALS AND ADMINISTRATIVE RULES Agriculture to RREA Agricultural Lands FINDINGS: The applicant argues his proposed plan amendment to re -designate a portion of the subject property from Agriculture to RREA is justified for the followingreasons under the statewide goals and administrative rules: :(1) some of the Agriculture -designated land doesnot qualify as "agricultural =land" based on soil classification; (2) the portion of the Agriculture- designated land that does qualify "agricultural land" based on soil classification nevertheless is unsuitable for farm use because the soils are unproductive, and the land it is too small size and isolated' to put it to. productive farm use in conjunction with nearby EFU-zoned land; and (3) the unsuitable Agriculture-designatedland qualifies for an exception to Goal 3. These arguments are discussed in the findings below. C. .Oregon Administrative Rules (OAR) Chapter 660, Land Conservation and Development Commission 1. Division 15, State-wide Planning Goals and Guidelines a. OAR 660-015-0000(3), Agricultural Lands GOAL 3 Kimble PA -07-2, ZC-07-2 Page 14 of 41 To preserve and maintain agricultural lands. Agricultural lands shall be preserved andmaintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state's agricultural land use policy expressed in ORS 215.243 and 215.700. :DEFINITIONS Agricultural Land - * *. . .*. In eastern Oregon is land of predominantly Class I. 11,111 IV. V and VI soils as identified in the Soil :Capability Classification • Systemof the United States Soil Conservation Service, and other lands .which are suitable for farm use taking into consideration soil fertility, suitability for grazing, climatic conditions, existing and future availability 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 withinacknowledged urban growth boundaries or land within acknowledged exceptions to Goals 3 or 4. (Emphasis added.)'. . Division 33, Agricultural Land a. OAR 660-0334030, Agricultural Land (1) All . land defined as ' "'agricultural land in . OAR 660-033- 0020(1) shall be inventoried as agricultural land. JINDINGS: The threshold question is whether the Agriculture -designated portion of the subject property qualifies as "agricultural land" under Goal 3 and OAR 660-033-0020(1)._ According to Exhibits "A" and "B" to Ordinance No. 92-060, the 17.52 acres of Agriculture -designated land on the subject property was comprised of the following acreage and soil classifications: :Lot Size of Area % of Soil Type VII: VIII Tax Lot 819 1.50 acres None Tax Lot 820 7.40 acres None Tax Lot 821 8.50 acres 100 Tax Lot 825 . .0.0 acres Tax Lot 826 • .- • .02 acres . 100 :. Kimble PA -07-2, ZC-07-2 Page 15 of41 In other words, in 1992 the county determined 8.9 acres of the subject property (in Tax Lots 819 and 820) included Class VI or better soils and therefore constituted "agricultural lands," and 8.52 acres of the subject: property. (in Tax Lots 821 and 82.6) included Class VII and VIII soils and therefore did not constitute "agricultural lands." (2) When a jurisdiction determines the predominant soil capability classification of a lot or parcel it need only look to the land within the lot or parcel being inventoried. However, whether land is "suitable for farm use" requires an inquiry into factors beyond the mere identification of scientific soil Classifications. The factors: are: listed, ,in the definition of agricultural land setforth at.OAR 660-033-0020(1)(a)(B). This 'inquiry requires the, consideration of conditions existing Outside; the lot or parcel being inventoried. Even if a Lot or parcel is not ,predominantly Class I--IV, soils or suitable for firm ate, Goal 3• nonetheless- defines: as agricultural "lands. in 'other classes which are necessary to. ermit farmyractices to be undertaken. on adjacent or nearby. lands." A determination that a lot or parcel 'is, not :agricultural :land requires findings supported by substantial evidence that addresses each of the factors :set forth in-OAR 660-033=0020(1). (Emphasis added.) FINDINGS: The applicant argues the Agriculture-designated portions of the subject property with 'Class Miami:. VIII, soils are not "suitable for farm use"- because they are not necessary to Petra farm: practices on :adjacent or nearby lands.. Specifically, : the: applicant argues the small portion of Tax Lot 826 designated "Agriculture" is located : on. steep land within the Tumalo Creek Canyon, and the portion of Tax Lot 821 designated "Agriculture" is not "suitable for faun use" because: • it is too small and isolated to be put to farm use in conjunotion:adjacent and nearby lands; it is comprisedof Class' •VII and VIII soils that are not productive for either the production: 'of farin crops or -livestock; . although The subject. property has irrigation water rights, the record indicates these rights have been leased' for in- stream use;; • , any agricultural use of the property would require significant energy inputs and expense that would not be .cost-effective and 'in any event would have to be Limited due to the proximity=' 'to existing rural residential development (such as use of fertilizers and pesticides; and • the existing land use pattern is rural residential and not agricultural. Opponents argue the entire subject property should be considered "agricultural land regardless of soil classification because historically it was part of the Klippel Ranch and was engaged in Kimble - PA PA -07-2, ZC-07-2 Page 16 of 41 farm use, and because the leased water rights could be returned to the subject property to make it more productive. The Hearings Officer disagrees. As discussed above, the majority of the subject property.aheady is designated RREA, indicating the county determined any historical farm use on the,subject property. did not make it "agricultural." in addition, the applicant argues that even if the in -stream water rights were transferred back onto the subject property they would not make this land more productive since these Class VII and VIII soils are not rated with irrigation. In addition, opponents argue the capability of the soils on the subject property could be improved if the .applicant wererequired to replace the topsoil removed during mining operations and used to create buffering berms on the perimeter of the extraction areas. I find this argument has no support in this record. The applicant's site-specific soils analysis shows the soils on the subject property have been significantly altered by mining and reclamation activity, and .the topsoil is • comprised offthe. same soil types identified elsewhere on the subject property that as Class. VI, VII and VIII soils have very limited agricultural capability. (3) Goal 3 attaches no significance to the ownership of a lot or • parcel when determining whether it is agricultural land. Nearby or adjacent land, regardless of ownership, shall be examined to the extent that a lot or parcel is either "suitable ..for farm use" or "necessary to permit farm practices to be undertaken on adjacent or nearby lands" outside the lot or parcel. FINDINGS: Tax Lot 821 adjoins land designated Agriculture and zoned RR -10 on the east that is' not own by:the applicant. Tax Lot 821 .adjoins land designated Agriculture and zoned SM on the north and:w.est (Tax Lots 819 and 820) owned. by the applicant and for portions of which the applicant has requested approval of an exception to Goal 3. The record indicates; and the Hearings Officer's site visit observations confirmed, that one or two parcels east of the subject property could be considered "hobby farms" with small areas of cultivated pasture. However; the owners of :these parcels have not offered to utilize the portions of Tax Lots 819, 820 and 821 in conjunction with their "farm use." I find the Agriculture -designated portions of the subject property and the hobby farms in the area are both too small to be put to productive farm use alone or in conjunction with one. another. Therefore, for these reasons, and.for the reasons set forth in the goal exception findings below, 1 find the portions of Tax Lots 819, 820 and 821 designated Agriculture are not necessary to permit farm practices on the rest of the subject property or other surrounding property owned by others (4) When inventoried land satisfies the definition requirements of both agricultural landand forest land, an exception is not required to show why one resource :designation. is chosen over another. The plan need only document the factors that were used to select an agricultural, forest, agricultural/forest, or other appropriate designation. FINDINGS: The Hearings Officer finds this criterion is not applicable because the . soil capability classifications for the Agriculture -designated portions of Tax Lots 821 and 826 do not satisfy the definition of agricultural land (Class VII and VIII), and I have found the Class VI Kimble PA -07-2, ZC-07-2 Page 17 of 41 soils on the remainder of Tax Lot 821 and Tax Lots 819 and 820 do not qualify. as "forest land." (5) Notwithstanding the definition of - "farm ° use" in ORS 215.203(2)(a), profitability or gross farm income shall not be considered in determining whether land is agricultural land or whether Goal 3, "Agricultural Land," is applicable. FINDINGS: The Hearings Officer finds that because the subject property is not engaged in farm use, has not been engaged in farm use since it was zoned SM, and is predominantly designated AREA, there is no basis from which todetermine whether or not it could be profitably put to fami use. _ However, .for the reasons discussed in the findings above and below,- I find the Agriculture -designated portions of the subject property simply cannot be put to productive farm use alone or in conjunction with other lands .designated and zoned for agriculture, and therefore profitability and gross income considerations are not relevant. (6) More detailed data on soil capability than is contained in the .U.S. Natural Resources Conservation Service (NRCS) soil .:mapsand soil surveys may be used to define agricultural land. • However, the more detailed soils data shall be related to the U.S. Natural Resources Conservation Service (NRCS) land capability classification system. FINDINGS: In support of its applications, the applicant submitted a report entitled "Soil Survey of. Harris Kimble Property" dated December 2006and prepared by Steve Wert, a certified soil scientist with Wert and Associates, Inc. The study indicates the entire subject property is comprised of three major soils types, described as follow: L Soil Unit 85A, Lundgren. This soil unit consists of deep, well -drained sandy loam soil over gravel and sands from glacial out -wash. The size of the gravelvaries from a few inches to 5 -feet in diameter. This .soil .unit has a capability rating of Class VL 2.' Soil Unit 62D, Henkle. Lava Flow. This soil unit consists of shallow, gravelly soil over basalt. lava flows and has a soil capability classification of Class VII. • 3. Soil Unit 155C, Wanoga. This soil unit consists of well drained sandy loam over cinders that range in size from 1" to 4" diameter. This soil unit has a capability rating of Class VI. Mr. Wert also identified six other soils on the subject property: (I) Lundgren -sand phase; (2) surface mined; (3) steep side slopes; (4) unnamed soil; (5) pond bottom; and (6) road. According to the soils map attached to,Mr. .Wert's soils analysis, he found that 19 percent of the subject property consists of Class. VII or VIII soils. Based on his detailed soils analysis for the portion of the subject property designated Agriculture Mr. Wert found that with one exception all of this area is comprised of Class VII soils. The applicant argues, and the Hearings Officer agrees, that based on Mr: Wert's site-specific soils analysis the majority of soils • on the Agrieniture- designated portions of the property do not constitute "agricultural land." ` Kimble PA -07-2, ZC-07-2 Page 18 of 41 Exception to Goad 3 3. Division 4, Interpretation of Goal 2 Exception Process OAR 660-004-0010, Application of the Goal 2 Exception Process to Certain Goals (1) * * * 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;" * * *. FINDINGS: The applicant is seeking approval of an exception to Goal3 for the portions of Tax Lots 819, 820 and 821 'designated Agriculture that do constitute "agricultural land." As shown in the table set forth on page 14 above, approximately 8.9 acres on these three tax lots.. are comprised of soils classified as Class VI or better: b.. • OAR 660-004-0018, Planning and Zoning •for Exception Areas (1) Purpose. This rule explains the requirements for adoption of plan and zone designations for exceptions. Exceptions to one goal or a portion of one goal do not relieve a jurisdiction from remaining goal requirements and do not authorize uses, densities, "public" facilities and services, or activities other than those recognized or justified by the applicable exception. Physically developed or . irrevocably committed;, exceptions under OAR 660004-0025 and 660-004-0028are: intended to recognize and allow continuation: of ._existing _ types. of development in the exception area. Adoption of plan and zoning provisions that would allow changes inexisting types .of uses; densities, or services requires the. application .of the standards outline in this rule. FINDINGS: .The applicant is 'requesting' an exception .to Goal 3 forr that part of the subject property that was:not included in the exception areas mapped in 1979 and .1992 on the basis that this area is irrevocably committed to rural residential use. (2) For "physically developed" and "irrevocably committed" exceptions to the goals; plan and zone designations shall authorize a single numeric minimum lotsizeand shall limit uses, density, and public facilifies.and services to those: Kimble PA -07-2, ZC-07-2 Page 19 of 41 1 (a) That are the same as the existing land uses on the exception site; FINDINGS: The applicant has requested approval of a zone change for the subject property to RR -10. This zone prescribes a 10 -acre minimum lot size and maximum density that does not exceed the maximum density established in the WA Zone for partitions and subdivisions. The uses permitted in the RR -10 Zone are the same as the existing uses on the surrounding RREA zoned RR -10 to which the applicant:proposes to add the subject property — i.e., rural residences — and therefore the applicant's proposal is consistent with this criterion. (b) That meet the following requirements: (A) The rural uses, density, and public facilities and services will maintain the land as "Rural Land" as defined by the goals and are consistent with all other applicable Goal requirements; and FINDINGS: As discussed in the zone change findings below, the purpose -of the RR 1O2Zone is to provide for rural uses and: to preserve the rural character of the area. In addition; as discussed in findings elsewhere in this decision, the WA Zone which applies to the subject property places additional restrictions on density of development in the RR -10 Zone to assure preservation of wildlife habitat. As a result, the rural uses, density and public facilities and services on the subject property following approvalof the proposed goal exception and zone change would allow only "rural uses" consistent with this criterion. (B). The rural uses, density, and public facilities and services will not commit adjacent or nearby resource land to nonresource use as defined in OAR 660-004-0028; and FINDINGS: As discussed in -the findings above, most parcels abutting and surrounding the .subject property are ; zoned RR-10.:and developed• with rural residences, and therefore they are nonresourceland: The only nearby land that could be considered "resource land" is Tax Lot 700 on. Assessor's Map 14-1142 located. north .of the subject property, zoned SM and engaged in surface mining activities. However; . the applicant's burden of proof states, and the Hearings Officer agrees; that the.; proposed goal exception that would add portions of.the subject property to the existing RREA would not commit Tax Lot. 700 to nonresource use because the SMIA Zone associated with this surface :mining site applies and will protect the surface mining from eonfieting, uses 'through minimum setbacks betweenthe surface mine and dwellings- or other noise- or dust -sensitive uses permitted in ;the RR -10 Zone. The record indicates Tax Lot 700 is located far enough from the subject property that the SMIA Zone will not preclude the siting of .ural residences on the subject property. The record indicates the closest EFU-zoned land is .located on the portion of Tax -Lot 817 located in Section 12, north of the subject property. However; there are two intervening RR -10 zoned tax lots - Tax Lots 809 and 1500 - that would provide a buffer between rural:residences on the subject .property and farm use on Tax Lot 817. Finally, the record indicates the closest forest -gone land touches the northwest corner of the Kimble PA -07-2, ZC-07-2 Page 20 of 41 portion of Tax Lot 817 in Section 12. to the. north. The applicant argues, and I agree, that approval of the proposed goal exception will not commit this land to nonresource uses because most of the F-2 zoned land is located on the west side of Johnson Market Road, and there are RR -10 zoned. parcels developed with residenceslocated between the subject property and the road. For these reasons; I find the proposed, goal exception is consistent with this criterion. (C) The rural uses, density, and public facilitiesand services are compatible with adjacent or nearby resource uses; FINDINGS: The Hearings Officer finds the proposed goal exception is consistent with this criterion because the uses, densities, and public facilities and services permitted in the RR -I0 Zone :will .be compatible withthe nearby resource lands and uses because the RR -10 Zone strictly limits uses toxural uses at low density without urban services: (c) For which the uses, density, and public facilities and services are consistent with OAR ` . 660=022-0030, "Planning and Zoning of Unincorporated Communities," •if applicable; or FINDINGS: The subject property does not adjoin an unincorporated community, and the applicant is not requesting a goal exception to include the subject property in an unincorporated community: Therefore, the Hearings Officer agrees with the applicant that this criterion is not applicable.. . • (d) That are .industrial development uses, and accessory uses subordinate to the industrial development, in buildings of any size and type, provided the exceptions area was planned and zoned for industrialuse 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 proposed goal exception isnot requested for, and would not allow, industrial development or uses. • (3) Uses, density, and publicfacilities and services not meeting section (2) of this rule may be approved only under provisions for a reasons exception as outlined in Section (4) of this rule and OAR 660-004-0020 through 660-004-0022::: FINDINGS: The Hearings O$Icer finds this criterion is not applicable because I have found the proposed goal exception satisfies the requirements of Section (2) of this rule. • (4) "Reasons" Exceptions:' Kimble PA -07-2, ZC-07-2 Page 21 of 41 FINDINGS: The Hearings Officer finds the provisions of this subsection are not applicable because the applicant is not seeking approval of a `reasons" exception to Goal 3. For the foregoingreasons, the Hearings Officer funds the applicant has demonstrated the proposed -exception to Goal 3 for the portions of the subject property designated Agriculture that were not included in the exception areas mapped in 1979 and 1992 satisfies all requirements for an "irrevocably committed" exception. b. OAR 660-004-0015, Inclusion as Part of the Plan FINDINGS: This rule requires that if the county approves the .exception.to-Goal3 proposed by the applicant, it must adopt "findings of fact acid a statement of reasons which:demonstrate, that the standards for an exception have been met." The Hearings Officer finds the findings immediately above and below demonstrate compliance with the standards in Goal 2, Part II(c), OAR 660=0040020(2) and OAR 660-004-0022: OAR 660-004-0028, Exception Requirements for Land Irrevocably Committed to Other Uses • (1) A local government may adopt an exception to a goat when- the • landsubject to the exception is irrevocably.:cominitted to uses not allowed by the applicable goal because existing adjacent uses and other relevant factors make uses allowed by the applicable goal impracticable: FINDINGS: The applicant has requested approval of an "irrevocably committed" exception for the portions of the subject property designated Agriculture but not included in the RREAs mapped in 1979 and 1992 because of' existing plan designation, zoning and uses in the surrounding rural residential land: Compliance with the factors in this rule are addressed in the findings below. (a) A "committed exception" is anexception taken in accordance with ORS 197.732(1)(b), Goal 2, Part II(b), and with the provisions of this rale: FINDINGS: The applicant correctly notes . that the language of the statute and the Goal 2 administrative rule are virtually identical because both allow an exception "because existing adjacent uses and other relevant factors make uses allowed by the applicable goal impracticable." (b) For the purposes of this rule, an "exception area' is that area of land for which a "committed exception" is taken; FINDINGS: The applicant is requesting an exception to Goal 3 to add to the existing RREA that Kimble PA -07-2, ZC-07-2 Page 22 of 41 nearly surrounds the subject property those small areas on the property designated Agriculture and not previously included in the RREAs mapped in 1979 and 1992. (c) An "applicable goal," as used in this section, is a statewide planning goal or goal requirement that would apply to the exception area if an exception were not taken. FINDINGS: The applicable goal in this case is Goal 3 because it would apply to the Agriculture-designatedportions of the subject property if the proposed goal exception were not approved (2) Whether land is irrevocably committed depends on the relationship between the exception area and the lands adjacent to it. Thefindings for a committed exception therefore must address the following: FINDINGS: As discussed in the findings above, there are two areas on the subject property designated Agriculture for which the applicant is requesting an exception to Goal 3 -- .02 acres on Tax Lot 826 and 8.5 acres on Tax Lots 819, 82.0 and 821. The applicant's burden of proof notes that both of these areasare part of legal lots of record that already are included in the existing RREA. The applicant is requesting the goal exception to include these small areas within the larger RREA to avoid confusion in the future and to reflect the character and development in the surrounding area. (a) The characteristics of the exception area; (b) The characteristics of the adjacent lands; (c) The relationship between the exceptionarea and the lands adjacent to it; and FINDINGS: The small portion of Tax Lot 826 subject to the proposed goal exception is a strip of land located between Tumalo Creek and the eastern boundary of the existing RREA, essential consisting of rinnock within Ti'malo Creek Canyon. The applicant's' burden of proof notes this land may in fact have been included in the RREA but may have inadvertently not been included in the RREA map. :The portions of Tax Lots 819, 820 and 821 subject to the proposed goal exception consist of part of the reclaimed SM Site 294 as well as portions of the existing RREA. As discussed above, Tax .Lot 819: already, is developed with a single-family dwelling. ' And as discussed in detail in the findings above, these areas include poor quality Class VI soils or Class VII and VIII (non- agricultural), soils. In addition, the record indicates Klippel Road is located adjacent to or on Tax Lots 819, 820 and 821. The lands adjacent to the portions of these tax lots subject to the proposed goal exception are designated RREA, zoned RR -10 or SM, are smaller than the 10 -acre Kimble PA -07-2, ZC-07-2 Page 23 of 41 minimum lot size in the RR -10 Zone and have been, or are eligible to be, developed with rural residences. (d) The other relevant factors set forth in OAR 660-004- 0028(6). FINDINGS: The factors of OAR 660-004-0028(6) are addressed in the findings below. (3) Whether ruses or activities allowed by an applicable goal are impracticable as that term is used in ORS 197.732(1)(b), m Goal 2, Part II(b), and in this rule shall be determined .through consideration of factors set forth in this rule. Compliance with this. rule shall constitute compliance with the requirements of Goal 2, Part IL Itis the purpose of this rule to permit irrevocably committed exceptions where justified so as to provide flexibility in the application of broad resource protection goals. It shall not be required that local governments . demonstrate that every use' allowed by the applicable goal is "impossible." For exceptzons to Goals.3, and 4, local governments ire required to demonstrate that only the following uses or activities are impracticable: (a) ' . Farm use as defined in ORS 215.203:_ FINDINGS: ORS 215.203(2) defines "farm use" as follows: As used in this section, "farm use" means the current employment of land for the primary purpose of obtaining a profit in money by .raising, harvesting and selling crops or the feeding, breeding, management and sale of, or the produce of livestock, poultry, fur -bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof. "Farm use" includes the preparation, storage and disposal by marketing or otherwise of the products or by-products raised on such land for human or animal use. "Farm use" also includes the current employment of the land forthe prhnary purpose of obtaining a profit in money by stabling or training equines including but not limited.: to providing riding lessons, training clinics and schooling shows. "Farm use" also includes the propagation, cultivation, maintenance and harvesting of aquatic, bird and animal species that are under the jurisdiction of the State Fist and Wildlife Commission, to the extent allowed by the rules adopted by the commission.. "Farm use" includes the on-site construction and maintenance of equipment and facilities used for the activities described in this subsection. "Earn use" does not include the use of land subject to the .provisions of ORS chapter 321, except land used exclusively for growing cultured Christmas trees as defined m. subsection (3) of this section or land described` in ORS 321.267(3) or 321.824(3). Kimble PA -07-2, ZC-07-2 Page 24 of 41 The site-specific soils analysis prepared by Steve Wert and discussed in detail in the findings above shows that soils on the portion of Tax Lot 826 are classified Class VII nonagricultural soil, and therefore the Hearings Officer finds they are not suitable for "farm use." The soils analysis shows that although the portions of Tax Lots 819, 820 and 821 subject to the proposed goal exception include both Class VI and Class VII soils, the Class VI soils are of poor quality and have been significantly altered by surface mining and reclamation activities on SM Site 294. In addition, I have found these areas are simply too small to be put to productive farm use either alone or in conjunction with nearby Tann uses on farm land. The applicant also argues, and I agree, that . the fact these areasare surrounded by RREAs and roads makes fanning them impracticable. • (b) Propagation or harvesting of a forest product as specified in OAR 660-033-0120; and (c) Forest operations or forest practices as specified in OAR 660-006-0025(2)(a). FINDINGS: As discussed in the findings below concerning compliance with Goal 4, the Hearings Officer has found the subject .property generally, and the portions of the property subject' :to the proposed goal exception in particular, are not suited to the propagation and harvesting of forest products.. These areas have not been mapped, designated or zoned for forest use, they do not have forest soils, and the existing poor quality Class VI soils have been significantly altered by previous mining and reclamation activities on SM Site 294. (6) Findings for a committed exception shalt address the following factors: (a) Existing adjacent uses; FINDINGS: Existing adjacent uses have been identified' and discussed in the findingsabove. (b) Existing public facilities and services (water and sewer lines, etc.): FINDINGS: The applicant is not relying on existing public facilities and services such as water and sewer lines to support his proposed `irrevocably committed" exception to Goal 3. The record indicates the existing rural residential development on surrounding land is served by rural :services including .on-site sewage disposal systems and on-site private or community wells. As discussed in findings elsewhere in this decision the surrounding land also is served by electrical :and telephone service. (c) Parcel size and ownership patterns of the exception area and adjacent lands: (A) Consideration of parcel size and ownership patterns under subsection (6)(c) of this rule shall. Kimble PA -07-2, ZC-07-2 Page 25 of 41 include an analysis of how the existing development pattern came about and whether findings against the Goals were made at the time or partitioning or subdivision. Past land decisions made without application of the Goals do not in themselves demonstrate irrevocable commitment of the exception area. Only if development (e.g., physical improvements such :as roads and underground . facilities) on the resulting parcels or other factors make unsuitable their resource use or the resource use of nearby lands can the parcels be considered to be irrevocably committed. Resource and nonresource parcels created pursuant to the ' applicable goals shall not be used to justify a committed exception. For example, the presence of several parcels created for nonfarm dwellings or an intensive . commercial agricultural :operation under the provisions of an exclusive. :farm use zone cannot be used to -justify a. Committed exception for land adjoining . those ,parcels;. FINDINGS: As discussed in the findings above, the subject property is approximately 159 acres in size and is comprised of all orpartoften tax lots varying. in. size from .68 to 44.95 acres. The record. indicates these tax lots comprise Iota of record that were lawfully created before the county's land use regulations were adopted or acknowledged, and therefore goal findings were not required at that time. The record indicates all of these lots were created by deeds. Therefore, none of these lots was created through a land use action such as a partition or subdivision, or througk application of the goals:: Tfie- record .indicates that in 1979 and 1992 portions of the subject property were included in an adopted RREA for which goal findings were made, based upon the existing ;pattern of development with rural lots predominantly smaller than ten acres and developed with . rural residences. As a result of this history, the applicant argues, and the Hearings Officer concurs, that these prior land divisions, RREA designations and RR-10 zoning justify the proposed. goal exceptionbecause they demonstrate Irrevocable commitment to nonresource uses. Kimble PA -07-2, ZC-07-2 Page 26 of 41 Existing parcel sizes and contiguous ownerships shall be considered together in relation to the land's actual size. For example, several contiguous undeveloped parcels (including parcels separated only by a road or highway) under one ownership shall be considered as one farm or forest operation. The mere fact that small parcels exist does not in itself constitute irrevocable commitment. Small parcels in separate ownerships are more likely to be irrevocably committed if the parcels are developed, clustered in a large group or clustered around a road designedto serve these parcels. Small parcels in separate ownerships are not likely to be irrevocably committed if they stand alone amongst larger farm or forest operations, or are buffered from such operations. FINDINGS: As discussed in the findings above, the portions of the subject property proposed for a goalexception have been considered as a potential single farm unit. However, the applicant notes that because Tax Lot 819 is owned by CLR, Inc. it would be reasonable not to'consider it part of a single potential farm 'unit .because it is not in the same ownership. Nevertheless, the applicant argues, and the Hearings Officer agrees, that even considering the Agriculture - designated portions of all four tax lots as a single :unit for purposes of this goal exception criterion, I find these lands are simply too small to be put to productive farm usealone or in conjunction with farm operationsin the surrounding area due primarily to its poor quality soil, significant alterations to the soil as the result of previous mining and reclamation activities, and the proximity of significant rural residential development and roads serving that development. Moreover,1 agree with the applicant that the fact this potential farm "unit" is not contiguous to any other Agriculture -designated land ` makes it even more appropriate for the proposed exception. (d) Neighborhood and regional characteristics; FINDINGS: As discussed in the findings above, the Hearings Officer has found :the :character of the neighborhood is rural residential: in light of the large surrounding RREA and area zoned RR - 10 and developed with rural.residenees: The -larger "region".— from Tumalo Creek and the Bend urban area reserve on the east to the western boundaryof the Saddleback Subdivision on the west side of Johnson Market Road — contains little resource land other than surface • mining sites. As discussed above, the nearest farm and forest lands are separated from the subject property by intervvening RR-10zoned land and roads: (e) - ` Natural and man-made features or other impediments separating the . exception area from adjacent . resource land. Such features or impediments include but are not limited toroads, watercourses, utility .lines, :easements or. rights-of-way that effectively impede practicable resource use of all or: part of the exception :area; FINDINGS: The record indicates there are no Goal 3 resource lands adjacent to the subject property. The applicant argues, and the Hearings Officer agrees, that the lack of adjacent resource lands makes appropriate for approval of a goal exception the portionsofthe subject property proposed for such an exception. Kimble PA -07-2, ZC-07-2 Page 27of41 (t) Physical development according to OAR 660-004-0025; and FINDINGS: OAR 660-004-0025 authorizes "physically developed" goal exceptions for circumstances in which land has been physically developed with structures, roads, sewer and water facilities and natty facilities. The applicant has not requested a "physically developed" goal exception, but correctly notes that physical development is a factor to be considered for an "irrevocably committed" goal exception. The record indicates the only development on the subject property consists of an existing single-family dwelling on Tax Lot 819, two private roads — Klippel Road and Palla Lane -- and a surface mine on a significant portion of the subject property. The applicant argues, and the Hearings Officer agrees, thatwhile these developments standing alone do not . justifythe proposed goal exception, they providesupport for the applicant's proposal in conjunction with the other factors discussed in°these findings that indicate the subject property is irrevocably committed.to nonresource `- i.e., rural residential- use. (g) Other.relevant factors. FINDINGS The applicantidentifies the following other factors relevant to his proposed "irrevocably committed" goal exception: the subjectproperty contains many areas that would be considered suitable fornonfarm dwellings, so even if the property were re -zoned to EFU it would not be developed with farm uses; • portions of Tax Lots 8.19, 820, 821 and 826 consist of land already included in an RREA; the mapping history. ofthe: subject property strongly suggests the. county erred' 3n :not including :in the; RREA identified in 1979 the Agriculture -designated portions: of the property subject ,.to this proposed goal exception, and that all portions of Section 13 located west of Tuimalo Creek should have been• included in the RREA area and zoned RR -10; and • even if the county did not err in failing to include the Agriculture -designated portions. of Tax Lots 819, 820, 821. and 826 in the RREA, the small size of their total acreage in relation to.the size of the subject propertyand the existing RREA makes these portions of the property appropriate for re -designation to RREA. For the foregoing reasons, the Hearings Officer finds the applicant has demonstrated his proposed: exception. to Goal. 3 for the portions of Tax Lots 819, 820, 821 and 826 designated Agriculture satisfy all approval criteria for an "irrevocably committed" exception. Forest Lands 4. Division 6, Forest Lands a. OAR 660-15-0000(4), Forest Lands Kimble PA -07-2, ZC-07-2 Page 28 of 41 FINDINGS: GoaI4 provides as follows: To conserve forest lands by maintaining the forest land base and to protect the state's forest economy by making possible economically efficient forest practices that assure the continuous growing and harvesting of forest tree species.. as the • leading use on forest land consistent with sound management of soil, air, water, and fish and wildlife resources and to provide for recreational opportunities and agriculture. Forest lands are those lands acknowledged as forest lands as of the date of adoption of this goal amendment. Where a plan is not acknowledged or a plan amendment involving forest lands is proposed, forest land shall include Iands which are suitable for commercial forest uses including adjacent or nearby lands which are necessary to permit forest. operations .or practices and other forested lands that maintain soil, air, water and fish and wildlife resources. b. OAR 660-06-001, Purpose • (1) The purpose of the Forest . Lands Goal is to conserve forest lands and to carry out the legislative policy of ORS 215.700. (2) .: .To accomplish the purpose of conserving forest lands, the governing body shall: (a) Designate forest lands on the comprehensive plan map as forest lands consistent witb Goal 4 and OAR Chapter 660, Division 6; Zone forest landsfor uses allowed pursuant to OAR Chapter 660, Division 6 on designated. forest Lands; and (c) _Adopt plan policies consistent with OAR Chapter 660, Division 6. (3) This rule provides for a balance between the application of Goal 3 . "Agricultural .Lands" and Goal 4 "Forest Lands," because of the extent of lands that maybe designated as either agricultural or forestland. •FINDINGS: No portion of the subject property is designated or zoned for forest use. The record` indicates that at the time the majority of the subject property was zoned SM none of the subject property was designated or zoned for forest use. There is no evidence in the record that the subject property ever has been:engaged in corninercial forestactivities such as growing and :harvesting commercialtree species. The record indicates, and the Hearings Officer's site visit observations confirmed, that the un -mined portions of the subject property contain scattered stands of ponderosa pine and juniper trees. As discussed in the findings above, in his site-specific Kimble PA -07-2, ZC-07-2 Page 29 of 41 soils analysis Steve Wert concluded the previous mining and reclamation activities on the subject - property significantly altered the soil characteristics. The soils analysis concluded that the soil units identified on the subject property that are potentially suitable for forest uses would produce 50 °cubio feet/acre or less Wood fiber, and therefore would not be considered suitable for the production of commercial forest products. For these reasons, I find the Agriculture -designated portions of the`subject property do not constitute "forest land." : : Surface Mining Lauds 5. Division 23, Procedures and RequirementsforComplying with Goal 5 a.. OAR 660-023-010, Definitions As used in this division, unless the context requires otherwise: "PAPA" is a "post -acknowledgement plan amendment." The term encompasses actions... taken in accordance with ORS 197.610. through :197:625, including amendments to an acknowledged comprehensive plan or land use regulation and the adoption, of any new plan orland use regulation. The term does not include periodic :•review :.actions taken in accordance with ORS 197.628 through 197.650. FINDINGS: In -the Hearings Officer's previous decision in Stott (PA-98-12/ZC-98-6), I held the terni "significant resource" is not defined in Title18 or the comprehensive plan, but that a plan amendment and zone change to "de -list" and rezone an inventoried surface mining site constitutes.a "PAPA," and therefore the provisions of OAR 660-023-0180 concerning mineral and aggregate resources apply to such an application to the extent they reasonably can be applied to a decision to remove a site from the county's adopted inventory. I further found OAR 660- ,023-180(3)identifies the pertinent standards for determining the "significance" of a mineral and aggregate resource as follows: 13) -. An aggregate resource shall ; 'be considered significant if adequate information regarding the. quantity, .quality, and Location of the resource demonstratesthat the site meets any oneof the criteria in subsections (a) through (c) of this section, .. : (a) A representative set of samples of aggregate material in the deposit on the site meets 'Oregon Department .of Transportation:.(ODOT) specifications for base rock for air degradation, abrasion, and sodium sulfate soundness, and the estimated,amount of material is more than 2,000,000 tons in the Willamette .Valley; or 100,000 tons outside the Willamette Valley; Kimble PA -07-2, ZC-07-2 Page 30 of 41 (b) The material meets Iocal government standards establishing a lower threshold for significance than subsection (a) of this section; or .. The aggregate site is on an inventory of significant aggregate sites in an acknowledged plan on the applicable date of this rule. (Emphasis added.) (c) In Stott and Coats (PA -04-4, ZC-04-2), the Hearings Officer found that the applicant only needs to meet one of the three options for thesite to be considered significant. SM site 294 is included on the county's Goal 5 inventory of significant mineral and aggregate sites, and therefore. it satisfies at least one of these criteria for "significance." However, in Stott and Coats I held that ;applying criteria (c) to preclude moving a reclaimed surfacemining site from the county's inventory: . would create a 'Catch-22 ' where, as here, the applicant is seeking to remove a site from the inventory as no longer `significant, ' Consequently, I ,find the `signicant' standard in paragraph (c) should not be applied to < PAPAs requesting removal of a site from an acknowledged inventory." The Hearings Officer adheres to that holding here. The county's Goal 5 inventory of significant mineral and aggregate resources describes SM Site 294 as follows: S1Th NO. 294 ESC ' NAME TYPE QUANTITY* QUALITY QUA ACCESS/ LOCATION ...A ... 171113-00- 00817 • • Bend Aggregate S&G 777,000 Excellent Klippel Acres/Bend .•.: in cubic yards unless noted. The Hearings Officer finds the notation "S&G" means "sand and gravel," and the notation "777,000 refers to cubic yards. .The applicant's burden of proof sets forth the following history of mining on the site. The first mining permit was issued by DOGAMI in 1977 (No. 09-0079). The subject property was mined fob about . one year following issuance of the permit. Although mining activities ceased the mining permit was renewed annually. In. 1993, after Site 294 receivedcounty surface mining site ,planapproval,mining activities began again. From 1993 through 2004, approximately 1,320,192 :Cubic yards , of material: were extracted from the site. Copies of DO.GAMI'sreports for Site 294 are included as exhibits Q through AA to the applicant's burden of proof. This number is based on the: following table included in the applicant's burden of proof Year of Permit Amount extracted 6/30/93 - 6/30/94 . . .. 23,000 cubic yards 6/30/94 — 6/30/95 122;000 cubic yards 6/30/95 — 6/30/96 125,000 cubic yards 6/30/96- 6/30/97 .- 8,000 tons (17, 280 cubic yards) Kimble PA -07-2, ZC-07-2 Page 31 of 41 611/97— 5/31/98 33,400 cubic yards 6/1/98 — 5/31/99 75,000 tons (162,000 cubic yards) 6/1/99 — 5/31/00 100,000 tons (216,000 cubic yards) 6/1/00 — 5/31/01 50,000 tons (108,000 cubic yards) 6/1/01= 5/31/02 80,000 tons (172, 800 cubic yards) 5/1/02 — 4/30/03 98,200 tons (212,112 cubic yards) 6/1/03 — 5/31/04 75,000 tons (162,000 cubic yards) TOTAL 1,320,192 cubic yards Based upon these annual production figures, 1,320,192 cubic yards of resources were extracted from this mine site. `Based upon the conversion figures for this site supplied by Ben Mnnrlie of DOGAMI, 611,200 tons were extracted from the site. The County's inventory shows that approximately .359,722 tons (777,000 cubic yards) of resources were originally identified as being available on this site. Because well over that amount of resources have been mined, the applicant argues, and, the Hearings Officer agrees, that no significant resource ren►ains on SM Site 294: Therefore, 1 find.he applicant's proposed plan amendment to remove Site 294 from the county's Goal 5 inventory of significant mineral and .aggregate resource sites is consistent with Goal 5 and its implementing administrative rules concerning surface mining sites. Transportation Division 12, Transportation a. OAR 660-15-0000(12), Transportation FINDINGS: Goal 12 provides: To provide and encourage a safe, convenient and economic transportation system. A transportation plan shall (1) consider all modes of transportation including mass ,transit, air, water, pipeline, rail, highway, bicycle and pedestrian; (2) be based upon an inventory of , local, regional and state transportation needs; (3) consider the differences in social consequences that would result ` from utilizing differing •. combinations of transportation modes; (4) avoid principal reliance upon any one mode of transportation; (5) minimize adverse social, economic and environmental :impacts and costs; (6) conserve energy; (7) meet the needs of the transportation disadvantaged by improving transportation services; (8) facilitate the flow of goods and services so as to strengthen the local and regional economy; and (9) conform with local and regional comprehensive land use plans. Each plan shall include a provision for transportation as a key facility. Goal 12 is implemented by the Transportation Planning Rule (TPR), OAR 660-012-0060, Plan and Land Use Regulation Amendments, which provides in pertinent part as follows: (1) Where an amendment to a functional plan, an acknowledged comprehensive Kimble PA -07-2, ZC-07-2 Page 32 of 41 • 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 ;faclliiy 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; • Reduce the performance of an existing or planned transportation facility below the minimum ` acceptable performance standard identified in the TSP or comprehensive plan; or 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. In support of his . application; the applicant has provided: a traffic analysis dated July 12, 2007, 2007 and prepared by Scott Ferguson of Scott Ferguson & Associates; The traffic = study's analyzed the impact of net traffic impacts on Johnson Market Road from traffic generated by 16 single-family dwellings less traffic generated by surface mining activity under the current SM zoning of the subject property. The traffic study found surface mining activity would generate up to 16:pm..peak hour trips (between 4:00 and 6:00 p.m. weekdays, and that 16 dwellings would generate approximately 160 average daily vehicle trips' (ADTs) of which approximately. l6 would occur during the p.m. peak hour. Therefore, Mr. Ferguson concluded the applicant's proposed plan amendment to RREA and zone change to RR -10 would not result in a net increase traffic, and therefore the, applicant's proposal would not 'significantly affect a transportation facility. In his comments on the applicant's proposal, the county's Senior Transportation Planner Peter Russell stated he concurs with Mr. Ferguson's analysis and conclusions. For these reasons, the Hearings Officer finds the applicant's proposed plan amendment and zone change comply with the TPR Kimble PA -07-2, ZC-07-2 Page 33 of 41 Compliance with Other Statewide Goals Goal 1, Citizen Involvement. The Hearings Officer finds the proposed plan. amendment satisfies this goal. because the Planning Division provided public notice • of •the applicant's proposal through individual mailed notice to affected property owners, posting of the • subject property with a notice of proposed land use action sign, and published noticeof the public hearing in the "Bend Bulletin" newspaper. In addition, two public hearings will be held:before the proposed plan amendment is approved, one before the Hearings Officer and one before the Deschutes County Board of Commissioners (board). Finally, thestaff report and my decision will provide the public with information .concerning the proposed plan amendment. • Goal 2, Land Use Planning. The Hearings Officer finds this goal is met because at least two public hearings will be held on the proposed plan amendment and zone change: Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The applicant's proposal would remove the SM-designatedand zoned portion of the subject site from the county's Goal 5 inventory of' significant mineral and aggregate resource sites. As discussed in detail in the: findings above, the. Hearings Officer has found thesubject; site no longer contains a resource meeting the minimum threshold for significance under the Goal 5 administrative rules, and . therefore the applicant's proposal is consistent with Goal. 5. In addition, as discussed elsewhere in this decision, the WA Zone provisions applicable to the subject property will require any division of the property to be a planned or cluster development in which at least 80 percent of the land must he preserved as open space, .protecting the wildlife habitat values that are protected by. the. WA Zone. For these reasons, I find the proposed plan amendment will be consistent with this goal. Goal 6, Air, Water and Land Resources Quality. As discussed in detail in the findings below, SM Site. 294. has been reclaimed and mining activities have ceased. As discussed above, the proposed plan amendment and Zone change would allow the subject property to be developed with up to 13 new single-family dwellings on. approximately 159 acres, and therefore will have little if any impact on the quality of the air, water, and land resources. The staff report states, and the Hearings Officer agrees, that cessation of mining on the subject property has eliminated the toxic pollution created by large diesel trucks that previously traveled to 'and from the subject property, and therefore approval of the proposed plan amendment and zone change.will actually improve air quality. Therefore; I find the proposed plan amendment will be consistent with this gpal Goal 7, Areas Subject to Natural Disasters and Hazards. The Hearings Officer finds this goal is not applicable. because the subject property is not located in a known natural disaster or hazard area. Goal 8, Recreational Needs. The Hearings Officer finds this goal is not applicable because the proposed plan amendment and zonechange do not reduce or .eliminate any opportunities: for recreationalfacilities either on the subject property or in the impact area. Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the Kimble PA -07-2, ZC-07-2 Page 34 of 41 state for a variety of economic activities. The Hearings Officer finds this goal is met because the subject property no longer constitutes a significant mineral and aggregate resource, and therefore allowing it to be re -designated and rezoned for rural residential development will not have adverse economic impacts. • Goal 10, housing.. The Hearings Officer finds the proposed plan amendment is consistent with this goal because it would allow the subject property to be developed with up to 13 new single- famiiydwellings. Goal 11, Public Facilities and Services. As discussed in detail elsewhere in this decision, the Hearings Officer has found the subject property can be served by adequate public facilities and services. Therefore, I find the proposed plan amendment will be consistent with this goal. Goal 13, Energy Conservation. The Hearings Officer finds the applicant's proposal will have no effect: on • energy use or conservation because changing the plan •designation and zoning of the subject property, thereby allowing it to be developed with rural residences, will not have an energy impact related to those activities. Goal 14, Urbanization. The Hearings Officer fmds this goal is not applicable because the applicant's proposal does not affect property within an urban growth boundary and does not promote the urbanization antral land. Goals 15 through 19.: The Hearings Officer finds these goals are not applicable because they address river, ocean, and estuarine resources that are not affected by applicant's proposal. ZONE CHANGE D. • Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance FINDINGS: The applicant has requested approval of a zone change from SM to RR -10 for the subject property and to remove SM Site 294 from the county's Goal 5 inventory of significant mineral. and aggregate resource sites.. L Chapter 18.52, Surface Mining Zone (SM) Section 18.52.200, Termination of the Surface Mining Zoning: and Surrounding Surface Mining Impact Area Combining Zone A, When a surfacemining site has been fully or, partially mined,. and the operator demonstrates that a significant resource no. longer exists on the site, and that the site has been reclaimed in accordance with the reclamation plan approved by DOGAMI or the reclamation provisionsof this title, the property shall be rezoned to the subsequent use zone identified in the surface mining element of the Comprehensive Plan. -. Kimble PA -07-2, ZC-07-2 Page 35 of 41 • Concurrent with such rezoning, any surface mining impact area combining zone which - surrounds the rezoned surface mining site shall be removed. :Rezoning shall be subject -to chapter 18.136 and all other applicable sections of this title, the Comprehensive Plan and Deschutes County Code Title 22, the Uniform Development Procedures Ordinance. FINDINGS: The Hearings Officer finds this section requires the applicant to demonstrate that the site: • has been fully or partially mined; • no longer has a significant resource; and • has been reclaimed in accordancewith the DOGAMI-approvedreclamation plan. 1. Fully or Partially 1Vimed 2. No Longer a Significant Resource. . As discussed in the findings above concerning the applicant's proposed plan amendment .to remove Site 294 from the county's Goal 5 inventory of significant mineral and aggregate sites, incorporated by reference herein, the Hearings Officer finds Site 294 has been fully mined and no longer has a significant resource. 3. Reclaimed in Accordance with DOGAMI-Approved Reclamation Plan. In support of his proposed zone change the applicant submitted into the record two letters from Ben Mundie, a reclamation specialist for DOGAMI — dated September 2005 and August 2007 and included as Exhibits CC and DD to the applicant's burden of proof, respectively _.stating reclamation of Site 294 as required by DOGAMI has been completed..Opponents: do not dispute this approval. Rather, they argue the applicant's proposed zone change should not be approved because the reclamation of Site 294 did not comply with all requirements established by the county when the site was zoned SM. Section .18.52.200(A) provides that a surface mining site shall be rezoned when a surface mining site "has been reclaimed- in accordancewith the reclamation plan approved by DOGAMI or the reclamation provisions of this title." (Emphasis added.) In other words, compliance with any county reclamation requirements is not a prerequisite for a zone change when, as here, the reclamation required by DOGAMI has been completed. The county's decision approving the surface mining siteplan for Site 294 includes the following condition of approval: "Developer shall apply. to Deschutes County to rezone . the subject property after "the site had been reclaimed in accordance with the reclamation plan approved by DOGAMI and the County.." (Bold emphasis added.). - Kimble PA -07-2, ZC-07-2 Page 36 of 41 The Hearings Officer finds this condition of approval does not controlbecause it is inconsistent with the language in Section 18.52.200(A). In addition, the applicant's September 4, 2007 rebuttal memorandum points out that the record shows the county adopted a site plan for Site 294 but did not adopt a separate reclamation plan other than the DOGAMI reclamation plan. In addition, attached to the applicant's September 4 rebuttal memorandum is a copy of Ordinance No. 90-28 that specifically states the county will only approve surface mining site plans and that reclamation plans will be approved only by DOGAMI. Finally, the applicant argues, and the Hearings Officer agrees, that there is nothing in the county's code that establishes compliance with previous land use decisions as a precondition to approval of a subsequent application. In other words, even if the county had adopted its own reclamation plan with which the applicant and/or his predecessor had failed to comply, such noncompliance would not preclude approval of the proposed'plan amendment and zone change.5 Opponents also argue that even if all required reclamation has been completed, the subject property should be rezoned to EFU rather than to RR 10 because the ESEE analysis for Site 294, included in the record as Exhibit K to the applicant's burden of proof,does not designate a subsequent beneficial use or zone for the site. As noted above, Ben Mundie's August 2007 letter stated DOGAMI identified post -mining use of Site 294 to include both agriculture and rural residential use. The applicant argues, and the Hearings Officer agrees, that where, as here, the county's -ESEE analysis does not identify a post -mining .zoning the appropriate analysis is the one utilized by the applicant in this case - i.e., identifying and evaluating both the nature and capability of subject property and the existing zoning and development in the surrounding area to determine the proper plan designation and zoning. And as discussed in detail in the findings above, I have found for a number of reasons that re -designating and. re -zoning the subject property for agriculture is not justified by the character of the subject property or the surrounding area For the foregoing reasons, the Hearings :Officer finds: the applicant's proposal satisfies the requirements in Section 18.52.200 to terminate the. SM zoning of the subject property: and the surrounding SMIA zoning. '2. Chapter 18.136, Amendments a. Section 18.136.010, Amendments DCC Title 18 may be amended asset forth in. DCC 18.136. The procedures for text or legislative map changes shall be as set forth in DCC 22.12. A request by a property owner for a. quasi-judicial map amendment shall be accomplished by filing an application on forms provided . by the Planning Department and shall be subject to applicable procedures of DCC Title 22. 5 Similarly, compliance with other aspects of the county -approved site plan for Site 294 — such as use of irrigation water, compliance: with a wildlife conservation plan, .providing vegetative screening — is not a precondition for. the proposed .plan amendment .and zone change: And as the applicant points out in his September 4, 2007 rebuttal memorandum, these site plan conditions applied to surface mining activity on Site 294 and not to post -mining uses. Kimble PA -07-2, ZC-07-2 Page 37 of 41 FINDINGS: The . applicant requests approval of a zone change fromSM to RR -10 for the subject property. The applicant submitted an application for a quasi-judicial zone change for the subject property on county land use application forms. The Hearings Officer finds the proposed zone .change is being reviewed pursuant to the procedures in Title 22 of the county code. • b. 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. FINDINGS: The Hearings Officer finds the county's comprehensive plan is implemented by the provisions of the zoning ordinance. Therefore, I find compliance with the zoningordinance will assure compliance with the comprehensive plan. 13. That the . change in classification for. the subject . property is consistent with the purpose ,and intent of the proposed zone classification. FINDINGS: Section 18.60.010. sets forth the purpose of the RR: 10 Zone as follows: The purposes of the Rural Residential Zone are to provide rural residential living environments; to provide standards for rural land use and development consistent with desired rural character and the capability of the land and natural resources, to manage the extension of : public services; to provide for public review of nonresidential uses; and to balance the public's interest. in .the management of community growth with the protection of individual property rights through review procedures and standards. As discussed in the findings above, most of the land abutting and surrounding the subject property is designated and zoned RR -10. Much of this land consists of lots in the Klippel Acres Subdivision developed with single-family dwellings. Approval of the proposed zone change would allow the subject property to -be developed with uses permitted in the RR-10.Zone including rural residences On large lots. And as also discussed above, because the subject property is within the WA Zone, any. partition or subdivision development would be subject to the. WA Zone requirements of clustering dwellings: and preserving at least 80. percent of the property as open space. The Hearings officer finds such development will be consistent with the purposes of the RR -10 Zone and will provide a suitable rural residential living environment with adequate services. C. That changing the zoning will presently :serve thepublic health,: safety and welfare considering the following factors: Kimble PA -07-2, ZC-07-2 Page 38 of 41 The availability and efficiency of providing necessary public services and facilities. FINDINGS: As discussed in the findings above, the subject property has transportation access from Johnson Market Road, a designated rural collector road. The applicant's submitted traffic study indicates traffic anticipated to be generated by rural residential development on the subject property permitted in the RR 10 Zone will not exceed the capacity'of this road. In addition, the subject property will receive police protection from the Deschutes County Sheriff and fire protection from the Bend *Fire Department. The record indicates any new residential development of the subject property will be served by on :site individual or eomniunity wells, and will-: require approval of on-site. septic systems. The existence of nearby -rural residential .development indicates electrical and telephone service will be available to turas residential development on the subject property: For these reasons, the Hearings Officer finds the applicant's proposed zone change satisfies this criterion. 2. . The impacts on surrounding land use will be consistent with the specific goals and policies contained within the Comprehensive Plan. FINDINGS: This zone change approval criterion requires impacts on surrounding' land from the zone change to be "consistent" with the goals and policies. The comprehensive plan goals and policies do not establish mandatory zone change approval criteria: Theproposed zone ahi ge; in and of itself, will have no impact on surrounding lands . because it will simply change the county's zoning map. Development of the subject property Mowing 'the proposed zone change to RR -1O will be subject to development approval standards in the RR - 10 and: WA Zones, some of Which require 'compatibility with surrounding land uses: For these reasons, the ',Hearings Officer finds this criterion does not require me to determine whether the proposed;zone change. would be compatible with surrounding land uses. Nevertheless, because opponents have raised several compatibility issues, I will address them under this approval criterion: :1. Not Computibk with Character of Opponents argue the proposed zone change to RR - .10 R.10 will permit development incompatible with the surrounding area. As discussed in the findings above, most of the surrounding area is designated and zoned Rural Residential and is developed with rural residences, 'many of which are on lots in the Klippel Acres Subdivision that are smaller than the 10 -acre minimum lot size in' the RR -10 Zone and ,on which many opponents live. Therefore, I find residential development of the subject property will be very similar to the majority of surrounding development. In addition, as also discussed above, because the subject property also is zoned WA, any partitioning or subdividing of the subject property following the zone change to RR -10 will be subject to the WA Zone requirements' that dwellings be clustered and that at least 80 percent of the land be preserved as open space. For these reasons, I find the applicant's proposed zone change from SM to RR -10 will allow development compatible with the existing -rural residential character of the surrounding area. 2. Impacts on Wildlife. The subject property is zoned WA because it is located in the Tumato Deer Winter Range. Therefore, development of the subject property under the proposed RR -10 Zone also would be subject to the WA Zone requirements, including limitations on partitions and Kimble PA -07-2, ZC-07-2 Page 39of41 subdivisions requiring the clustering of dwellings and preservation of large areas of open space to protect wildlife habitat. For these reasons, the Hearings Officer finds the applicant's proposed zone change to RR -10 will not allow development inconsistent with the wildlife habitat values protected by the WA Zone. 3.Street System Impacts Opponents argue the applicant's proposed zone change will allow development generatingtraffic that will exceed the capacity of affected streets. As discussed in thefindings above, the subject property has frontage on and access to Johnson Market Road, and the applicant submitted a. traffic study concluding that the addition of traffic generated by rural residential development.,. of the subject property under the RR -10 Zone would not exceed the eapacity of this road. Opponents also have expressed concern that roads in the Klippel Acres Subdivision - Buck Drive. and Klippel Road in particular — cannot safely handle additional trade. The Hearings .Officer made the following observations- about Klippel Road in my site visit report. "`Klippel Road is a narrow, winding undulating gravel road to the point I estimated to be approximately one-quarter.. mile east of Johnson Market Road where the road has a narrow, poorly maintained paved surface. It was my impression that both the paved and unpaved segments of Klippel Road are no more than 12 toISfeet wide." The -applicant argues, and the Hearings.Offscer agrees, that access to the subject property will be adequate: from Johnson Market Road, and : that thatif and when an application for partition or :subdivision approval for the subject property under: RR -10 zoning is submitted the county will evaluate the capacity of other roads to handle partition or subdivision traffic, and may require as a condition of development; approval that the applicant to improve local roadsto handle additional traffic. 4. Impact on Wells Opponents raised concerns about the impact of developed at RR -10 Zone density of the subject property on existing wells in the area. The record indicates there is an existing well on the subject property, and that Klippel Acres Subdivision lots are... served by a community well. There is no evidence in the record that use of the existing well on the subject property has had any effecton the Klippel Acres well or other wells in the surrounding area.:And inany event, the adequacy of groundwater water for domestic uses and fire protection will be evaluated at the time of any application for partition or subdivision approval for the subject property. For theforegoing reasons, the Hearings Officer finds the applicant's proposed zone change from SM to RR -10 satisfies this approval criterion. - • . 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: The applicant argues the proposed zone change from SM to RR -10 is justified by changes in circumstance consisting of the depletion of the subject property's inventoried mineral Kimble PA -07-2, ZC-07-2 Page 40of41 and aggregate resources through mining activity such that the subject property no longer contains a significant resource. As discussed in the plan amendment findings above, the applicant argues the proposed zone change is required under Section 18.52.200 because mining and reclamation have been completed and no significant resource remains on Site 294. Finally, as also discussed . in the findings above, the Hearings Officer has found the RR -10 Zone is the appropriate zone for the subject property following completion of mining and reclamation because of the character of the surrounding area which is predominantly rural residential. For these same reasons, the Hearings Officer finds the proposed zone change from SM to RR -10 is justified by changes in circumstance since the subject property was zoned SM. And I find that approval of this zone change will concurrently remove the associated SMIA Zone. IV. DECISION: Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby recommends APPROVAL of the applicant's proposed plan amendment from Agriculture and Surface Mining to Rural Residential Exception Area and proposed zone change from SM to RR - 10, R10, SUBJECT TO THE FOLLOWING CONDITION OF APPROVAL: 1. Prior to final approval of the plan amendment, goal exception and zone change, the applicant shall provide to the Planning Division: a. a metes -and -bounds legal description of the portions of the subject property to be designated Rural Residential Exception Area and zoned RR -10; b. a map at a scale no smaller than 1 inch equals 300 feet showing the portions of the subject property designated Rural Residential Exception Area under this decision; and c. a map at a scale no smaller than 1 inch equals 300 feet showing the portions of the subject property zoned RR -10 under this decision. Dated this, day of November, 2007. Mailed this / day of November, 2007. Karen H. n, Hearings gs Offccer in Kimble PA -07-2, ZC-07-2 Page 41 of 41 REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 1.8, the Deschutes County Zoning Map, to Change the Zone Designation on Certain Property from Surface Mining (SM) to Rural Residential (RR -10). * * * ORDINANCE NO. 2008-006 WHEREAS, Harris C and Nancy Kimble and CLR, Inc. have proposed a zone change to Title 18, Deschutes County Zoning Map, to rezone certain property from Exclusive Farm Use (EFU) and Surface Mining (SM) to Rural Residential (RR -10) Zone; and WHEREAS, notice was given and hearing conducted on January 7, 2008, before the Board of County Commissioners ("Board") in accordance with applicable law; and WHEREAS, the Board after reviewing all the evidence presented at the public hearing, agrees with the findings of the Hearings Officer, and WHEREAS, on this same date, the Board adopted Ordinance 2008-001 amending Title 23 of the Deschutes County Code by adopting an exception to Goal 3, changing the plan designation of the property from Agricultural to Rural Residential Exception Area; and . WHEREAS, the Deschutes County Board of Commissioners, after review conducted in accordance with applicable law, approved the proposed change to the County Zoning Map; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. AMENDMENT. DCC Title 18, Zoning Map, is hereby amended to change the zone designation of the subject property, as described by the legal description attached as Exhibit "A" to Ordinance 2008-001 and depicted on the map set forth as Exhibit "B" to Ordinance 2008-001, and by this reference incorporated herein, from SURFACE MINING (SM), RURAL RESIDENTIAL (RR -10) Zone. Section 2. AMENDMENT. The effect of rezoning the subject property to RR -10 zoning, together with the concurrent rezoning of the rest of Surface Mine Site 294 is to remove the Surface Mining Impact Area (SMIA) combining zone classification created to protect Surface Mine Site 294 from any parcel, or portion thereof, located within one-half mile of the subject property described in Section 1 above without affecting other SMIA combining zones in the area. /// PAGE 1 OF 2 - ORDINANCE NO. 2008-006 (1/23/08) Section 3. FINDINGS. The Board adopt as its findings in support of this decision, the Decision of the Board of County Commissioners, attached as Exhibit "E" and by this reference incorporated herein. Dated this of , 2008 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: DENNIS R. LUKE, CHAIR TAMMY. (BANEY) MELTON, VICE CHAIR' Recording Secretary MICHAEL M. DALY, COMMISSIONER Date of 1st Reading: day of , 2008. Date of 2nd Reading: day of 2008. Record of Adoption Vote Commissioner Michael M. Daly Dennis R. Luke Tammy Baney Yes No . Abstained Excused Effective date: day of ., 2008. ATTEST: Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2008-006 (1/23/08) REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE TIM BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 18, the Deschutes County Zoning Map, to Change the Zone 1 Designation on Certain Property from Surface Mining (SM) to Rural Residential (RR -10). * * ORDINANCE NO. 2008-009 * WHEREAS, Harris C. and Nancy Kimble and CLR, Inc. proposed to change the zoning designation of certain property from Surface Mine, SM to Rural Residential, RR -10; and WHEREAS, this property is the part of Surface Mine Site 294 that was designated by Exhibits A and B of Ordinance No. 92-60 as a goal exception area; and WHEREAS, the County's land use hearings officer has conducted a land use hearing and rendered a decision approving the application; and WHEREAS, no appeal of this decision was filed and the Board did not initiate a review of the hearings officer's decision and the time for filing an appeal and initiating review has passed; and WHEREAS, DCC 22.28.030 (A) requires that all quasi-judicial zone changes be adopted by the Board of County Commissioners; and WHEREAS, DCC 22.28.030 (B) says that in the absence of an appeal or initiation of review by the Board that the Board adopt the Hearings Officer's decision and that no argument or further testimony shall be taken by the Board; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ORDAINS as follows: Section 1. AMENDMENT. DCC Title 18, Zoning Map, is hereby amended to change the plan designation for certain property described as all land described on Exhibit "A" and depicted on Exhibit "B," attached and by this reference incorporated herein, from Surface Mine to Rural Residential Exception Area less that part of the property described on Exhibit "A" of Ordinance 2008- 001 and depicted on the map set forth as Exhibit "C" to Ordinance 2008-001, both documents incorporated by reference herein. 1/1 PAGE 1 OF 2 - ORDINANCE NO. 2008-009 (1/23/08) Section 2. FINDINGS. The Board adopts as its findings in support of this decision the Decision of the Hearings Officer, attached as Exhibit "C" and incorporated by reference herein. Dated this of , 2008 ATTEST: BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON DENNIS R. LUKE, CHAIR TAMMY (BANEY) MELTON, VICE CHAIR Recording Secretary MICHAEL M. DALY, COMMISSIONER Date of 1st Reading: day of , 2008. Date of 2nd Reading: day of , 2008.. Record of Adoption Vote Commissioner Yes No Abstained Excused Michael M. Daly Dennis R. Luke Tammy Haney Effective date: day of , 2008. ATTEST: Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2008-009 (1/23/08) EXHIBIT A DESCRIPTION OF LANDS TO BE REZONED TO RR -10 A parcel of land located in Section 13, Township 17 South, Range 11 East, Willamette Meridian, Deschutes County, Oregon, being more particularly described as follows: Beginning at the north quarter comer of said Section 13; thence along the north line of .the northeast quarter of said Section 13 South. 89°4'50" East a distance of 591.71 feet; thence leaving said north line South .00003125" West a distance of 648.84 feet; thence South 89°4750" East a distance of 454.57 feet; thence South OO°44'20" East.a distance of 87.74 feet; thence South 59°0740" West a distance of 152.05. feet- thence North 89°47'50" West a distance of 520.24 feet; thence South 00° 15'50'.', West a distance' of 580.85 feet; thence North 84°33'35" West a distance 'of 401.4 fret; thence North 00°16'00" East a distance of 29.81 feet; thence South 86-025'08'" Weit a'distance of 415.77 feet; thence South 72°40'52" West a distance of 329.65, feet; : thence. South - .76°41'24" West a distance of .74.15 feet; thence South 07°21'14". West a. distance .of 313.32 feet; thence South 44°18'46": East a distance of 208.94 feet; thence South 05°22'46" West a distance of 230.63 feet; thence South 03°06'11" West ;a distance of 147.80 feet; thence South 17°39'06" West a distance of 8916 feet; thence South - 89°30'44" Easta distance of 978.27 feet:to. Tumalo Creek; thence: along Turnalo Creek the following seven (7) courses: South 47°16'27" West a distance of 163.55 feet; South 16°23'29" West a distance of 38.04 feet; South 08°06'29" East a distance of 84.34 feet; South 10°21'41" West a distance of 39.16 feet; South 41°11'03" West a distance of 62.05 feet; South 61°41'31" West a distance of 82.32 feet; South 35°16'06" West a distance of 128.61 feet; thence leaving Tumalo Creek North 89°30'44" West a distance of 936.06 feet; thence ' South 30°19'53" West a distance of 43.22 feet; thence South 08°35'23" West a distance of 403.92 feet; thence South 40°03'23" West a distance of 212.60 feet; thence South 24°36'23" West a distance of 144.06 feet; thence South 46°27'23" West a distance .of 166.22 feet; thence South 22°55'23" West a distance of 20.94 feet; thence South 89°31'42" East a distance of 422.86 feet to Tumalo. Creek; thence along Tumalo Creek the following six (6) courses: South 39°17'22" West a distance of 73.53 feet; South 57°05'13" West a distance of 33.75 feet; South 45°56'25" West a distance of 23.66 feet; South 6319'46" West a distance of 39.99 feet; South 54° 17'50": West a distance of 69.78 feet; South 43°37'57" West a distance of 39.50 feet; South 30°47'32" West a distance of 54.97 feet; December 18, 2007 S:\Land Projects \041125 -Klippel Ranch\docs\LEGAL - RRIO zone boundary.doc. thence leaving Tumalo Creek North 89°53'32" West a distance of 69.23 feet; thence South 00°02'12" West a distance of 86.97 feet to Tumalo Creek; thence along Tumalo Creek South 28°27'59" West a distance of 76.99 feet and South 53°59'11" West a distance of 22.55 feet; thence leaving Tumalo Creek North 85°5528" West a distance of 220.93 feet; thence North 22°55'23" East a distance of 211.17 feet; thence North 85°54'08" West a distance of 409.39 feet; thence North 20°47`32" West a distance of 405.22 feet; thence North 04°53'56" East a distance of 281.65 feet; thence North 08°39'56" East a distance of 241.33 feet; thence North 00°54'26" East a distance of 419.90 feet; thence North 07°30'26" East a distance of 326.74: feet; thence North 14°42'34" West a distance .of 117.66 feet; thence North 71°56'04" `West a distance of 111.75 feet; thence South 84°59'56" West i distance of 203.80 feet; thence South 80°28'03" West a distance of 39.44 feet; thence North 21°50'14" East a distance of 1056.75 feet; . thence South 69°29'01" West a distance of 337.80 . feet; thence South 89°06'27" West a. distance of 210.10 feet; thence North 65°06'54" West a distance of 178.61 feet to the west line of the northwest quarter of said Section 13; thence along said west line North 00°2225" East a distance of 181.84 feet; thence Leaving said west line South 89°55'06" East a distance of 367.94 feet; thence North 73°18'12" East a distance of 126.78 feet; thence North 09°00'03"West a distance. of 320.02 feet; thence North 86°02'23" West a distance of 437.86 feet to said west line; thence along said west line North 00°22'25" East a - distance of 609.18 feet to the northwest corner of said Section 13; thence along the north line of the northwest quarter of said Section 13 North 89°57'11" East a distance of 377.97 feet; thence leaving said north line South 00°02'41" West a distance of 225.00 feet; thence North 89°56'54" East a distance of 360.00 feet; thence North 76°43'32" East a distance of 258.47 feet; thence South 62° 16'43" East a distance of 391.15 feet; thence South 01°19'10" East a distance of 211.35 feet; thence North 57°35'56" East a distance of 111.60 feet; thence North 61°34'56" East a distance of 250.00 feet; thence South 28°25'04" East a distance. of .150.00 feet; thence North 61°34'56" East a distance of 300.00 feet; thence North 28°25'04" West a distance of 150.00 feet; thence North 47°43'56" East a distance of 354.60 feet to the north line of the northwest quarter o_ f said Section 13; thence along said north line North 89°57'11" East a distance of 444.56 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. See attached map titled "EXHIBIT 13", hereby incorporated by reference. PROFESSIONAL,�. . JULY -10, 2007 PATRICK GAGE CO:#i i ;x'0.1 L. ;f December 18, 2007 ' �tk 1 z.7 V ' S:\Land Projects\041125-Klippel Ranch\docs\LEGAL - RRIO zone boundary.doc EXHIBIT "B" LANDS TO BE RE -ZONED TO RR -10 11 12N895711 E 14 13377.97"x to 01 b 437 N86, w 721 126.78' S8985'087 387.94' 76718284' SECTOR 12 SECTOR 13 1893659E t176.4°21 4 358 03'3'3944' 5956'W 28380' BASIS OF BEARINGS N895711'E 262539' N5134787' 25800' 50179707 211.35' N2875047' 1010w N5174 56 E 30800' 25041' 15800' N5735 56 7 111.60' 54418'45'E 20894' /„.-N7155'0413 111.75' . 505724613 23863' N14'427413 117.66' 503V671'W 14180' • 2 —W 0, (j4jJ1 ( ! NOB'39551t 241.33' It N� 53'56T 281.85'-+ 23 A24 N0076'OO E 2. 81' 28 S72W052'W 329.6- 576'41741V 74.15' '33'3S1y 401.64 517'39'08'W 8916' 5893044E 978.27' CENTER OF SECRQN 13 3307953'3 54627'23'W 166.22' of R95225.p.313,.w. 543' 757'W 36. 439 12 N89V0 W 938 A h 540V3'23'W 1560' 436'13W 4406' 58931142E TuMALO 2286' 539172213 7153' 55796Y3'W 3175' 36'25'W 2366' X77 QQ W 99i .99' 471Y 54.97' 52 5895352E 69.23' N225523E 211117' 1 02'12'3 8897 52827591» 76.99' 35359'71-» 22.55' 855528'W 22093' Gv 24 477627'W 16555' 51623'29'3 3804' 08V7'40E 84.46' 021411W 39.18' ►7103'3 6505' 56141 J1'W 8232' 535760613 12861' NORTH SCALE 1.-600' REGISTERED PROFESSIONAL ND SURVEY IWJ2JL JULY 10. 2007 PATRICK GAGE COLE 79157 LS RENEWAL DATE: 12/31/07 I 1 REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 23, the Deschutes County Comprehensive Plan, to Remove Kimble * ORDINANCE NO. 2008-010 Property from Goal 5 Surface Mining Inventory. WHEREAS, Harris C. and Nancy Kimble and CLR, Inc. proposed to change the comprehensive plan designation of certain property from Surface Mine to Rural Residential Exception Area; and WHEREAS, this property is the part of Surface Mine Site 294 that was designated by Exhibits A and B of Ordinance No. 92-60 as a goal exception area; and WHEREAS, now that Surface Mine Site 294 has been fully mined and reclaimed under the authority of SP -91-163 the subject property must be removed from Deschutes County's Goal 5 Inventory in the county's comprehensive plan; and WHEREAS, the County's land use hearings officer conducted a land use hearing and rendered a decision approving the application: and WHEREAS, no appeal of this decision was filed and the Board of County Commissioners ("Board") did not initiate a review of the hearings officer's decision and the time for filing an appeal and initiating review has passed; and WHEREAS, DCC 22.28.030 (A) requires that all quasi-judicial plan amendments be adopted by the Board; and WHEREAS, DCC 22.28.030 (B) says that in the absence of an appeal or initiation of review by the Board that the Board adopt the Hearings Officer's decision and that no argument or further testimony shall be taken by the Board; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ORDAINS as follows: Section 1. AMENDMENT. DCC Title 23, The Deschutes County Comprehensive Plan Map is hereby amended to change the plan designation for certain property described as all land described on Exhibit "A" and depicted on Exhibit "B," attached and by this reference incorporated herein, from Surface Mine to Rural Residential Exception Area less that part of the property described in Exhibit "B" of Ordinance 2008-001 and depicted on the map set forth as Exhibit "C" to Ordinance 2008-001, both documents being incorporated by reference herein. PAGE 1 OF 2 - ORDINANCE NO. 2008-010 (1/23/08) Section 2. AMENDMENT. DCC 23.100.070. Goal 5 Inventory is amended as in Exhibit "D", attached and incorporated by reference herein. Section 3. FINDINGS. The Board adopts as its findings in support of this decision the Decision of the Hearings Officer, attached as Exhibit "E" and incorporated by reference herein. Dated this of , 2008 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: DENNIS R. LUKE, CHAIR TAMMY BANEY, VICE CHAIR Recording Secretary MICHAEL M. DALY, COMMISSIONER Date of 1st Reading: day of , 2008. Date of 2nd Reading: day of , 2008. Record of Adoption Vote Commissioner Yes No Abstained Excused Michael M. Daly Dennis R. Luke Tammy Baney Effective date: day of , 2008. ATTEST: Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2008-010 (1/23/08) REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Title 18, the Deschutes County Zoning Map, to Change the Zone Designation on Certain Property from Surface Mining (SM) to Rural Residential (RR -10). * ORDINANCE NO. 2008-009 * * WHEREAS, Harris C. and Nancy Kimble and CLR, Inc. proposed to change the zoning designation of certain property from Surface Mine, SM to Rural Residential, RR -10; and WHEREAS, on same date, the Board of County Commissioners ("Board") adopted Ordinance 201)8- 010 amending DCC 23.100.070 to remove the subject property from Deschutes County's Goal 5 inventory 1 ist; and WHEREAS, an amendment to the county's zoning map is necessary to implement the comprehensive plan change in Ordinance 2008-010; and WHEREAS, no appeal of this decision was filed and the Board did not initiate a review of the hearings officer's decision and the time for filing an appeal and initiating review has passed; and WHEREAS, DCC 22.28.030 (A) requires that all quasi-judicial zone changes be adopted by the Board of County Commissioners; and WHEREAS, DCC 22.28.030 (B) says that in the absence of an appeal or initiation of review by the Board that the Board adopt the Hearings Officer's decision and that no argument or further testimony shall be taken by the Board; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ORDAINS as follows: Section 1. AMENDMENT. DCC Title 18, Zoning Map, is hereby amended to change the plan designation for certain property described as all land described on Exhibit "A" and depicted on Exhibit "B," attached and by this reference incorporated herein, from Surface Mine to Rural Residential Exception Area less that part of the property described on Exhibit "B" of Ordinance 2008- 001 and depicted on the map set forth as Exhibit "C" to Ordinance 2008-001, both documents incorporated by reference herein. /// PAGE 1 OF 2 - ORDINANCE NO. 2008-009 (1/23/08) Section 2. FINDINGS. The Board adopts as its findings in support of this decision the Decision of the Hearings Officer, attached as Exhibit "E" to Ordinance 2008-010 and incorporated by reference herein. Dated this ATTEST: , 2008 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON DENNIS R. LUKE, CHAIR TAMMY BANEY, VICE CHAIR Recording Secretary MICHAEL M. DALY, COMMISSIONER Date of 1St Reading: day of , 2008. Date of 2nd Reading: day of , 2008. Record of Adoption Vote Commissioner Yes No Abstained Excused Michael M. Daly Dennis R. Luke Tammy Baney Effective date: day of , 2008. ATTEST: Recording Secretary PAGE 2 OF 2 - ORDINANCE NO. 2008-009 (1/23/08) EXHIBIT A DESCRIPTION OF LANDS TO BE REZONED TO RR -10 A parcel of land located in Section 13, Township 17 South, Range 11 East, Willamette Meridian, Deschutes County, Oregon, being.more particularly described as follows: Beginning at the north quarter comer of said Section 13; thence along the north line of .the northeast quarter of said Section 13 South 89°47'50" East a distance of 591.71 feet; thence leaving said north line South .00°0375" West a distance of 648.84 feet; thence South 89°47'50 East a distance of 454.57 feet; thence South 00°44'20" East a distance of 87.74 feet; thence 'South 59°07'40" West a distance of 152.05: feet; thence North 89°47'50" West a distance of 520.24 feet; •thence South 00°15'50°.;West a distance"of 580.85 feet; thence North' 84°33'35" West a distance of 401.64, feet; thence North 00°16'00" East a distance of 29.81 feet; thence South 86°25'08"_ West a'distarice of 415.77 feet; thence South 72°40'52" West a distance of 329.65. feet thence_ South .76°41'24" West a distance of .74.15 feet; thence South 07°21'14".: West a. distance of 3.13.32 feet; thence South 44°18'46".East, a distance of 208.94 feet; thence South 05°22'46" West a distance of 230.63 feet; thence South 03°06'11" West a 'distance of 147.80 feet; thence South 17°39'06" West a distance of 89A 6 feet; thence South.. • 89°30'44" East a distance of 978.27 feet: to Tumalo Creek; thence. along Tuinalo Creek the following seven (7) courses: South 47°16'27" West a distance of 163.55 feet; South 16°23'29" West a distance of 38.04 feet; South 08°06'29" East a distance of 84.34 feet; South 10°21'41" West a distance of 39.16 feet; South 41°11'03" West a distance of 62.05 feet; South 61°41'31" West a distance of 82.32 feet; South 35°16`06" West a distance of 128.61 feet; thence leaving Tumalo Creek North 89°30'44" West a distance of 936.06 feet; thence South 30°19'53" West a distance of 43.22 feet; thence South 08°3523" West a distance of 403.92 feet; thence South 40°03'23" West a distance of 212.60 feet; thence South 24°36'23" West a distance of 144.06 feet; thence South 46°27'23" West a distance .of 166.22 feet; thence South 22°55'23" West a distance of 20.94 feet; thence South 89031'42" East a distance of 422.86 feet to Tumalo. Creek; thence along Tumalo Creek the following six (6) courses: South 39°17'22" West a distance of 73.53 feet; South,57°05`13" West a distance of 33.75 feet; South 45°56'25" West a distance of 23.66 feet; South 63°19'46" West a distance of 39.99 feet; South 54°17''50": West a distance of 69.78 feet; South 43°37'57" West a distance of 39.50 feet; South 30°47'32" West a distance of 54.97 feet; December 18, 2007 S:\Land Projects \041125 -Klippel Ranchldocs\LEGAL - RRIO zone boundary.doc" thence leaving Tumalo Creek North 89°53'32" West a distance of 69.23 feet; thence South 00°02'12" West a distance of 86.97 feet to Tumalo Creek; thence along Tumalo Creek South 28°27'59" West a distance of 76.99 feet and South 53°59'11" West a distance of 22.55 feet; thence leaving Tumalo Creek North 85°5528" West a distance of 220.93 feet; thence North 22°55'23" East a distance of 2,11.17 feet; thence North 85°54'08" West a distance of 409.39 feet; thence North 20°47'32" West a distance of 405.22 feet; thence North 04°53'56" East a distance of 281.65 feet; thence North 08°39'56" East a distance of 241.33 feet; thence North 00054126' East a distance of 419.90 feet; thence North 07°30'26" East .a distance of 326.74; feet; thence North 14°42'34" West a distance .of 117.66 feet; thence North 71°56'04" West a distance of 111.75 feet; thence South 84°59'56" West a distance of 203.80 feet; thence South 80°28'03" West a distance of 39.44 feet; thence North 21°56'14" East a distance of 1056.75 feet; . thence South 69°29'01" West a distance of 337.80 . feet; thence South 89°06'27" West a. distance of 210.10 feet; thence North 65°06'54" West a distance of 178.61 feet to the west line of the northwest quarter of said Section 13; thence along said west line North 00°2225" East a distance of 181.84 feet; thence leaving said west line South 89°55'06" East a distance of 367.94 feet; thence North 73°18'12" East a distance of 126.78 feet; thence North 09°00'03" West a distance of 320.02 feet; thence North 86°02'23" West a distance of 437.86 feet to said west line; thence along said west line North 00°22'25" East a. distance of 609.18 feet to the northwest comer of said Section 13; thence along the north line of the northwest quarter of said Section 13 North 89°57'11" East a distance of 377.97 feet; thence leaving said north line South 00°02'41" West a distance of 225.00 feet; thence North 89°56'54" East a distance of 360.00 feet; thence North 76°43'32" East a distance of 258.47 feet; thence South 62°16'43" East a distance of 391.15 feet; thence South 01019'10" East a distance of 211.35 feet; thence North 57°35'56" East a distance of 111.60 feet; thence North 61°34'56" East a distance of 250.00 feet; thence South 28025'04" East a distance. of .150.00 feet; thence North 61°34'56" East a distance of 300.00 feet; thence North 28°25'04" West a distance of 150.00 feet; thence North 47°43'56" East a distance of 354.60 feet to the north line of the northwest quarter of said Section 13; thence along said north line North 89°57'11" East a distance of 444.56 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. See attached map titled "EXHIBIT B", hereby incorporated by reference. PROFESSIONAL. IONA .. f Oi I' / JULY -10, 2007 - PAffticK GAGE COU; U; 1 _:... ;Odes;!.' ,d December 18, 2007 ,j I z7 > r "] S:1Land Projects1041125-Klippel Ranch\docs\LEGAL - RRl O zone boundary.doc EXHIBIT "B" LANDS TO BE RE -ZONED TO RR -10 PO 1112NB9s7vE !4 13 wg BASIS OF BEARINGS 11895711"E 262539' SECTION 12 SECTION 13 TfSI NINOB 3956E 24,.33' I IF] 1"\.N45356E 281.55' N 5.4 N613456'E 25000' N8957711' • 444 47'43'• - E 354. N282504' s894r50E 591.71' H6134 56 E 300.00' 04E 15a00' N5735'S8E 11L60' 94478'46E 20994' N71560414 111.75' 50522'46'4 23063' N144134'W 117.66' 50317671'19 147.80' 54627'23'W r `T N0076'0O E• 25 81= 418.77' 56$25'01314 S72'4052'W 3266:' 8764124'4 74.15 51739'061V 8116' 5893044E 978.2r 5307953'W 166.22' 52255.2314---..„ 22' N84U,rj 1i. 40�" L6,3+.� s1: re s. SECTION 12 SECTION 13 ‘189'47:50190 52 d �gS 24 CENTER Or SE0110N 13� 5893142E N897044 W 936 540173'23'W121260' 4U6'2.314 44.96' 543;37'57'W 39 40&39 42286' 11225523E 211117' NSALO 539772214' 7553' 55705'13' 3175' 66' $4.71 '441Y 9 39.99' 4732'4'54.97 5695332E 69.23' 00'02'12' 85.97' 5282759' 76.99' 5535911'W 2255 8555281v 221193' A3 24 S4776'719 16555' 51623'29'4 3604' s08Vr40E 84.46' 510214114' 39.16' 17103'W 6205' 561'41%.1119 8232' 5357606"W 12661' NORTH SCALE 1%400' /_► IWJ2IL JULY 10, 2007 PATRICK GAGE COLE 79157 LS REGISTERED PROFESSIONAL ND SURVEY Tot' 87. 559Vr40'W 15 RENEWAL DATE: 12/31/07