HomeMy WebLinkAboutWhether to Hear Appeal - Nash
Nash
CU-05-15
Page 1 of 33
DECISION OF DESCHUTES COUNTY PLANNING DIVISION
FILE NUMBER: CU-07-93
APPLICANTS/
PROPERTY OWNERS: Charles K. and Janet M. Nash
25700 Spencer Wells Road
Bend Oregon 97701
APPLICANTS’ AGENT: Land Use Consulting
510 N.E. 3rd Court
Bend, Oregon 97701
OPPONENT’S
ATTORNEY: Paul D. Dewey
1539 N.W. Vicksburg
Bend, Oregon 97701
Attorney for Central Oregon LandWatch
REQUEST: The applicants request conditional use approval to establish a
nonfarm dwelling on a 160-acre parcel zoned EFU-HR and located
south of Highway 20 and west of Millican east of Bend.
STAFF REVIEWER: Will Groves, Senior Planner
HEARING DATE: November 13, 2007
RECORD CLOSED: December 21, 2007
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.04 Title, Purpose and Definitions
* Section 18.04.040, Definitions
2. Chapter 18.16 Exclusive Farm Use (EFU) Zone
* Section 18.16.030, Conditional Uses Permitted – High Value and Nonhigh
Value Farmland
* Section 18.16.050, Standards for Dwellings in EFU Zones
* Section 18.16.070, Yards
3. Chapter 18.88, Wildlife Area Combining Zone
* Section 18.88.020, Application of Provisions
Nash
CU-07-93
Page 2 of 33
* Section 18.88.040, Uses Permitted Conditionally
* Section 18.88.050, Dimensional Standards
* Section 18.88.060, Siting Standards
* Section 18.88.070, Fence Standards
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.24, Land Use Action Hearings
* Section 22.24.140, Continuances and Record Extensions
C. Oregon Administrative Rules Chapter 660, Land Conservation and Development
Commission
1. Division 33, Agricultural Lands
* OAR 660-033-130, Minimum Standards Applicable to the Schedule of
Permitted and Conditional Uses
II. FINDINGS OF FACT:
A. Location: The subject property does not have an assigned address. It is identified as Tax
Lot 1401 on Deschutes County Assessor's Map 19-14, and is located south of Highway
20, northeast of China Hat Road, and west of Millican approximately 25 miles southeast
of Bend.
B. Zoning and Plan Designation: The subject property is zoned Exclusive Farm Use-Horse
Ridge Subzone (EFU-HR). It also is zoned Wildlife Area Combining Zone (WA) because
of its location within an antelope range. The property is designated Agriculture on the
comprehensive plan map.
C. Site Description: The subject property is approximately 160 acres in size and square in
shape. It has varying topography with lower areas running parallel to and on the
southwest side of Ford Road, higher terraces in the northeast and southwest portions of
the property, and rock outcroppings in the southeast corner. The property has no
irrigation water rights but is receiving farm tax deferral. Vegetation consists of native
sagebrush and grasses with a few scattered juniper trees on the upland portions of the
property. The property is vacant. It has access from and is bisected by Ford Road which
connects with Highway 20 several miles north of the subject property. The record
indicates the property is part of the applicants’ Evans Wells Ranch consisting of 2,200
deeded acres and 60,000 acres of grazing allotments on public land managed by the U.S.
Bureau of Land Management (BLM) and Forest Service (USFS), and on which they
graze 250 head of cattle.
D. Soils: The Natural Resources Conservation Service (NRCS) data in the record show the
subject property is composed of the following four soil units:
Nash
CU-07-93
Page 3 of 33
Unit 19A, Borobey sandy loam, 0 to 5 percent slopes: This soil is composed of 85%
Borobey soil and similar inclusions and 15% contrasting inclusions. The major use of this
soil is livestock grazing. This soil consists of somewhat excessively drained soils with
slow permeability. It is rated 6e without irrigation and is not rated with irrigation. This
soil type accounts for approximately 45% of the subject property and is not considered
high value soil.
Unit 52B, Gardone sand, 0 to 5 percent slopes: This soil is composed of 85% Gardone
soil and similar inclusions and 15% contrasting inclusions. The major use of this soil is
livestock grazing. This soil consists of excessively drained soils with rapid permeability.
It is rated 6e without irrigation and is not rated with irrigation. This soil type accounts for
approximately 25% of the subject property and is not considered high value soil.
Unit 54C, Gardone, moist, 3 to 20 percent slopes: This soil is composed of 85%
Gardone soil and similar inclusions and 15% contrasting inclusions. The major use of this
soil is livestock grazing. This soil consists of excessively drained soils with moderate
permeability. It is rated 6e without irrigation and is not rated with irrigation. This soil
type accounts for approximately 20% of the subject property and is not considered high
value soil.
Unit 134D, Stookmoor gravelly loamy sand, 20 to 50 percent north slopes: This soil
is composed of 85% Stookmoor soil and similar inclusions and 15% contrasting
inclusions. The major use of this soil is livestock grazing. It consists of somewhat
excessively drained soils with moderately slow permeability. It is rated 6e without
irrigation and is not rated with irrigation. This soil type accounts for approximately 10%
of the subject property and is not considered high value soil.
E. Surrounding Zoning and Land Uses: The subject property is located in the middle of a
vast shrub-steppe region east of Horse Ridge that extends to the eastern and southern
boundaries of Deschutes County, much of which is in public ownership. Abutting land to
the north, west and south of the subject property consists of part of a 36,621-acre public
rangeland holding managed by the BLM. According to the BLM’s Upper Deschutes
Resource Management Plan this area is considered to be within a non-motorized
recreational use area, Horse Ridge Grazing Allotment, and Primary Wildlife Emphasis
Area. Land further to the northwest is owned by the Sundance Meadows Property
Owners’ Association. Land further to the southwest is zoned for forest use and is owned
and managed by the USFS. Abutting land to the east is owned by the applicants, zoned
EFU-HR, and engaged in farm use consisting of livestock grazing on dry rangeland.
F. Procedural History: This application was submitted on September 25, 2007 and was
accepted by the county as complete on October 25, 2007. Therefore, the 150-day period
under ORS 215.427 for issuance of a final local land use decision would have expired on
March 24, 2008. A public hearing on the applicant’s proposal was held on November 13,
2007. At the hearing, the Hearings Officer received testimony and evidence, left the
written evidentiary record open through December 14, 2007, and allowed the applicants
through December 21, 2007 to submit final argument pursuant to ORS 197.763. Because
the applicants agreed to extend the record from November 13 through December 21,
Nash
CU-07-93
Page 4 of 33
2007, under Section 22.24.140 the 150-day period was tolled for 38 days and now expires
on May 1, 2008. As of the date of this decision there remain 55 days in the 150-day
period.
G. Proposal: The applicants’ application and burden of proof state they are requesting
conditional use approval to establish a nonfarm dwelling on the subject property. The
applicants’ submitted plot plan drawing shows the proposed dwelling would be located in
the southeast corner of the subject property on the east side of and within 300 feet of Ford
Road, would have access from Ford Road, would receive domestic water from an
individual on-site well and would receive sewage disposal from an individual on-site
septic system. However, the text of the applicants’ burden of proof states they also seek
approval of a wildlife conservation plan dwelling and addresses the approval criteria for
such dwellings. Neither the public notices of the applicants’ proposal nor the staff report
identified or addressed the approval criteria for a wildlife conservation plan dwelling.
Therefore, the Hearings Officer finds that proposal is not before me in this proceeding.
However, the Hearings Officer has addressed those criteria in the findings below in the
event the applicants appeal this decision to the Deschutes County Board of
Commissioners (board).
H. Public/Private Agency Comments: The Planning Division sent notice of the applicants’
proposal to a number of pubic and private agencies and received responses from: the
Deschutes County Road Department (road department), Property Address Coordinator,
Assessor, Building Division and Environmental Health Division; the Oregon Department
of Fish and Wildlife (ODFW); the Oregon Department of Water Resources, Watermaster-
District 11; and the BLM. These comments are set forth verbatim at page 3 of the staff
report and/or are included in the record.
I. Public Notice and Comments: The Planning Division mailed individual written notice
of the applicants’ proposal and the public hearing to the owners 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 13 letters including 9 form letters in response to these notices.
Two members of the public testified at the public hearing.
J. Lot of Record: The staff report states the county recognizes the subject property as a
legal lot of record on the basis of a 2007 lot-of-record determination (LR-07-20).
Opponent Ed Dorsett argues this lot-of-record determination did not include the subject
property. The Hearings Officer disagrees. The determination states Tax Lot 1400
includes two legal lots, and the legal lot description for what is called Parcel 1 is the
southwest quarter of Section 19, Township 19, Range 14 East, which is Tax Lot 1401 and
the subject property.
III. CONCLUSIONS OF LAW:
A. SUMMARY:
Nash
CU-07-93
Page 5 of 33
The applicants have requested conditional use approval to establish a nonfarm dwelling on the
subject property which is a part of their large Evans Wells Ranch cattle operation located in the
Millican area. The Hearings Officer has found the proposed dwelling will satisfy the applicable
WA Zone requirements because it would be located within 300 feet of Ford Road. I also have
found approval of the proposed dwelling will not destabilize the surrounding agricultural area
because it will not set a precedent for the wholesale approval of nonfarm dwellings in the
surrounding area to the detriment of existing agriculture in the area. However, I have found the
applicants failed to demonstrate the subject property is generally unsuitable for the production of
livestock when considered in conjunction with the applicants’ existing cattle operation on
abutting and nearby lands, and therefore I cannot approve the applicants’ proposal. Finally,
because I anticipate this decision may be appealed to the board, I have included recommended
conditions of approval in the event the board approves the applicants’ proposal on appeal.
EFU ZONE STANDARDS
B. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.16, Exclusive Farm Use Zones
a. Section 18.16.030, Conditional Uses Permitted - High Value and Non-
high Value Farmland
* * *
C. Nonfarm dwelling and accessory uses thereto.
* * *
G. A dwelling in conjunction with a wildlife habitat and
conservation and management plan.
FINDINGS: The applicants request conditional use approval to establish on the subject property
a nonfarm dwelling under Section 18.16.050(G). In addition, as discussed in the Findings of Fact
above, the text of the applicants’ burden of proof states they also request approval of a wildlife
conservation plan dwelling under Section 18.16.050(I). Both of these uses permitted
conditionally in the EFU-HR Zone. However, because neither the public notices of the
applicants’ proposal nor the staff report identified or addressed the proposed wildlife
conservation plan dwelling, the Hearings Officer has found that application is not properly
before me in this proceeding. Nevertheless, because I anticipate this decision may be appealed to
the board, I address the wildlife conservation plan dwelling approval criteria in the findings
following the nonfarm dwelling findings.
b. Section 18.16.050, Standards for Dwellings in the EFU Zones
Dwellings listed in DCC 18.16.025 and 18.16.030 may be allowed under
the conditions set forth below for each kind of dwelling, and all
dwellings are subject to the landowner for the property upon which the
Nash
CU-07-93
Page 6 of 33
dwelling is placed, signing and recording in the deed records for the
County, a document binding the landowner, and the landowner’s
successors in interest, prohibiting them from pursuing a claim for relief
or cause of action alleging injury from farming or forest practices for
which no action or claim is allowed under ORS 30.396 or 30.397.
FINDINGS: The Hearings Officer finds that if the applicants’ proposal is approved by the board
on appeal, such approval should be subject to a condition of approval requiring the applicants to
execute and record the waiver required in this section.
NONFARM DWELLING APPROVAL CRITERIA
G. Nonfarm Dwelling
1. One single-family dwelling, including a manufactured
home in accordance with section 18.116.070 of this title,
not provided in conjunction with farm use may be
permitted on an existing lot or parcel subject to the
following criteria:
a. The Planning Director or Hearings Body shall
make findings that:
i. The dwelling or activities associated with
the dwelling will not force a significant
change in or significantly increase the cost
of accepted farming practices, as defined
in ORS 215.203(2)(c), or accepted forest
practices on nearby lands devoted to farm
or forest use.
FINDINGS: The record indicates that some or all of fourteen EFU-zoned tax lots including the
subject property are located within a one-mile radius of the subject property. Five tax lots are in
private ownership, and three of those are owned by the applicants and two are receiving farm tax
deferral. The remaining two privately-owned parcels are owned by the Sundance Meadows
Property Owners’ Association and are not receiving farm tax deferral. None of the surrounding
parcels is irrigated. Only one privately-owned parcel in the study area – Tax Lot 1400 owned by
the applicants and abutting the subject property on the east -- has at least 320 acres, the minimum
lot size for a farm parcel in the EFU-HR Zone. The record indicates there are no forest uses on
adjacent lands.
The record indicates the typical farm practices in the study area are livestock grazing on dry open
rangeland. Because of the lack of irrigation water and the generally poor soil quality in the
surrounding area there is no crop cultivation or hay production. According to information in the
record from the Oregon State University (OSU) Extension Service, the types of impacts that
could be anticipated from dry rangeland livestock grazing would include dust, manure odor,
possible interference with vehicular traffic, and property damage if livestock trespass. The record
Nash
CU-07-93
Page 7 of 33
indicates the subject property and surrounding area consist of open range, and therefore livestock
may graze wherever they want, and property owners are required to fence their property to
exclude grazing cattle.
The staff report states that because there is minimal farm use occurring on adjacent parcels, the
presence of the proposed nonfarm dwelling would not force a significant change in, nor
significantly increase the cost of, accepted farming practices occurring on nearby lands.
Opponent Central Oregon LandWatch (LandWatch) argues, and the Hearings Officer agrees, that
because farm use in the surrounding area consists of rangeland grazing it is not necessarily
“minimal.” Nevertheless, I find the type of agriculture in the surrounding area is of very low
intensity given the large parcel size and the lack of available forage for livestock, factors that
severely limit the number of livestock per acre. As discussed in the findings above, the
applicants’ ranch runs only 250 head of cattle on 2,200 hundred deeded acres and 60,000 acres of
public land grazing allotments. I find that as a general proposition, the less intensive the
agricultural use, the less likely there would be conflicts between agricultural and non-agricultural
uses such as nonfarm dwellings.
Relying on a November 12, 2007 letter in the record from Stephen Roth, former owner of a
ranch in the Millican area, LandWatch argues the applicant’s proposed dwelling would bring
with it the types of human activities that cause stress to livestock and interfere with grazing --
e.g., domestic dogs chasing and injuring or killing livestock, vehicle/livestock collisions, and
people harming livestock by shooting them during hunting season, leaving gates open or closed,
and damaging fences and water troughs. However, LandWatch doesn’t acknowledge that Mr.
Roth’s letter expressed concern about these activities in relation to a proposed private paintball
park the Hearings Officer recently approved on land north of the subject property (Dorsett, CU-
07-79) and not in relation to the applicants’ proposed nonfarm dwelling. In fact, Mr. Roth stated
he supports the applicants’ proposal because, based on his ranching experience, he believes it
would encourage economically viable farms and ranches by allowing legal, on-site property
owners to live in the area who could prevent or discourage the type of damage to livestock
operations caused by “itinerant recreationists” and squatters. In other words, Mr. Roth shares the
applicants’ view that the unique type of agriculture in the EFU-HR Subzone -- characterized by
livestock grazing on very large, dry, remote parcels -- actually would benefit from the presence
of legal, permanent dwellings occupied by residents who could reduce conflicts with non-
ranching activities.
Based on the above findings, the Hearings Officer is persuaded that the applicants’ proposed
nonfarm dwelling would not force a significant change in or significantly increase the cost of
accepted farming or forest practices on nearby lands devoted to farm or forest use.
ii. The proposed nonfarm dwelling does not
materially alter the stability of the overall
land use pattern of the area. In
determining whether a proposed nonfarm
dwelling will alter the stability of the land
use pattern in the area, the county shall
consider the cumulative impact of
nonfarm dwellings on other lots or
Nash
CU-07-93
Page 8 of 33
parcels in the area similarly situated and
whether creation of the parcel will lead to
creation of other nonfarm parcels, to the
detriment of agriculture in the area.
FINDINGS: OAR 660-033-130(4)(a)(D) establishes the analysis required to determine
compliance with this “stability” standard as follows:
(D) The dwelling will not materially alter the stability of the overall land use
pattern of the area. In determining whether a proposed nonfarm dwelling
will alter the stability of the land use pattern in the area, a county shall
consider the cumulative impact of possible new nonfarm dwellings and
parcels on other lots or parcels in the area similarly situated. To address this
standard, the county shall:
(i) Identify a study area for the cumulative impacts analysis. The study
area shall include at least 2000 acres or a smaller area not less than
1000 acres, if the smaller area is a distinct agricultural area based on
topography, soil types, land use pattern, or the type of farm or ranch
operations or practices that distinguish it from other, adjacent
agricultural areas. Findings shall describe the study area, its
boundaries, the location of the subject parcel within this area, why
the selected area is representative of the land use pattern surrounding
the subject parcel and is adequate to conduct the analysis required by
this standard. Lands zoned for rural residential or other urban or
nonresource uses shall not be included in the study area;
(ii) Identify within the study area the broad types of farm uses (irrigated
or nonirrigated crops, pasture or grazing lands), the number, location
and type of existing dwellings (farm, nonfarm, hardship, etc.), and the
dwelling development trends since 1993. Determine the potential
number of nonfarm/lot of record dwellings that could be approved
under subsections (3)(a), (3)(d) and section 4 of this rule, including
identification of predominant soil classifications, the parcels created
prior to January 1, 1993, and the parcels larger than the minimum lot
size that may be divided to create new parcels for nonfarm dwellings
under ORS 215.263(4). The findings shall describe the existing land
use pattern of the study area including the distribution and
arrangement of existing uses and the land use pattern that could
result from approval of the possible nonfarm dwellings under this
subparagraph;
(iii) Determine whether approval of the proposed nonfarm/lot of record
dwellings together with existing nonfarm dwellings will materially
alter the stability of the land use pattern in the area. The stability of
the land use pattern will be materially altered if the cumulative effect
of existing and potential nonfarm dwellings will make it more
Nash
CU-07-93
Page 9 of 33
difficult for the existing types of farms in the area to continue
operation due to diminished opportunities to expand, purchase or
lease farmland, acquire water rights or diminish the number of tracts
or acreage in farm use in a manner that will destabilize the overall
character of the study area;
The Hearings Officer finds the analysis required by this rule includes nine separate components
concerning the study area, each of which is discussed separately in the findings below.
1. Size and Adequacy of Study Area. The county typically uses a study area consisting of all
EFU-zoned tax lots located entirely or partly within a one-mile radius of the subject property’s
boundaries and including approximately 2,000 acres. The record includes six computer-
generated maps showing the study area and including the following information derived from
Assessor’s data: a) tax lot numbers; b) tax lot sizes; c) zoning; d) soil types; e) irrigated acres; f)
tax-deferred status; g) year built for existing dwellings; and h) dwelling conditional use permits
issued since 1982. These maps show that the vast majority of the study area is zoned EFU, but
that most of the land in the study area is owned and managed by the BLM and is part of public
rangeland east of Horse Ridge that exceeds 35,000 acres in size. The maps show the five
privately-owned tax lots in the study area range in size from 80 to 640 acres, and none is
irrigated or developed with a dwelling. The maps show the only tax lots receiving farm tax
deferral are the abutting Tax Lot 1400 on the east and Tax Lot 2400 partially located in the
southeast quadrant of the study area. Both of these tax lots are owned by the applicants.
Because of the large size and small number of parcels within the study area, both staff and
LandWatch have questioned whether the one-mile radius study area is adequate to perform the
required agricultural analysis. The administrative rule requires the study area to have at least
2000 acres and “be representative of the land use pattern surrounding the subject parcel.” The
staff report notes, and the Hearings Officer concurs, that considering the total acreage of the
parcels located entirely or partially within the study area is approximately 38,000 acres, far
exceeding the minimum size required by the administrative rule. The issue is whether this area is
“representative.”
The record does not indicate what type of agricultural activity is occurring outside the one-mile
radius of the subject property. However, in previous decisions involving land in the EFU-HR
Subzone located east and north of the subject property, the Hearings Officer has described the
surrounding area as consisting predominantly of large unirrigated parcels in public and private
ownership and without dwellings, and with cattle grazing as the only form of agriculture
occurring both on private lands and on public land grazing allotments. I also have noted the
presence of numerous small, unrecorded subdivision lots in parts of the Millican Valley. E.g.,
Dorsett, Bend Trap Club (MA-07-12, CU-07-63, SP-07-32), Terrill (CU-05-15), Russell (CU-
95-94). In light of the large number of acres actually included in the study area for the subject
property, and the surrounding area descriptions in these decisions, I find the study area is
representative of the type of agriculture and land use patterns in EFU-HR Subzone in general,
and the area surrounding the subject property in particular, and therefore it is adequate to
perform the analysis required by the administrative rule.
2. Types of Farm Uses. The record indicates the farm use in the surrounding area consists of
Nash
CU-07-93
Page 10 of 33
livestock grazing on both public and private dry rangeland. The record does not indicate how
many of the over 35,000 acres of BLM rangeland located entirely or partially within the study
area is subject to grazing allotments. The computer-generated maps show the study area is not
located within an irrigation district and consists of soil types that have very low NRCS capability
ratings and are not considered high value soil. Only two of the five privately-owned parcels in
the study area are receiving farm tax deferral – the abutting Tax Lot 1400 and Tax Lot 2400
located partially in the southeast quadrant of the study area – and both are owned by the
applicants. However, the applicants’ burden of proof states the abutting privately-owned tax lots
to the west of the subject property historically have been used for grazing.
3. Existing Dwellings. The computer-generated map labeled "EFU Analysis – Year Built" in the
record indicates no privately-owned tax lots in the study area have dwellings. The record
indicates the nearest dwelling is located approximately three miles east of the subject property.
4. Dwelling Development Trends Since 1993. As discussed above, the computer-generated
maps in the record indicate there are no dwellings in the study area.
5. Potential Nonfarm Parcels. Based on the Assessor’s data in the record, the Hearings Officer
finds that all five existing privately-owned tax lots are vacant and therefore have the potential to
be developed with a nonfarm dwelling. However, it is not clear from this record whether the four
privately-owned tax lots other than the subject property would meet the approval criteria for
nonfarm parcels considering minimum road frontage and other requirements.
The 2001 Legislative Assembly passed HB 3326, incorporated into Title 18 in Section
18.16.055. The bill authorized two types of land divisions in the EFU Zone -- an “irrigated land
division” and a “non-irrigated land division.” Under ORS 215.263(5), these land divisions are
available for parcels that were lawfully created before July 1, 2001.
a. Irrigated Land Divisions.
Under the provisions for an irrigated land division, an applicant may create from a parent parcel
under 80 acres in size in the EFU-TE Subzone: a) one parcel of any size for a nonfarm dwelling
and a remainder farm parcel that meets the minimum lot size of at least 35 irrigated acres. If the
parent parcel is larger than 80 acres in size and has at least 35 irrigated acres, an applicant may
create up to two nonfarm parcels of any size with a remainder farm parcel that has at least 35
irrigated acres. The nonfarm parcels also must be generally unsuitable for the production of farm
crops and livestock. The record indicates none of the privately-owned tax lots in the study area
has irrigation, and therefore none would qualify for an irrigated land division under sections
18.16.055 and 18.16.065 of Title 18.
b. Non-irrigated Land Divisions.
Under the provisions for non-irrigated land divisions, an applicant may create one nonfarm
parcel five acres in size and one remainder farm parcel from a parent parcel that is between 40
and 80 acres in size and has no irrigation. The nonfarm parcel must be composed of at least 90
percent Class VII and VIII soils and not be irrigated. If the parent parcel is larger than 80 acres in
size, the applicant may create up to two nonfarm parcels each five acres in size. The nonfarm
Nash
CU-07-93
Page 11 of 33
parcels must be generally unsuitable for the production of farm crops and livestock. In other
words, the minimum lot size for a parcel to qualify for a nonirrigated land division is 40 acres,
and no new nonfarm parcel may be less than five acres in size. Under these provisions, only one
type of land division is allowed in the EFU-HR Subzone -- a farm division with a minimum
parcel size of 320 acres. The record indicates there is only one privately-owned parcel in the
study area that has 640 acres – Tax Lot 2400 owned by the applicants and located southeast of
the subject property -- and therefore only one tax lot would qualify for a non-irrigated land
division creating one additional parcel.
6. Potential Nonfarm Dwellings. The "stability standard" requires the county to determine the
"cumulative impact of nonfarm dwellings on other parcels in the area similarly situated." The
phrase "similarly situated" is not defined in the administrative rules although it has been used in
several LUBA cases. In Blosser v. Yamhill County, 18 Or LUBA 253, 262 (1989), LUBA
quoted with approval language in the county's decision describing "similarly situated" parcels as
those in the "same category of developability." There, the county considered "similarly situated"
parcels to be those vacant parcels in the study area that were the same size or smaller than the
parcel in question and concluded approval of the proposed nonfarm dwelling could encourage
nonfarm dwelling applications on the identified "similarly situated" parcels. In previous
decisions, this Hearings Officer also considered soils and irrigation in determining whether a
parcel proposed for a nonfarm dwelling is "similarly situated" to other parcels in the study area
for purposes of the "stability standard."
Theoretically, if the five existing vacant tax lots and one new lot potentially created through a
non-irrigated land division were approved for nonfarm dwellings there could be 6 additional
nonfarm dwellings in the study area. However, to be “similarly situated” to the subject property,
the tax lots would have to be 160 acres or smaller, have no irrigation and have similar nonhigh
value soils. Only one of the existing privately-owned tax lots – Tax Lot 1300 on Assessor’s Map
19-14 -- is "similarly situated" to the subject property. And the staff report correctly notes that
because each nonfarm dwelling application must be reviewed on its own merits, without a site-
specific evaluation of Tax Lot 1300 it is not possible to determine if this tax lot could be
approved for a nonfarm dwelling. The applicant argues that because Tax Lot 1300 is owned by
the Sundance Meadows Homeowners Association and is an open space lot for the Sundance
Meadows Subdivision, it is not eligible for development of any kind. That may well be the case,
but in the absence of evidence in this record concerning what limitations, if any, apply to Tax
Lot 1300 under the subdivision plat or covenants, the Hearings Officer must assume for purposes
of this analysis that Tax Lot 1300 could be developed with a nonfarm dwelling if the subject
property is approved for a nonfarm dwelling. Consequently if the applicants’ proposed nonfarm
dwelling were approved it could set a precedent for the approval of a nonfarm dwelling on Tax
Lot 1300.
As discussed in the findings above, the record indicates, and the Hearings Officer is aware, that
there are many substandard-sized lots in unrecorded subdivisions in the Millican area and the
EFU-HR Subzone on which “squatters” may be living without benefit of land use, building or
septic permits. I share the concerns of planning staff, LandWatch and public agencies about
potential impacts from development of these lots with dwellings. However, I find these lots are
not “similarly situated” to the subject property. In the first place, it is far from clear these lots
would be considered legal lots eligible for development, and many of them may not have road
Nash
CU-07-93
Page 12 of 33
frontage or access. Moreover, the owners of these small lots would face a daunting task of
satisfying the nonfarm dwelling “stability” standard where approval of a dwelling on one of
these lots truly would open the proverbial floodgates of nonfarm development on other
substandard lots. For these reasons, I find approval of the applicants’ proposal would not set a
precedent for nonfarm dwellings on these unrecorded subdivision lots.
7. Potential Lot of Record Dwellings. Under Section 18.16.050(E) and OAR 660-033-130(3),
a lot-of-record dwelling may be sited on an EFU-zoned parcel on nonhigh value farmland if the
parcel was created and acquired by the current owner prior to January 1, 1985, has continuously
been owned by the present owner since then, and if the lot or parcel on which the dwelling will
be sited was part of a tract on November 4, 1993, no dwelling exists on another lot or parcel that
was part of that tract. Under Section 18.16.050(F) and OAR 660-033-130(3)(c), a lot-of-record
dwelling may be sited on high value farmland if it meets the criteria for a lot-of-record dwelling
on nonhigh value farmland and the Planning Director or Hearings Body finds the parcel cannot
practically be managed for farm use "due to extraordinary circumstances inherent in the land or
its physical setting," such as "very steep slopes, deep ravines ... or other similar natural or
physical barriers."
In the absence of a lot-of-record analysis on each existing vacant tax lot, it is not possible to
determine how many additional lot-of-record dwellings could be sited on tax lots in the study
area. For this reason the county historically has evaluated the potential for lot-of-record
dwellings on tax lots in the study area based upon the same factors reviewed for potential
nonfarm dwellings – i.e., location, size, soil classification and irrigated acreage. However, in the
Hearings Officer's previous nonfarm dwelling decision in Balcom (CU-99-82), I found that only
a small number of tax lots are likely to qualify for lot-of-record dwellings because of the creation
and ownership requirements and because of the "extraordinary circumstances" approval criterion.
Staff adheres to that analysis and finds that few if any of the tax lots in the study area identified
as potential nonfarm parcels are likely to qualify for a lot-of-record dwelling because of the very
stringent approval criteria for such dwellings. I adhere to that holding here.
8. Stability and Character of the Land Use Pattern of the Area. Based upon the above
findings, the Hearings Officer finds the land use pattern and character of the study area is
predominantly large public and private dry rangeland parcels without dwellings, with livestock
grazing as the predominant agricultural activity, and with some recreational use. The staff report
states, and I agree, that due to the extensive public ownership in the study area and the
difficulties inherent in living and conducting agricultural activities in this part of the county, this
land use pattern has been quite stable over time, with some increase in recreational activities.
9. Effect on Stability from Proposed Nonfarm Dwelling. The Hearings Officer finds the
“stability” analysis focuses on what would be the cumulative impact on the stability of the land
use pattern in the study area from approving the proposed nonfarm dwelling. In other words, it
asks whether approval of the proposed nonfarm dwelling would “materially alter the stability of
the overall land use pattern in the area” by setting a precedent for approval of additional nonfarm
dwellings, thereby driving up the price of land and making it more difficult for the existing farms
to continue to operate due to diminished opportunities to expand, purchase or lease farmland and
acquire water rights.
Nash
CU-07-93
Page 13 of 33
As discussed above, the subject property is located in the middle of a vast shrub-steppe region
dominating the eastern part of Deschutes County, the majority of which is in public ownership
and managed by the BLM for multiple uses including livestock grazing on grazing allotments,
recreational uses and wildlife habitat. The majority of the land in the study area never has been
cultivated or irrigated, has no irrigation, and has poor quality soils. As discussed above, the
Hearings Officer has found only one of the existing privately-owned tax lots in the study area is
"similarly situated" to the subject property in terms of size, lack of irrigation and poor soil. For
these reasons, I find approval of the proposed nonfarm dwelling on the subject property could set
a precedent for approval of a nonfarm dwelling on only one other tax lot in the study area.
The Hearings Officer is aware of only two nonfarm dwelling applications in the Millican area
that have been considered in the last 15 years. The first case was Russell (CU-95-94) in which I
was asked to approve a nonfarm dwelling on a 40-acre parcel. In denying the application, I made
the following findings:
"The Hearings Officer concurs with staff that the Millican area presents a unique
set of circumstances which could produce a number of additional nonfarm
dwelling applications, given the relatively large number of small legal parcels
and the generally poor soil and limited agricultural capability of the land.
However, there are other unique circumstances in this area which may in fact
discourage such nonfarm dwelling applications. The public hearing testimony of
the applicant and residents of neighboring parcels pointed out that the Millican
area is a remote and rather desolate area with few services, making it less
attractive than other areas in Deschutes County for most people looking for a
rural residence.
Nevertheless, it does appear that Deschutes County has previously articulated a
policy decision to prohibit further nonfarm residential development in the
Millican area based upon the potential precedent and the cumulative impacts of a
number of such dwellings on the agricultural operations in the area. The record
contains a copy of the Board of County Commissioners' Findings and Decision in
CU-92-169, denying the nonfarm dwelling application of Wayne and Irma Best on
a 10-acre parcel approximately 3 1/2 miles west of the subject property. In
concluding that the dwelling proposed by the Bests should not be allowed, the
Board's decisions states:
‘The Board finds that the overall land use pattern of the area of
review is resource lands, primarily as antelope range, sage grouse
range and open grazing for cattle. For this reason, the Board finds
that the proposed nonfarm dwelling would constitute the
introduction of an incompatible use to an area where now none
exist. Approval of the proposed dwelling could serve to set a
precedent for future nonfarm dwellings and, thus, tip the balance
from resource to non-resource use. Therefore, the Board finds that
approval of this nonfarm dwelling would alter the stability of the
overall land use pattern of the area by increasing density and
causing compatibility problems, as well as set a precedent for
Nash
CU-07-93
Page 14 of 33
similarly situated parcels.'
The record indicates, and the Hearings Officer is aware, that prior to the Board's
decision in the Best case, another county hearings officer had approved a
nonfarm dwelling for Earl Conyers (CU-92-90) on a 40-acre parcel located very
close to the subject property. However, the record indicates that between the
Conyers approval and the Best denial, the county entered into an agreement to
avoid a threatened enforcement order from the Land Conservation and
Development Commission (LCDC) concerning the county's review and approval
of farm- and nonfarm dwellings in EFU Zones. That agreement required the
Board to review all such dwelling applications and to more strictly interpret and
apply the approval criteria. The Hearings Officer is aware that the result of that
agreement and the review required by it was the development of county policy
and practice making it more difficult to obtain conditional use permits for
dwellings in farm zones – particularly for nonfarm dwellings.
Although the Board's Findings and Decision in the Best case do not explicitly
state a policy against further nonfarm dwelling approvals in the Millican area,
the Hearings Officer finds that in the context in which that decision was rendered
it had that effect. In other words, the Hearings Officer finds that the county has –
through the Best decision – established a policy that any nonfarm dwelling
application in the Millican area will not meet the approval criteria because such
approval would force a significant change in or significantly increase the cost of
accepted farming practices' in the area because of the precedent such an
approval is perceived to set for the area. The changes and increases in cost
perceived to be created by the approval of additional nonfarm dwellings in the
Millican area result from: I) the addition of residential uses that are potentially
incompatible with open range livestock grazing and its impacts as defined by
OSU above; and 2) increased costs from the reduction of available land for
livestock production and the resulting inflation of agricultural land values due to
their conversion to higher-value non-agricultural uses.
Based on the foregoing, the Hearings Officer finds that the proposed dwelling
does not meet the approval criterion in Section 18.16.050(G)(a)(i). The Hearings
Officer further finds that if I have misinterpreted the intent or effect of the Board's
decision in the Best case, the Board can clarify its intent by calling up this
decision for review."
The second case was Terrill (CU-05-15), in which the Hearings Officer was asked to approve a
nonfarm dwelling on another 40-acre parcel. After quoting from my Russell decision, I made the
following findings:
The Hearings Officer is aware that the Board of County Commissioners did not
review the Best decision, and therefore the policy it articulated apparently
remains in force. However, twelve years have passed since the Best decision was
issued, and nearly ten years that have passed since I issued the Russell decision,
and the Board may be interested in reviewing this policy. Nevertheless, for the
Nash
CU-07-93
Page 15 of 33
foregoing reasons, I find approval of the proposed nonfarm dwelling will set the
very sort of precedent and potentially create the cumulative effects to which this
approval criterion was addressed. Therefore, I find approval of the applicant’s
proposal would ‘materially alter the stability of the land use pattern in the area’
by making it more difficult for the existing farms to continue operation due to
diminished opportunities to expand, purchase or lease farmland, acquire water
rights or by diminishing the number of tracts or acreage in farm use.”
The applicants argue the Hearings Officer should use this application to re-examine the county’s
policy described in the Best, Russell and Terrill decisions. The applicants argue, and I agree, that
application of this policy in place of conducting a site- and fact-specific analysis would violate
the administrative rule’s required analysis. The applicants also argue the policy should be
reconsidered for the following reasons:
“While Deschutes County has previously articulated a policy decision to prohibit
further non-farm residential development in the Millican area this policy dates
back to 1985. Applicant believes that the nature of agriculture in the area, land
values generally and technological improvements combine to create the need for
a reevaluation of the County’s historical denial of nonfarm dwellings in the Horse
Ridge Ease Subzone. It should be noted that the Code already expressly prohibits
the creation of new nonfarm parcels. Historically, potatoes and cattle have been
grown/raised in the Horse Ridge Subzone. However, the lack of irrigation water,
combined with ever increasing mean temperatures and decreasing precipitation
have made the area ever less hospitable to agricultural uses. Simultaneously, land
values in Deschutes County have increased significantly during the same period.
These facts combine to create a situation where it is no longer profitable to
purchase land solely for the purpose of grazing cattle. The cost of recreational
land (land for which building permits cannot be obtained) is generally in excess
of $1000/acre. Given that estimates put the forage production at approximately
150 acres per AUM [animal unit month], even at twice this amount the forage
provided by the subject property is grossly deficient to produce an adequate
return on investment. Finally, the distance to power lines has made development
infeasible in the past. With technological advances and the increased desire to
minimize one’s carbon footprint, the availability and attractiveness of a solar
powered home and well now exist. Thus, applicant believes that an analysis
strictly based upon the historic patterns of the area is misleading because the
feasibility and economics of the area have been fundamentally altered over time.
Thus, the balance from resource to non-resource use has already been tipped. The
potential of nonfarms would help create a buffer between lands devoted to wildlife
grazing and those frequented by off-road vehicles. Furthermore, the WA [Zone]
requires that the entire footprint of the proposed dwellings be within 300 feet of a
road existing in 1992. Given this the proximity to roadways the homes are more
likely to provide a buffer between road noise and dust and grazing or nesting
animals than they are to increase disturbance in the area. To allow nonfarm
dwellings in the more productive parts of the county while precluding them in
what is well accepted as the least productive lands ignores the economic and
practical realities of present-day Deschutes County. The proposed home site on
Nash
CU-07-93
Page 16 of 33
the subject property is placed in a location that is removed from the property
boundaries. This location will provide a generous buffer for surrounding uses.
* * *
The quoted approval criteria makes it clear that changes in the area are grounds
for denial only where the changes occur ‘to the detriment of agriculture in the
area.’ Since applicant found no agriculture in the subject area and therefore the
existence of dwellings will not impact this lack of agriculture. Applicant further
believes that the proposed dwelling will not impact ranching in the area as the
County Code precludes the creation of new nonfarm parcels in the area and one
dwelling near an existing roadway (particularly when applicant will be required
to sign a waiver of remonstrance) will not hinder ranching on neighboring
properties.” (Emphasis added.)
In its November 29, 2007 submission, LandWatch responded that:
“The threat to the stability of this area is even more real than it was in 1995 when
the Hearings Officer noted in the Russell application (CU-95-94) that there was
testimony that the Millican area is a ‘remote and rather desolate area with few
services, making it less attractive than other areas in Deschutes County for most
people looking for a rural residence.’ With the explosive population growth that
has occurred since 1995, these more remote areas are becoming more and more
attractive to people. This would only increase the risk to the stability of the area.”
(Emphasis added.)
In a November 30, 2007 letter, Molly Brown, Deschutes Resource Area Field Manager for the
Prineville BLM District, discussed the BLM’s management of the Millican area for multiple uses
including grazing, recreation and wildlife habitat, and stated the BLM supports the county’s
policy not to approve additional nonfarm dwellings in the Millican area because the addition of
such dwellings “could conflict with the existing character and management objectives of
adjacent lands.” Ms. Brown stated a change in that policy could “substantially impact BLM
mandated responsibilities to provide for recreation, access, wildlife habitat, and grazing.” With
respect to ongoing grazing operations in particular, Ms. Brown stated:
“The Prineville District Office administers several grazing permits located in
Central Oregon’s urban interface areas. In these areas, non-rural living
intertwines with a traditional ranching way of life. Often times these two worlds
are literally across the fence from each other; a new subdivision on one side,
traditional grazing on the other. Consequently, the allotments that fall into the
urban interface zone have a unique set of problems that aren’t present in
allotments in the rest of the District.
In these urban interface areas, with an increase in the number of non-rural
residents, the ranching community must cope with an increase in the number of
cut fences, grazing gates left open, dumping of trash, harassment of livestock, and
the creation of additional routes (roads and trails). Ranchers in these areas also
report the dumping and burning of abandoned vehicles, theft of metal fence posts,
Nash
CU-07-93
Page 17 of 33
and the presence of meth labs. In fact, several of the grazing permits in Central
Oregon have already been abandoned as a direct result of these types of
increasing urban growth, and the issues that come along with it. There is a point
at which it becomes too difficult to continue ranching in this setting. Without
preservation of continuous, open expanses of economically viable rangeland,
fragmented patches of development will permanently change the rural
West.”(Emphasis added.)
The Hearings Officer finds there is no question increasing recreational use in the Millican area is
placing pressure on ranching on both public and private lands, and that introduction of the
subdivisions Ms. Brown fears would create serious conflicts with grazing and other uses for
which the BLM manages public lands under its control. However, the applicants are not
proposing a subdivision, and subdivisions are not permitted in the EFU-HR Zone. And as
discussed above, I have found approval of the applicants’ proposed nonfarm dwelling would not
set a precedent for approval of nonfarm dwellings on the numerous unrecorded subdivision lots
located in the Millican area because such lots are not “similarly situated” to the subject property.
The Hearings Officer finds the fundamental question is whether the addition of a nonfarm
dwelling on the 160-acre subject property would set a precedent for further nonfarm dwellings
such that it would tip the balance between resource and nonresource uses in the Millican area. I
find it would not. There is simply not substantial evidence in this record from which I can find
that the addition of the proposed dwelling on the 160-acre subject property – and one more on
Tax Lot 1300 -- would be detrimental to surrounding grazing operations on public and private
lands at all, let alone to the point where it would make ranching more difficult and/or expensive.
To the contrary, the evidence in the record – in particular the applicants’ burden of proof and
supplemental materials and Steven Roth’s letter -- strongly suggests that in the EFU-HR
Subzone the presence of a legal dwelling may in fact benefit the type of agriculture occurring in
the area by allowing residents of the dwelling to monitor activity in the area, thereby reducing
conflicts between the more transient population frequenting the Millican area and grazing
operations.
For the foregoing reasons, the Hearings Officer finds the applicants’ proposed nonfarm dwelling
will not materially alter the stability of the overall land use pattern of the area to the detriment of
agriculture in the area.
iii. The proposed nonfarm dwelling is
situated on an existing lot or parcel, or a
portion of a lot or parcel, that is generally
unsuitable for the production of farm
crops and livestock, or merchantable tree
species, considering the terrain, adverse
soil or land conditions, drainage and
flooding, vegetation, location and size of
the tract.
2. For the purposes of this subsection only, unsuitability
shall be determined with reference to the following:
Nash
CU-07-93
Page 18 of 33
a. A lot or parcel shall not be considered unsuitable
solely because of size or location if it can
reasonably be put to farm or forest use in
conjunction with other land. If the parcel is
under forest assessment, the dwelling shall be
situated upon generally unsuitable land for the
production of merchantable tree species
recognized by the Forest Practices Rules,
considering the terrain, adverse soil or land
conditions, drainage and flooding, vegetation,
location and size of the parcel.
b. A lot or parcel is not "generally unsuitable"
simply because it is too small to be farmed
profitably by itself. If a lot or parcel can be sold,
leased, rented or otherwise managed as part of a
commercial farm or ranch, it is not "generally
unsuitable.” A lot or parcel is presumed to be
suitable if it is composed predominantly of Class
I-VI soils. Just because a lot or parcel is
unsuitable for one farm use does not mean it is
not suitable for another farm use. If the parcel is
under forest assessment, the area is not
"generally unsuitable" simply because it is too
small to be managed for forest production
profitably by itself.
c. If a lot or parcel under forest assessment can be
sold, leased, rented or otherwise managed as a
part of a forestry operation, it is not "generally
unsuitable." If a lot or parcel is under forest
assessment, it is presumed suitable if it is
composed predominantly of soil capable of
producing 20 cubic feet of wood fiber per acre
per year. If a lot or parcel is under forest
assessment, to be found compatible and not
seriously interfere with forest uses on
surrounding land it must not force a significant
change in forest practices or significantly
increase the cost of those practices on the
surrounding land.
FINDINGS: As discussed in the findings above, the subject property is not irrigated and is
composed of soils rated by the NRCS as having very low agricultural capability with dry
rangeland grazing the only practical use of such soils. The computer-generated map in the record
labeled “Soils Map” shows the four soil types comprising the subject property are the
predominant soil types in the study area. The applicants’ submitted plot plan shows the proposed
Nash
CU-07-93
Page 19 of 33
nonfarm dwelling would be located in the southeast corner of the subject property on an elevated
area with scattered juniper trees on the east side and within 300 feet of Ford Road. The “Soils
Map” shows this area is comprised of Soil Unit 52B soils, described by the NRCS as having
livestock grazing as their major use because they are excessively drained with rapid permeability
and tendency toward erosion.
The staff report states, and the Hearings Officer concurs, that the question under these
circumstances is whether subject property can be considered generally unsuitable for the dry
rangeland livestock grazing occurring on public and private lands within the study area
considering soils, irrigation, and farm use in conjunction with surrounding properties engaged in
farm use.
1. Soils. As discussed in the Findings of Fact above, the NRCS data in the record indicate the
subject property is composed of Soil Units 19A, 54C, 103E, and 134D. The computer-generated
“Soils Map” in the record shows these soils are the predominant soils in the study area. The
NRCS data show all of these soil types are rated VIe without irrigation, have no rating with
irrigation, and are not considered high value soils. Where, as here, the soils on the subject
property have a capability rating of VI, they are presumed to be suitable for the production of
farm crops and livestock. However, in the Terrill decision, cited above, I found that presumption
could be overcome by evidence of the specific characteristics of the soil on the property. I found
in Terrill that the Soil Unit 17A soils on that property, rated Class VIs, were not suitable for the
production of crops or livestock because they were not irrigated, had very poor agricultural
capability, and had very little, if any, forage for livestock due to the sparse native shrub-steppe
vegetation. I find the soils on the subject property in general, and on the proposed homesite in
particular, are similarly unsuitable given their poor capability rating and very sparse forage as
documented on the aerial and ground-level photographs of the property included in the record.
2. Irrigation. As discussed in the findings above, the subject property is not located within an
irrigation district and is not irrigated, and none of the tax lots within the study area is irrigated.
3. Farm Use as a Single Production Unit. In the Hearings Officer’s previous decision in Mueller
(CU-07-8), I discussed the impact of the Oregon Supreme Court’s decision in Wetherell v.
Douglas County, 342 Or 666, 160 P2d 614 (2007) on application of the “generally unsuitable”
standard for nonfarm dwellings. In that case, the court was called upon to resolve a dispute
concerning the meaning of the term “farm use” as defined in ORS 215.20, Goal 3, and the
implementing administrative rules in OAR Chapter 660, Division 33, Agricultural Lands. After
an extensive analysis of the statutory and regulatory history, relevant case law, and applicable
definitions, the court held:
“* * * because Goal 3 provides that ‘farm use’ is defined by ORS 215.203, which
includes a definition of ‘farm use’ as ‘the current employment of the land for the
primary purpose of obtaining a profit in money[,]’ LCDC [Land Conservation
and Development Commission] may not preclude a local government making a
land use decision from considering ‘profitability’ or ‘gross farm income’ in
determining whether land is ‘agricultural land’ because it is ‘suitable for farm
use’ under Goal 3. Because OAR 660-033-0030(5) precludes such consideration,
it is invalid. [Footnote omitted.] * * * *.
Nash
CU-07-93
Page 20 of 33
Although profitability and gross farm income – both actual and potential – may
be considered in determining whether land is suitable for farm use, we do not
address the weight to be given to those considerations in any particular land use
decision. * * * The determination that a particular parcel of land is ‘agricultural
land’ turns instead on the local government’s conclusion, subject to review by
LUBA and the courts, that the land is ‘suitable for farm use,’ taking into
consideration the factors identified in Goal 3. The only issue that we decide today
is whether ‘profitability’ or ‘gross farm income’ can be considered by the local
government in making its land use decision, and our decision is limited to holding
that the rule prohibiting the local government even from considering such
evidence is invalid.”(Bold emphasis italicized in original.)”
The Hearings Officer found in Mueller that although the question presented in Wetherell was not
precisely the same question presented there:
“ * * * Wetherell clearly stands for the proposition that profitability and gross
income are appropriate factors to consider in determining whether a particular
parcel may be considered ‘agricultural land.’ Therefore, I agree with the
applicant that this holding should inform my consideration of whether the
proposed nonfarm dwelling homesite is ‘suitable’ for farm use – i.e., the
production of farm crops or livestock.”
I went on to find that considering OSU Extension Service data concerning beef production, there
would be minimal income potential from grazing livestock on a small parcel, and the cost of
clearing rocks and trees from a parcel to facilitate cultivation and irrigation would far exceed the
potential farm income.
The Hearings Officer adheres to my analysis in Mueller here. The staff report in this case
includes the following potential income calculation for the portion of the subject property
proposed for the nonfarm parcels and dwellings, based on SCS and OSU Extension Service data:
1. One AUM (animal unit month) is the equivalent to the forage required for a 1,000 pound
cow and calf to graze for 30 days, or 900 pounds of forage.
2. On good quality forage, an animal unit will gain two pounds per day.
3. Two animal units will eat as much in one month as one animal unit will eat in two
months.
4. Forage production on dry land is not continuous. Once available forage is eaten, it
generally will not grow back until the following spring.
5. The assumed average market price for beef is $0.80 per pound.
6. A weighted average of soil types on the subject property without irrigation produces one
AUM every 14.21 acres.
Based on these assumptions, the staff report includes the following beef production calculation
Nash
CU-07-93
Page 21 of 33
for the subject property:
1. 30 days X 2#/day/acre = 4.22 lbs. Beef/acre
(14.21 acres per AUM)
2. 4.22 lbs. Beef/acre X 160 acres X $0.80 /lb. = $540.46 annual beef production.
In other words, using SCS and OSU data and formulas, the applicants could expect to have a
gross income of only $540.46 per year – not taking into account livestock production costs such
as fencing, land preparation, purchase of livestock, veterinary expenses, and supplemental forage
to make up for the sparse native shrub-steppe vegetation.
The applicants’ burden of proof provides their own livestock production calculations, included in
an “assessment and analysis” of the subject property dated September 2007 and prepared by
Roger Borine. The record does not identify Mr. Borine’s background or qualifications. However,
the Hearings Officer is aware that Mr. Borine previously worked as a soil scientist for the NRCS.
Mr. Borine’s analysis states in pertinent part:
“Available Forage: It is estimated that this 160-acre parcel will produce
approximately 100 Animal Unite Months (AUM) of forage. Forage nutrition
would be highest in the late spring and early summer. A rotation grazing system
should be used. Since it is in the Deer Winter Range winter grazing should not
exist or be extremely limited in winter months.
Rental: The land could rent with an estimated annual income of approximately
$150. No improvements would be expected as the surrounding pastures have
existing fences and water for livestock. Depending upon the rotation system this
area may be grazed every other year or once every three years, thus reducing
income proportionally.
Production Unit. The 160 acres could be used as a single production unit.
Expected capital expenditures would include fencing ($5000/mile @ 2 miles =
$10,000), water development ($15,000 well/pump/tanks), transportation costs
(trucking livestock $1000/year), corrals ($2,000) and management ($3,000 per 3
months). Beginning a small operation on this parcel would require approximately
$27,000 in capital improvements and $4,000 per year in transportation and
management costs. Depending upon the class of livestock (cow/calf, steers)
expected income with market fluctuations is estimated to be “$250-$1000.”
The Hearings Officer notes note the perimeter fencing costs projected by Mr. Borine may not be
required inasmuch as the area surrounding the subject property is open range. Nevertheless, I
find staff’s and Mr. Borine’s calculations produce very similar gross income predictions for
livestock grazing on the subject property by itself. Under the reasoning in Wetherell cited above,
I find it is appropriate for me to consider the suitability of the subject property for farm use
taking into account livestock production costs. Where, as here, predicted production costs greatly
exceed predicted gross profits from livestock grazing on the subject property, I find the property
is generally unsuitable for the production of farm crops and livestock when operated as a single
Nash
CU-07-93
Page 22 of 33
farm use.
LandWatch argues:
“The very nature of cattle grazing is that it extends over broad acreages. It would
seldom be the case that a particular lot for a proposed non-farm dwelling would
be capable of sustaining a cattle operation. However, such a parcel may be
critical for a cattle operation in providing a winter grazing opportunity or some
other essential component to the overall grazing operation.”
The Hearings Officer agrees that where, as here, the EFU-HR Subzone has a minimum lot size of
320 acres, and the agricultural profile for the Horse Ridge Subzone in the county’s
comprehensive plan agricultural lands resource element indicates the median tract size is 2,100
acres, it is necessary and appropriate to evaluate the suitability of the subject property in the
context of its role in the applicants’ entire ranch tract.
4. Farm Use in Conjunction with Other Land. As discussed in the Findings of Fact above, the
record indicates the subject property is part of the applicants’ Evans Wells Ranch on which they
graze 250 head of cattle on 2,200 deeded acres and 60,000 acres of grazing allotments on public
land managed by the BLM and USFS. However, the record indicates the subject property is not
currently being utilized for grazing, although the applicants’ abutting Tax Lot 1400 to the east is
being grazed and is receiving farm tax deferral. The question, then, is whether the subject
property could be put to productive farm use in conjunction with the adjacent Tax Lot 1400
and/or the rest of the applicants’ cattle ranch.
In the Hearings Officer’s decision in Terrill, I made the following findings under this approval
criterion:
“* * * the subject property is surrounded by several other parcels with which the
property could be combined for a larger and potentially more productive grazing
operation. In fact, the applicant testified at the public hearing that he moves cattle
back and forth between the subject property and other property he owns or leases
in the Millican area, demonstrating that the subject property already is used in
combination with other parcels. For these reasons, I find the proposed nonfarm
dwelling would not be situated on an existing lot or parcel, or a portion of a lot or
parcel, that is generally unsuitable for the production of farm crops and livestock,
because it could be combined with other property and grazing operations in the
surrounding area.” (Emphasis added.)
In their November 29, 2007 submittal, the applicants essentially argue their situation is different
from the circumstances in Terrill for the following reasons:
“The subject property is the first sizeable ranch east of Bend; it is simply too
close to town and therefore experiences a disproportionate number of issues
relating to conflicting uses.
Reasons for Leaving
Nash
CU-07-93
Page 23 of 33
The instant proposal is the result of a need to move the Nash ranch further from
civilization. Higher hay prices have made a hay base a necessity. Non-contiguous
holdings which are topographically distinct and the necessity of using federal
leases combined to make an inefficient and frustrating ranch. Mr. Roth’s letter
eloquently addressed the difficulties associated with ranching in the area.
The Valley
* * *
The [Millican] Valley has gone from vacant to homesteaded and is now ripe for
yet another change. Everyone seems to agree that the soils found on the subject
property are not suitable for farming. The poor soil, lack of water and increasing
human conflict make the subject parcel decidedly unsuitable for ranching as well.
The economics of ranching have changed, causing dry land ranching to become
increasingly impracticable. Mr. Roth’s letter speaks to the increasing difficulty of
ranching in the area. It should be noted that Mr. Roth’s lands lie further east than
the subject property and thus likely experience less conflict than does the subject
property.”(Bold emphasis in original.)
The Hearings Officer is not persuaded by the applicants’ argument that their ranch – and the
subject property – are “too close to town” to be productive. The subject property is at least 25
miles from Bend, and I am aware there are many functioning farms and ranches located adjacent
to or within a short distance of the Bend, Redmond and Sisters urban areas. And while I have
found the soil types on the subject property and within the study area are of poor capability and
support little if any forage, that circumstance certainly is not unique to the subject property. The
record indicates the same soil types are present on Tax Lots 1400 and 2400 owned by the
applicants and receiving farm tax deferral as part of their ranch operations. Moreover, the subject
property is not a “non-contiguous holding” since it abuts Tax Lot 1400. I appreciate the
challenges the applicants face in ranching in the Millican area, and their desire to eliminate the
subject property from their ranch because it is west of most of their holdings. However, I also
understand the applicants have grazing leases on noncontiguous public land even further to the
west. And as discussed above, that is the nature of ranching in the Millican area and the EFU-HR
Subzone.
The Hearings Officer finds the nature of the applicants’ ranching operation is not materially
different from that presented in the Terrill application in which cattle were moved back and forth
between private and public lands grazing lands. I find the subject property is part of the
applicants’ Evans Wells Ranch and could reasonably be put to farm use and managed in
conjunction with the rest of the applicants’ ranch holdings. Therefore, I find the subject property
is not generally unsuitable for the production of farm crops and livestock in conjunction with
Tax Lot 1400 and the rest of the applicants’ ranch holdings.
iv. The proposed nonfarm dwelling is not
within one-quarter mile of a dairy farm,
feed lot, sales yard, slaughterhouse or
poultry, hog or mink farm, unless
Nash
CU-07-93
Page 24 of 33
adequate provisions are made and
approved by the Planning Director or
Hearings Body for a buffer between such
uses. The establishment of a buffer shall
be designed based upon consideration of
such factors as prevailing winds,
drainage, expansion potential of affected
agricultural uses, open space and any
other factor that may affect the livability
of the nonfarm dwelling or the
agriculture of the area.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the record
indicates the subject property is not located within one-quarter mile of a dairy farm, feed lot,
sales yard, slaughterhouse or poultry, hog or mink farm.
v. Road access, fire and police services and
utility systems (i.e. electrical and
telephone) are adequate for the use.
FINDINGS: The Hearings Officer makes the following findings concerning the adequacy of
public services and utilities for the proposed nonfarm dwellings:
1. Water. The applicants propose to provide domestic water to the nonfarm dwelling through a
private on-site well. The applicant submitted two well logs for wells in Section 24 of Township
19 Range 14 East. These wells are approximately 6 miles east of the subject property on the
other side of the township. One well was drilled in 1979 and water was found at a depth of 450
feet. The other well – known as the “Coyote Well” -- was dug by hand in 1925 to a depth of 15
feet and had water at a depth of 7 feet in January of 1972. Both staff and LandWatch question
whether these well logs are adequate to demonstrate there would be adequate domestic water for
the proposed nonfarm dwelling considering the distance to these wells. The Hearings Officer
agrees that the existence of wells located six miles from the subject property is not as probative
of water availability as closer wells would be. However, at the public hearing Flora Steffan, who
owns and lives on a ranch three miles east of the subject property, testified she has a well with a
water depth of 420 feet. In addition, my findings in the Terrill and Russell decisions cited above
indicate there were wells located in the vicinity of those parcels northeast of the subject property.
Finally, I am aware that water is hauled from Bend to the Millican area and stored in cisterns.
For these reasons, I find water would be available for a dwelling on the subject property either
from a private well or from hauled water stored in a cistern.
2. Sewage Disposal. The applicants propose to provide sewage disposal for the nonfarm dwelling
from an on-site septic system. In its comments on the applicant’s proposal, the Environmental
Health Division stated the applicants would be required to obtain an approved septic site
evaluation for the nonfarm dwelling. The Hearings Officer finds given the size of the subject
property that it is very likely a septic system adequate to serve a single-family dwelling could be
approved and constructed on the subject property. I find that if the board approves the applicants’
proposal on appeal, such approval should be subject to a condition of approval requiring the
Nash
CU-07-93
Page 25 of 33
applicants to obtain an approved septic site evaluation for the subject property.
3. Access. The Hearings Officer is aware the Institute of Transportation Engineers (ITE) Trip
Generation Manual predicts each single-family dwelling will generate approximately 10 daily
vehicle trips. Therefore, the proposed nonfarm dwelling would generate approximately 10 new
daily vehicle trips on Ford Road which bisects the subject property. The record indicates Ford
Road was established in 1914 with a 60-foot right-of-way, and that the road is not maintained by
either the county or the BLM. In its comments on the applicants’ proposal, the road department
stated no improvements were required to Ford Road to accommodate the addition of a single
dwelling. I find from this statement that the road department believes the condition of Ford Road
will adequately and safely handle the additional 10 daily vehicle trips that would be generated by
the proposed nonfarm dwelling.
4. Police Protection. Because the property is located outside an incorporated city, police
protection would be provided by the Deschutes County Sheriff. The staff report notes, and the
Hearings Officer agrees, that emergency response time to the subject property likely would be
quite slow given the property’s distance from Bend. Nevertheless, I find police protection is
available to the subject property in much the same manner as it is available to dwellings in other
remote parts of the county.
5. Fire Protection. The record indicates the subject property is located outside the boundaries of
any fire protection district. However, at the public hearing Flora Steffan testified there is a
private rangeland fire protection district in the Millican area to which the subject property could
belong. The applicants did not propose any particular method of fire protection for the proposed
dwelling. Therefore, the Hearings Officer finds that if the applicants’ proposal is approved by the
board on appeal, such approval should be subject to a condition of approval requiring the
applicants either to join a private fire protection district if one is available to protect the subject
property, or to provide an on-site source of firefighting water and an on-site firefighting water
delivery system for the dwelling.
6. Electricity. The record does not include a “willing-to-serve” letter from either Pacific Power or
Central Electric Cooperative (CEC). However, the applicants’ burden of proof states CEC would
provide electricity to the subject property if the applicants installed an electric line to the
property from the nearest existing CEC electric facility. However, the applicants state they
intend to provide electrical service to the proposed nonfarm dwelling with solar power
generation. The staff report states that to satisfy its burden of proof the applicant should be
required to submit a professional estimate of the electrical demand of the proposed dwelling, and
how that demand would be met through a solar powered system. In response, the applicant
submitted several pamphlets from providers of various types of alternative energy systems
including solar and wind energy generation.
The Hearings Officer is aware the number of dwellings in Central Oregon that are “off-the-grid”
is increasing in Central Oregon with the availability of alternate energy systems. At the public
hearing, Flora Steffan testified her electricity comes from a solar system and a backup generator.
For these reasons, I find electrical service would be available for a dwelling on the subject
property either through traditional or alternative means.
Nash
CU-07-93
Page 26 of 33
7. Telephone. The record does not include a “willing to serve” letter from any telephone service
providers. The applicants propose that telephone service would be provided to the nonfarm
dwelling through cellular telephone service. The staff report notes there are a number of areas in
the county that do not have cellular telephone service because of their distance from or position
in relation to cellular telephone antennas. However, the applicant submitted an electronic mail
message dated November 26, 2007 from Unicel, a local cellular telephone provider, stating it has
a transmission tower on Pine Mountain southeast of the subject property that provides cellular
telephone service from a point seven miles west of Brothers (approximately 47 miles east of
Bend) west to Bend and as far south as China Hat Road – an area encompassing the subject
property. In addition, at the public hearing Flora Steffan stated she uses a cellular telephone for
telephone service at her ranch located three miles east of the subject property, and uses a satellite
system for internet access. The applicant submitted pamphlets from satellite communication and
internet providers showing this technology would be available for a dwelling on the subject
property. Based on this evidence, the Hearings Officer finds telephone service would be
available to a dwelling on the subject property through cellular or satellite technology.
For the foregoing reasons, and with imposition of the recommended conditions of approval
described above, the Hearings Officer finds the proposed nonfarm dwellings will have adequate
public facilities and services as well as utilities.
3. Loss of tax deferral. Except as provided in DCC
18.16.050(I)(2), pursuant to ORS 215.236, a nonfarm
dwelling on a lot or parcel in an Exclusive Farm Use
zone that is or has been receiving special assessment
may be approved only on the condition that before a
building permit is issued, the applicant must produce
evidence from the County Assessor's Office that the
parcel upon which the dwelling is proposed has been
disqualified for special assessment at value for farm use
under ORS 308.370 or other special assessment under
ORS 308.765, 321.352, 321.730 or 321.815, and that any
additional tax or penalty imposed by the County
Assessor as a result of disqualification has been paid.
FINDINGS: As discussed in the findings above, the Assessor’s data in the record indicate the
subject property is not receiving farm tax deferral. Therefore, the Hearings Officer finds this
criterion is not applicable to the applicant’s proposal. However, the record includes a copy of an
Acknowledgement of Tax Consequences executed by the applicants.
For the foregoing reasons, the Hearings Officer finds the applicants’ proposal does not comply
with all nonfarm dwelling approval criteria.
WILDLIFE CONSERVATION PLAN DWELLING APPROVAL CRITERIA
I. Wildlife Conservation Plan Dwelling
1. A dwelling listed in DCC 18.16.030(G) is allowed when
Nash
CU-07-93
Page 27 of 33
the Planning Director or the Hearings Body finds that
the proposed dwelling:
a. Is situated on a lot or parcel existing on
November 4, 1993, that qualifies for a farm
dwelling, as listed in DCC 18.16.030(A), or a
nonfarm dwelling, as listed in DCC 18.16.030(C);
FINDINGS: The record indicates the subject property was created on March 18, 1917.
However, as discussed in the findings above, incorporated by reference herein, the Hearings
Officer has found the subject property does not qualify for a nonfarm dwelling under DCC
18.16.050(G).
b. Will not force a significant change in accepted
farm or forest practices on surrounding lands
devoted to farm or forest use;
c. Will not significantly increase the cost of
accepted farm or forest practices on surrounding
lands devoted to farm or forest use;
FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings
Officer has found the proposed nonfarm dwelling will not force a significant change in or
significantly increase the cost of accepted farm practices on surrounding land devoted to farm
use.
d. Will not be established on a lot or parcel that is
predominantly composed of soils rated Class I or
II, when not irrigated, or rated Prime or Unique
by the United States Natural Resources
Conservation Service or any combination of such
soils: and
FINDINGS: The record indicates the soils on the subject property are not rated Class I or II
without irrigation or Prime or Unique.
e. Is the only dwelling situated on the affected lot
or parcel.
FINDINGS: The record indicates the subject property is vacant and therefore the proposed
dwelling would be the only dwelling on the property.
2. For a wildlife conservation plan dwelling approval
based upon nonfarm dwelling criteria, DCC
18.15.050(I) shall also apply. Unless prior to approval of
a conditional use permit for a wildlife conservation plan
dwelling the applicant submits to the assessor
Nash
CU-07-93
Page 28 of 33
certification demonstrating approval by the Oregon
Department of Fish and Wildlife of a wildlife
conservation and management plan and its
implementation, the conditional use permit shall
contain a condition requiring that the applicant, prior
to issuance of a building permit for such dwelling,
either 1) submit certification to the assessor from
ODFW demonstrating approval and implementation of
a wildlife conservation and management plan qualifying
under ORS 215.808 or 2) pay the tax penalties required
by DCC 18.16.050(G)(3).
FINDINGS: The applicants’ burden of proof states they propose to prepare a conservation plan
and obtain ODFW’s approval of the plan prior to obtaining a building permit, and therefore
request that their proposed nonfarm dwelling approval be conditioned on compliance with the
requirements of this subsection. The Hearings Officer finds that if the board approves the
applicants’ proposal on appeal, such approval should be subject to a condition of approval
requiring the applicants to prepare and submit a wildlife conservation and management plan to
ODFW and obtain ODFW’s approval of the plan before obtaining a building permit for the
dwelling.
OTHER EFU ZONE STANDARDS
a. Section 18.16.060, Dimensional Standards
A. The minimum parcel size for divisions of irrigated parcels
created subject to DCC Title 17 shall be as specified under
DCC 18.16.065, “Subzones.”
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicants do
not propose a land division.
D. Each lot shall have a minimum street frontage of 50 feet.
FINDINGS: The record indicates the subject property is bisected by Ford Road and has at least
50 feet of frontage on the road, thereby satisfying this criterion.
E. Building Height. No building or structure shall be erected or
enlarged to exceed 30 feet in height, except as allowed under
DCC 18.120.040.
FINDINGS: The applicants did not submit building plans for the proposed nonfarm dwelling as
part of this application. The Hearings Officer finds that if the board approves the applicants’
proposal on appeal, such approval should be subject to a condition of approval requiring that any
dwelling built on the subject property must comply with the 30-foot height limit, and that
compliance with this height limit will be verified at the time of building permit issuance.
Nash
CU-07-93
Page 29 of 33
b. Section 18.16.070, Yards
FINDINGS: This section requires minimum setbacks for a dwelling of 40 feet from a local
street, 60 feet from a collector street, 100 feet from an arterial street, and 25 feet from side and
rear property lines. These required setbacks may increase to 100 feet from the side and the rear
property lines if the property on which a nonfarm dwelling would be located abuts land currently
employed in farm use. As discussed above, the subject property abuts Tax Lot 1400 which is
engaged in farm use, and therefore the 100-foot setback would apply to the subject property’s
eastern boundary. The Hearings Officer finds the subject property is large enough to
accommodate a dwelling complying with the minimum 40-foot setback from Ford Road and the
minimum 100-foot setback from the eastern property boundary.
For the foregoing reasons, the Hearings Officer finds the proposed nonfarm dwelling does not
satisfy all applicable provisions of Title 18.
WILDLIFE AREA COMBINING ZONE STANDARDS
3. Chapter 18.88, Wildlife Area Combining Zone (WA)
FINDINGS: At the outset, the record includes written and oral testimony addressing potential
impacts from the applicants’ proposed nonfarm dwelling on wildlife habitat in the Millican area.
In a letter dated November 20, 2007 Steven George, ODFW District Biologist, stated ODFW
supports the county’s policy, discussed in the findings above, not to permit additional nonfarm
dwellings in the Millican area, because of impacts to wildlife and their habitat from dwellings
and their residents. In her November 30, 2007 letter, Molly Brown of the Prineville BLM District
addressed potential impacts from residential development on a number of species and their
habitat, including the sage grouse. She cited a 1993 BLM sage grouse study, a copy of which is
included in the record, that identified crucial breeding, nesting, rearing and wintering habitat in
the Millican area.1 Ms. Brown’s letter states in pertinent part:
“Since completion of the study, land use and ownership have changed within
Millican Valley, and as such, so has the human footprint. See attached ‘draft’
maps titled ‘Sage-grouse habitat and seasonal use areas’ and “Sage-grouse and
the human footprint.’ The latter map is not designed to depict all public and
private land activities associated with the Millican Valley or Horse Ridge. The
map does suggest some of the cumulative effects that may be associated with
continued growth and human activity to sage-grouse and their habitats.”
Finally, at the public hearing Jim Anderson, a local naturalist and wildlife volunteer, testified he
is concerned about the cumulative impact on bird and mammal habitat from additional dwellings
in the Millican Valley.
The Hearings Officer understands the concerns expressed by Mr. Anderson and the public
1 This study is discussed in detail in the Hearings Officer’s decision in Dorsett, cited and discussed in the
findings above.
Nash
CU-07-93
Page 30 of 33
agencies. However, the provisions of the WA Zone discussed in the findings below do not
address general or cumulative impacts on wildlife and their habitat from the proposed nonfarm
dwelling. Rather, they focus on location of the proposed dwelling relative to existing roads and
the design of fences. Unlike the situation in my recent decisions in Dorsett and Bend Trap Club
involving conditional use applications for non-residential uses in the Millican area – i.e., a
private paintball facility and a private trap shooting facility, respectively – the general
conditional use compatibility criteria in Section 18.128.015 do not apply to applications for
nonfarm dwellings. Therefore, I find I cannot consider this wildlife habitat evidence because it
does not relate to any applicable approval criteria for the proposed nonfarm dwelling.2
a. Section 18.88.020, Application of Provisions
The provisions of DCC 18.88 shall apply to all areas identified in the
Comprehensive Plan as a winter deer range, significant elk habitat,
antelope range or deer migration corridor. Unincorporated
communities are exempt from the provisions of DCC 18.88.
FINDINGS: The subject property is zoned WA because of its location within an antelope range
and therefore the provisions of Chapter 18.88 apply to the applicants’ proposal.
b. Section 18.88.040, Uses Permitted Conditionally
A. Except as provided in DCC 18.88.040(B), in a zone with which
the WA Zone is combined, the conditional uses permitted shall
be those permitted conditionally by the underlying zone
subject to the provisions of the Comprehensive Plan, DCC
18.128 and other applicable sections of this title.
FINDINGS: The proposed nonfarm dwelling is a conditional use in the EFU-HR Zone and
therefore also is a condition use in the WA Zone.
c. Section 18.88.050, Dimensional Standards
In a WA Zone, the following dimensional standards shall apply:
* * *
C. In areas designated as antelope range in the Comprehensive
Plan Resource Element, the minimum lot size for new parcels
shall be 320 acres. (Emphasis added.)
FINDINGS: The Hearings Officer finds this criterion does not apply to the applicants’ proposal
because it does not include a land division.
2 ODFW’s wildlife habitat concerns may signal that the applicants will be challenged to develop a
wildlife habitat conservation and management plan that satisfies the agency.
Nash
CU-07-93
Page 31 of 33
c. Section 18.88.060, Siting Standards
A. Setbacks shall be those described in the underlying zone with
which the WA Zone is combined.
FINDINGS: As discussed in the findings above, the Hearings Officer has found the subject
property is large enough to accommodate a nonfarm dwelling meeting the minimum setbacks in
the EFU-HR Zone.
B. The footprint, including decks and porches, for new dwellings
shall be located entirely within 300 feet of public roads, private
roads or recorded easements for vehicular access existing as of
August 5, 1992, unless it can be found that:
1. Habitat values (i.e., browse, forage, cover, access to
water) and migration corridors are afforded equal or
greater protection through a different development
pattern; or
2. The siting within 300 feet of such roads or easements for
vehicular access would force the dwelling to be located
on irrigated land, in which case, the dwelling shall be
located to provide the least possible impact on wildlife
habitat considering browse, forage, cover, access to
water and migration corridors, and minimizing the
length of new access roads and driveways; or
3. The dwelling is set back no more than 50 feet from the
edge of a driveway that existed as of August 5, 1992.
FINDINGS: The applicants’ submitted nonfarm dwelling plot plan shows the proposed nonfarm
dwelling would be located in the southeast corner of the subject property on the east side and
within 300 feet of Ford Road, a dedicated public road established in 1914, therefore satisfying
this criterion.
d. Section 18.88.070, Fencing Standards
A. New fences in the Wildlife Area Combining Zone shall be
designed to permit wildlife passage. The following standards
and guidelines shall apply unless an alternative fence design
which provides equivalent wildlife passage is approved by the
County after consultation with the Oregon Department of Fish
and Wildlife:
1. The distance between the ground and the bottom strand
or board of the fence shall be at least 15 inches.
Nash
CU-07-93
Page 32 of 33
2. The height of the fence shall not exceed 48 inches above
ground level.
3. Smooth wire and wooden fences that allow passage of
wildlife are preferred. Woven wire fences are
discouraged.
B. Exemptions:
1. Fences encompassing less than 10,000 square feet which
surround or are adjacent to residences or structures are
exempt from the above fencing standards.
2. Corrals used for working livestock.
FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicants
have not proposed any fencing as part of this nonfarm dwelling application. However, I find that
if the board approves the applicants’ proposal on appeal, such approval should be subject to a
condition of approval requiring any fencing to comply with the requirements of this section.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby:
• DENIES the applicants’ proposed conditional use permit for a nonfarm dwelling on the
subject property; and
• FINDS that if the Deschutes County Board of Commissioners approves the applicants’
proposal on appeal, such approval should be subject to the following
RECOMMENDED CONDITIONS OF APPROVAL:
1. This approval is based on the applicants’ burden of proof and exhibits, supplemental
materials, and written and oral testimony. Any substantial change to the approved plan
will require a new land use application and approval.
PRIOR TO OBTAINING A BUILDING PERMIT FOR THE NONFARM DWELLING:
2. The applicants/owners shall execute and record a document binding the landowner, and
the landowner’s successors in interest, prohibiting them from pursuing a claim for relief
or cause of action alleging injury from farming or forest practices for which no action or
claim is allowed under ORS 30.396 or 30.397.
3. The applicants/owners shall obtain an approved septic site evaluation for the subject
property.
4. The applicants/owners shall either join a private fire protection district if one is available
Nash
CU-07-93
Page 33 of 33
to protect the subject property, or provide to the Planning Division an on-site source of
firefighting water and an on-site firefighting water delivery system for the dwelling.
5. The applicants/owners shall prepare and submit a wildlife conservation and management
plan to Oregon Department Fish and Wildlife and obtain its approval of the plan.
AT ALL TIMES:
6. Any dwelling built on the subject property shall comply with the 30-foot height limit, and
compliance with this height limit will be verified at the time of building permit issuance.
7. Any fencing shall comply with the requirements of the WA Zone.
Dated this _______ day of March, 2008.
Mailed this _______ day of March, 2008.
___________________________
Karen H. Green, Hearings Officer
THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS
TIMELY APPEALED.