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HomeMy WebLinkAbout2008-05-14 Business Meeting ExhibitPRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS I. INTRODUCTION • A. This is a limited de novo quasi-judicial hearing on an Appeal of the Hearings Officer's Decision Denying a Non-farm Dwelling on a Parcel in the Exclusive Farm Use Zone. The County File Number(s) are CU -07-93 and A-08-4. B. In those applications, the applicant requested Non-farm Dwelling on a Parcel in the Exclusive Farm Use Zone. C. The Board takes notice of the record below and includes that record as part of the record before us. D. In Board Order 2008-034, the Board ordered that this case shall be heard limited de novo, in accordance with DCC 22.32.027(B)(4). The Board will limit the issues on appeal to DCC 18.116.050(G)(1)(a)(iii) and 18.116.050(G)(2). II. BURDEN OF PROOF AND APPLICABLE CRITERIA A. The applicants have the burden of proving that they are entitled to the proposal sought. B. The standards applicable to the application before us are listed in the Hearings Officer decision. Copies are available on the table near the door. C. Testimony and evidence at this hearing must be directed toward the criteria, as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. D. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. III. HEARINGS PROCEDURE A. Evidence to be reviewed by the Board. 1 y 1,4k. j 2 .e" -c.8 E,(11,1, `# A The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. IV. ORDER OF PRESENTATION A. The hearing will be conducted in the following order. 1. The staff will give a report. 2. The applicant will then have an opportunity to offer testimony and evidence. 3. Proponents of the proposal then the opponents will then be given a chance to testify and present evidence. 4. The applicants will then be allowed to present rebuttal testimony but may not present new evidence. 5. At the Board's discretion, if the applicants presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. 7. The Board may limit the time period for presentations. B. If anyone wishes to ask a question of a witness, the person may direct the question to the Chair during that person's testimony, or, if the person has already testified, after all other witnesses have testified but before the Applicant's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. C. Continuances 1. The grant of a continuance or record extension shall be at the discretion of the Board. 2. If the Board grants a continuance, it shall continue the public hearing to a date certain at least seven days from the date of this hearing. 3. If, at the conclusion of the hearing, the Board leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the 2 period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. 4. If the hearing is continued or the record left open, the applicant shall also be allowed at least seven days after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. V. PRE -HEARING CONTACTS, BIASES, CONFLICTS OF INTERESTS A. Do any of the Commissioners have any ex -parte contacts, prior hearing observations; biases; or conflicts of interest to declare? If so, please state the nature and extent of those. B. Does any party wish to challenge any Commissioner based on ex -parte contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) (STAFF REPORT) 3 Community Development Department Planning Division Building Safety Division Environmental Health Division April 11, 2008 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM To: Deschutes Board of County Commissioners From: Will Groves, Senior Planner Subject: An Appeal of the Hearings Officer's Decision Denying a Non-farm Dwelling on a Parcel in the Exclusive Farm Use (EFU-HR) Zone (Applicants: Charles and Janet Nash). File No.: CU -07-93 (A-08-4). BACKGROUND The Board, under Order No. 2008-034 has decided that it will hear the applicant's appeal for File No. CU -07-93 (A-08-4) pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances. The Board has decided that appeal will be heard limited de novo, in accordance with DCC 22.32.027(6)(4). The Board has decided to limit the issues on appeal to DCC 18.116.050(G)(1)(a)(iii) and 18.116.050(G)(2). The applicants had requested 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. The staff report, dated November 2, 2008, recommended denial. A public hearing on the applicant's proposal was held on November 13, 2007. The Hearings Officer denied the application on March 7 2008. The applicant filed a timely appeal on March 19, 2008. 18.116.050(G)(1)(a)(3)1 requires that a proposed nonfarm dwelling is situated on an existing lot that is generally unsuitable for the production of farm crops and livestock. 1 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... Quality Services Performed with Pride Part (2)(b)2 of this section specifies that a lot is not "generally unsuitable" simply because it is too small to be farmed profitably by itself. Also, if a lot can be sold, leased, rented or otherwise managed as part of a commercial farm or ranch, it is not "generally unsuitable." The record indicates the subject 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, and on which they graze 250 head of cattle. 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 Hearings Officer found the applicants failed to demonstrate that 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 denied the application. Appellant argues that the subject property, managed in conjunction with applicant's adjacent ranching operations is effectively unsuitable because the subject property would generate approximately very little livestock value. However, 18.116.050(G) (2)(b)3 specifies that a lot is not "generally unsuitable" simply because it is too small to be farmed profitably by itself. The appellant also argues that changes in the Millican Valley, including increased off- road vehicle use and environmental changes have increased the difficulty of ranching in the area. While this is likely be true, the Hearings Officer found that the subject property is part of the applicants' Ranch and could reasonably be put to farm use and managed in conjunction with the rest of the applicants' adjacent ranch holdings, which currently have 250 head of cattle and are in farm deferral. STAFF DISCUSSION Staff believes the Hearings Officer has rendered a complete and accurate decision. DOCUMENTATION A copy of the staff report and Hearings Officer decision are attached for your review. SCHEDULE This item is scheduled for a limited de novo hearing at the Board's regular meeting on May 14, 2008. Please feel free to contact me with any questions or concerns. 2 b. A lot or parcel or portion of 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 or portion of 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." 3 b. A lot or parcel or portion of 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 or portion of 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-08-4.txt From: Land use consulting [landuse@coguide.com] Sent: Monday, April 07, 2008 1:48 PM To: William Groves Subject: A-08-4 Please extend the 150 day clock 90 days to July 30, 2008 to allow the Board adequate time to hear the Appeal and issue a decision. I look forward to receiving a hearing date. would it be possible to receive a copy of the Board Packet issued for this morning's meeting? Danielle Strome Agent for Applicant Page 1 WOW Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ DESCHUTES COUNTY PLANNING DIVISION STAFF REPORT FILE NUMBER: CU -07-93 HEARING DATE: APPLICANT: OWNER: November 13, 2007 6:30 P.M. Barnes and Sawyer rooms of the Deschutes Services Center 1300 NW Wall Street Bend, Oregon 97701 Land Use Consulting 510 NE 3rd Ct Bend, Or 97701 Nash, Charles K Nash, Janet M 25700 Spencer Wells Rd Bend Or 97701 REQUEST: Approval of a conditional use permit for nonfarm dwelling in an exclusive Farm Use Zone. LOCATION: Assessor's Map 19-14-00, Tax Lot 1401. STAFF CONTACT: Will Groves, Senior Planner I. APPLICABLE STANDARDS AND CRITERIA: Chapter 18.04 Title, Purpose and Definitions Chapter 18.16 Exclusive Farm Use (EFU) Zone Chapter 18.88, Wildlife Area Combining Zone II. BASIC FINDINGS: A. LOCATION: The subject property has an assigned address of is identified on Assessor's map 19-14-00, Tax Lot 1401. B. ZONING: The subject property is zoned Exclusive Farm Use. It is also within the Wildlife Area Combining zone. CU -05-15 Page 1 Quality Services Performed with Pride C. LOT OF RECORD: The subject property is a legal lot of record as determined by lot of record verification LR -07-20 D. PROPOSAL: The applicant proposes to construct a single-family dwelling on the subject property in an Exclusive Farm Use zone. The applicant has submitted a burden of proof statement and the packet of information assembled by the county with the application. The application materials are incorporated by reference herein. E. SITE DESCRIPTION: The subject property is vacant and contains approximately 160± acres. It contains no irrigation water rights. The site is bisected by Ford Road. The property slopes upward toward the rock outcropping in the Southeast corner of the lot and has moderately sparse vegetative growth of sagebrush and native grasses and sparse covering of Juniper trees on the upland portions. F. SURROUNDING LAND USES: The surrounding area includes properties primarily held in public ownership with Bureau of Land Management (BLM) land to the north, west and south. According to the. 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. It is unclear from the record what portion of the 35,621 acres in public ownership in the study area is used for rangeland grazing. Adjacent private land to the east is in farm deferral. G. SOILS: The applicant submitted a copy of a Natural Resources Conservation Service (NRCS) map of the area, which shows four (4) soil units mapped on the site: 1. 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. Consists of somewhat excessively drained soils with slow permeability. The Natural Resource Conservation Service rates this soil as 6e unirrigated and does not rate it for irrigation. The soil complex is not a high value soil, even when irrigated. This soil type accounts for approximately 45% of the subject property. 2. 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. Consists of excessively drained soils with rapid permeability. The Natural Resource Conservation Service rates this soil as 6e unirrigated and does not rate it for irrigation. The soil complex is not a high value soil, even when irrigated. This soil type accounts for approximately 25% of the subject property. 3. 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. Consists of excessively drained soils with moderate permeability. The Natural Resource Conservation Service rates this soil as 6e nonirrigated and does not rate it for irrigation. The soil complex is not a high value soil, even when irrigated. This soil type accounts for approximately 20% of the subject property. CU -07-93 Page 2 4. 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. The Natural Resource Conservation Service rates this soil as 6e nonirrigated and does not rate it for irrigation. The soil complex is not a high value soil, even when irrigated. This soil type accounts for approximately 10% of the subject property. H. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and received the following comments: 1. Deschutes County Road Department: The subject parcel is located on the old Ford Road that was established in 1914 with a right-of-way width of 60 feet. No road improvements or dedications are required for a dwelling unit. This County road is not maintained by the County or BLM. 2. Bureau of Land Management: The property is located in T. 19 S., R. 14 E., Section 19, SW1/4. According to the 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. The following agencies submitted a response of No Comment or did not respond to the notice: Deschutes County Environmental Health Division, Deschutes County Assessor, Watermaster - District 11, and Deschutes County Building Safety Division Property Address Coordinator. PUBLIC COMMENTS: The Planning Division mailed notice of the public hearing to all property owners within 750 feet of the subject property on October 4, 2007. Staff has not received an affidavit that a Land Use Action Sign was posted on the property as of the writing of this Staff report. Notice of the public hearing was published in the Bend Bulletin on October 14, 2007. One public letter was concerned that the property was not a legal lot of record. The property's lot of record status was established in LR -07-20. J. REVIEW PERIOD: This application was deemed complete and accepted on October 25, 2007. III. CONCLUSIONARY FINDINGS: TITLE 18 OF THE DESCHUTES COUNTY CODE, COUNTY ZONING. A. CHAPTER 18.16, EXCLUSIVE FARM USE ZONES. 1. Section 18.16.030, Conditional uses permitted - High value and non -high value farmland. C. Nonfarm dwelling and accessory uses thereto. FINDING: The applicants are proposing to establish a nonfarm dwelling in the EFU Zone. The proposed use may be allowed as a conditional use if the applicant satisfies the applicable criteria in Title 18 of the County Code. The applicants have not proposed to establish another use other than the dwelling under this application. CU -07-93 Page 3 2. 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 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. 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. FINDING: The record indicates that some or all of 14 EFU-zoned tax Tots are located within a one -mile radius of the subject property, 5 of which are privately owned. Of these 5 privately owned tax Tots, 2 are receiving farm tax deferral, and none are irrigated. Only one private parcel in the study area has enough acres to meet the minimum of 320 total acres to meet the minimum standard for a farm parcel in the subzone. The record indicates the typical farm practices in the area include livestock grazing. The record indicates the typical farm practices in the study area are dry land livestock grazing on open range. Because of the lack of irrigation water and the generally poor soil quality in the study area there is no crop cultivation or hay production. The record indicates the abutting parcels to north, south, and east are, according to the Upper Deschutes Resource Management Plan, within a non -motorized recreational use area, Horse Ridge Grazing Allotment, and Primary Wildlife Emphasis Area. The record includes information from the Oregon State University (OSU) Extension Service describing the types of impacts that could be anticipated from livestock grazing. These include dust, manure odor, possible interference with vehicular traffic, and property damage if livestock trespass. Inasmuch as there is minimal farm use occurring on adjacent parcels — consisting only of cattle grazing -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. Because of the open range, cattle are allowed to graze wherever they want, and property owners such as the applicant are required to fence their property to exclude grazing cattle, rather than the other way around. For these reasons, Staff believes the applicant's proposal satisfies this criterion. CU -07-93 Page 4 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 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. FINDING: On June 1, 1998, the Land Conservation and Development Commission adopted amendments to the administrative rules implementing Goal 3, Agricultural Lands (OAR Chapter 660-033) to incorporate case law and to clarify the analysis under the "stability" approval criterion. The rules continue to apply the three-step "stability" analysis first articulated in Sweeten v. Clackamas County, 17 Or LUBA 1234 (1989). The rules are 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; CU -07-93 Page 5 (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 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... Size and Adequacy of Study Area. The County uses a study area consisting of all EFU- zoned parcels located entirely or partly within a one -mile radius of the subject property's boundaries. Such parcels encompass approximately 38,182 acres, of which, approximately 35,621 acres are in public ownership and approximately 1,441 acres are in private ownership. The record includes 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 all but the F1 forest zoned lands in the southwest of the study area is zoned EFU. As discussed above, the maps and Assessor's data in the record show the study area includes 14 EFU-zoned tax Tots, of which 5 are privately owned. The record indicates the privately owned tax lots range in size from approximately 82 to 640 acres. Of the privately owned tax lots, all are larger than 40 acres in size. The privately owned tax lot abutting the subject property to the east is approximately 480 acres and is under farm tax deferral. Staff is uncertain, and requests the Hearings Officer make a finding, if the study area is of appropriate size for the analysis required under this section. The Comprehensive Plan Resource Element identifies the Horse Ridge subzone as characterized by rangeland grazing with a median tract size of 2,100 acres. Much of the rangeland grazing occurs on public lands through land grazing permits. Given the large average tract size even the large study area (38,182 acres) acres may be inadequate to evaluate cumulative impact of nonfarm dwellings on other Tots or parcels in the area. Also, as discussed below, an approval of this application would represent a change in policy that would potentially allow nonfarm dwellings broadly in the EFU-HR subzone. A quick analysis by staff suggests that a change in this policy would potentially enable hundreds of nonfarm dwelling approvals in the EFU-HR subzone. These dwellings would be scattered throughout the EFU-HR subzone and could materially alter the stability of the rangeland grazing in the subzone. For these reasons, Staff is uncertain if the study area included in the record is sufficient to evaluate cumulative impact of nonfarm dwellings on other lots or parcels in the area. Types of Farm Uses. The record indicates two of the privately owned tax Tots in the study area are receiving farm tax deferral and none have irrigation. Public lands in the area are available for rangeland grazing through land grazing permits. The study area consists of soil types that have a very low capability rating and is not considered high value soil when irrigated. The record indicates the study area is not located within an irrigation district. CU -07-93 Page 6 Based upon the acreage in the study area that is receiving farm tax deferral, the Staff estimates approximately 1,120 acres are engaged in private farm use. Staff estimates the remaining 320 acres in private ownership are not in private farm use, as they do not receive farm tax deferral. It is unclear from the record what portion of the 35,621 acres in public ownership is used for rangeland grazing. 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. Dwelling Development Trends Since 1993. As discussed above, no privately -owned tax Tots in the study area have dwellings. Potential Nonfarm Parcels. Based on the Assessor's data discussed in the findings above, of the 5 existing privately owned tax Tots, 5 are vacant and therefore have the potential to be developed with a nonfarm dwelling. With respect to potential nonfarm parcels, 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. As discussed above, the record indicates none of the privately -owned tax Tots in the study area has irrigation and therefore no tax lot would qualify for an irrigated land division. b. Non -irrigated Land Divisions. Under the provisions for non -irrigated land divisions, only one type of land division is allowed in the Horse Ridge Subzone -- a farm division with a minimum parcel size of 320 acres. The record indicates there is one privately owned parcel in the study area that has 640 acres, and therefore would qualify for a non -irrigated land division, creating one additional parcel. 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 (CU -05-15), the 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." CU -07-93 Page 7 Theoretically, if the 5 existing vacant tax Tots and one new lot potentially created through a non -irrigated land division identified above were approved for nonfarm dwellings there could be 6 additional nonfarm dwellings in the study area. One of these parcels is 160 acres or smaller, and therefore is "similarly situated" to the subject property considering size. In addition, like the subject property it has no irrigation and the similar nonhigh value soil types. Because each nonfarm dwelling application must be reviewed on its own merits, without a case-by-case evaluation of the tax lot (19-14-00 1300) that is "similarly situated" to the subject property it is not possible to determine if this lot is a potential nonfarm parcel. Nevertheless, for purposes of this analysis, Staff assumes that the tax lot (19-14-00 1300) could be developed with nonfarm dwellings if the subject property is approved for a nonfarm dwelling. The applicant has stated that this lot is open space in a homeowner's association that is ineligible for development. Information sufficient to dismiss the potential future of this parcel is not available in the record. 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 thedwelling 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), it was 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. Stability and Character of the Land Use Pattern of the Area. Due to the extensive public ownership in the study area, land use pattern have been quite stable over time. No dwellings of any type have been approved in the study area. Private lands have been used for rangeland grazing. Public lands have been, according to the Upper Deschutes Resource Management Plan, used as non -motorized recreational use area, Horse Ridge Grazing Allotment, and Primary Wildlife Emphasis Area. Effect on Stability from Proposed Nonfarm Dwelling. The Hearings Officer found in CU -05-15 that 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. CU -07-93 Page 8 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. As discussed above, the subject property is located in the middle of a very Targe shrub - steppe landscape in public and private ownership. The vast majority of the land in the study area is not engaged in farm use, apparently never has been cultivated or irrigated, and has poor quality soils. As discussed above, Staff believes that only one of the existing tax Tots in the study area is "similarly situated" to the subject property in terms of size, lack of irrigation and poor soil. Therefore approval of the proposed nonfarm dwelling on the subject property would potentially set a precedent for approval of a nonfarm dwelling on one other tax lot in the study area. Staff believes that approval of the proposed nonfarm dwelling will set a precedent for the wholesale approval of nonfarm dwellings on both the "similarly situated" parcel, the potential parcel created through non- irrigated land division, and four existing larger parcels to the detriment of surrounding farming. In the Hearings Officer's previous decision in Russell (CU -95-94), the Hearings Officer was asked to approve a nonfarm dwelling on a 40 -acre parcel in the vicinity of the subject property. In denying the application, the Hearings Officer made the following findings relevant to this application: "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. CU -07-93 Page 9 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 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." Staff is aware that the Board of County Commissioners has, to date, not reviewed the policy articulated in the Best decision, and therefore this policy apparently remains in force. Staff believes 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. CU -07-93 Page 10 Therefore, Staff believes that 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 applicant has included a policy argument suggesting that changes in environmental conditions, market conditions, and the remote location of the subject parcel offset the concerns raised above. Fifteen years have passed since the Best decision was issued, and the Board may be interested in reviewing this policy. However, staff believes the Hearings Officer should deny this application based on the above analysis and that any change to the existing policy is a matter for review by the Board. 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: 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. /f 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. FINDING: The property is not irrigated, and the soils are of a type and classification so poor as not to be suitable for crop production. However, the soil type is suitable for dry land grazing. As previously discussed, the predominant agricultural activity in the area in which the subject property is located is open range livestock grazing, primarily for cattle production. Based on this, the question is then whether the subject property is suitable for such activity, considering the factors listed above. CU -07-93 Page 11 The record contains the following information from the SCS and the OSU Extension Service concerning the characteristics of cattle production: 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 value of beef production on the property can be calculated using the following formula: 30 days X 2#/day/acre = 4.22 lbs. Beef/acre (14.21 acres per AUM) 4.22 lbs. Beef/acre X 160 acres X $0.80 /Ib. = $540.46 Thus the total gross beef production potential for the subject property would be approximately $540.46 annually. This figure represents gross income and does not take into account fencing costs, land preparation, purchase costs of livestock, veterinary costs, or any other costs of production. Staff also notes that subject property has little, if any, forage for livestock. The understory is very sparse and would support only minimal dry land grazing. Based on this information, it is clear there are extreme limitations to livestock production on the subject property and income that can be generated. Based on this information it is staff's opinion the subject property, by itself, is generally unsuitable for the production of livestock, considering the "suitable" but adverse soil conditions, vegetation and the size of the parcel. However, the test for "unsuitability" under subsection 2 of this section includes consideration for whether the subject property could be suitable for livestock production in conjunction with a larger commercial ranch. As discussed below, staff concludes the subject property is not "generally unsuitable" because it could be used in conjunction with larger commercial grazing operations in the vicinity. 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 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. CU -07-93 Page 12 FINDING: This criterion is not applicable because the subject property is not 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. FINDING: The applicants submitted the following information to demonstrate that public services and utilities are adequate: 1. Electricity. The applicant indicates that electrical service will be provided solar power. Staff is uncertain this statement, by itself, demonstrates that a solar system could provide adequate electrical service for the proposed dwelling. Staff believes that in order to find that a solar system provides adequate electrical service for the proposed dwelling, the applicant would need to submit a professional estimate of the electrical demand of the proposed dwelling. Next, the applicant would need to demonstrate that solar systems are commercially available to meet this demand. Finally, a condition of any approval should require the 1) the installation of such a system prior to initiation of use and 2) provisions to ensure to continuous function of such a system. The applicant has also indicated that Pacific Power would be available if applicant chose to run the line to the subject property. However, a can/will serve is not in the record. 2. Road access. The subject parcel is located on the old Ford Road that was established in 1914 with a right-of-way width of 60 feet. No road improvements or dedications are required for a dwelling unit. This County road is not maintained by the County or BLM. Presently, there is no evidence in the record that this road is adequate for general or emergency vehicle access. Staff believes the applicant should be required to establish that Ford Road is adequate for general and emergency vehicle access prior to any approval. 3. Telephone. The applicant has stated that cellular phone service can be provided by any number of cellular phone providers. Staff is uncertain this statement, by itself, demonstrates that a cellular phone could provide adequate phone service for the proposed dwelling. Many areas of the County have little or no cellular phone service. Staff believes the applicant should be required to demonstrate cellular phone access from the subject property as a condition of any approval. 4. Domestic water. The applicant has submitted two well logs for wells. However, each of these wells is over 4 miles away from the subject property. Staff believes that the distance to these wells from the subject property renders the submitted well log data irrelevant for extrapolation to the subject property. Therefore, the applicant has not demonstrated water adequate for the proposed dwelling. Staff believes the applicant should be required to demonstrate adequate provision of water to the subject property as a condition of any approval. 5. Fire protection. The subject property is outside of a fire protection district boundary. The applicant has not suggested any method of fire protection for the proposed dwelling. Staff believes the applicant should be required to demonstrate adequate fire protection of the proposed dwelling as a condition of any approval. CU -07-93 Page 13 6. Police protection. Because the subject property is located outside an incorporated city, police protection for the proposed nonfarm dwelling would be provided by the Deschutes County Sheriff. However, emergency response time to the subject property likely would be quite slow. Nevertheless, Staff believes that 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. Based on this information, it is Staff's opinion staff finds the proposal does not meet this criterion. 3. Loss of tax deferral. Except as provided in DCC 18.16.050(1)(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. FINDING: The County Assessor's records indicate the subject property is not currently receiving farm tax deferral. Therefore, this criterion is not applicable to this property or proposal. 3. Section 18.16.070. Yards. FINDING: This section of the County Code requires minimum yards of 40 feet from an local street, 25 feet from side property lines, and 25 feet from a rear property line. These required yards may increase to 100 feet from the side and the rear property lines if a nonfarm dwelling is proposed and the property on which it will be located abuts land currently employed in farm use. Staff finds, after review of the submitted information, County records, and site visit that there are no farm uses on the properties adjacent to the subject property except to the east. Therefore, the 100 -foot setback shall only apply to the setback from the east property line. Staff is unable to clearly identify from the submitted materials the proposed building envelope. The required setbacks of this section, as well as the siting standards of 18.88 should be included as conditions of any approval. C. CHAPTER 18.88 WILDLIFE AREA COMBINING ZONE (WA) 1. Section 18.88.060, Siting standards. 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... CU -07-93 Page 14 FINDING: The site plan submitted by the applicant shows the building envelope is wholly within 300 feet of Ford Road, which is a Public Road established in 1914. Therefore, the proposal complies with this criterion. 2. 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. 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. FINDING: The applicant has not proposed any fencing as part of the application. The subject property is not fenced. The Applicant has stated his intent to comply with these fencing standards for any future fencing. IV. CONCLUSION AND RECOMMENDATION: Based on the evidence in the record submitted to date, staff recommends denial of this application because it fails to comply or adequately address all relevant criteria. If the applicant introduces significant new evidence at the hearing, planning staff would like an opportunity to comment. Dated this day of October, 2007. Mailed this day of October, 2007. CU -07-93 Page 15 Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ DECISION OF DESCHUTES COUNTY PLANNING DIVISION FILE NUMBER: APPLICANTS/ PROPERTY OWNERS: APPLICANTS' AGENT: OPPONENT'S ATTORNEY: REQUEST: STAFF REVIEWER: HEARING DATE: RECORD CLOSED: I. A. CU -07-93 Charles K. and Janet M. Nash 25700 Spencer Wells Road Bend Oregon 97701 Land Use Consulting 510 N.E. 3rd Court Bend, Oregon 97701 Paul D. Dewey 1539 N.W. Vicksburg Bend, Oregon 97701 Attorney for Central Oregon LandWatch 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. Will Groves, Senior Planner November 13, 2007 December 21, 2007 APPLICABLE STANDARDS AND CRITERIA: Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Nash CU -05-15 Page 1 of 33 Chapter 18.04 Title, Purpose and Definitions * Section 18.04.040, Definitions Quality Services Performed zvith Pride 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 * 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 Nash CU -07-93 Page 2 of 33 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: 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. Nash CU -07-93 Page 3 of 33 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, 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. 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. Nash CU -07-93 Page 4 of 33 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: 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(1). 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. Nash CU -07-93 Page 5 of 33 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 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: 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. Nash CU -07-93 Page 6 of 33 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 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. Nash CU -07-93 Page 7 of 33 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 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; Nash CU -07-93 Page 8 of 33 (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 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). Nash CU -07-93 Page 9 of 33 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 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. Nash CU -07-93 Page 10 of 33 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 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 nonfami 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. Nash CU -07-93 Page 11 of 33 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 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. Nash CU -07-93 Page 12 of 33 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. 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: Nash CU -07-93 Page 13 of 33 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 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: 1) 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 1 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." Nash CU -07-93 Page 14 of 33 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 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 A UM [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. Nash CU -07-93 Page 15 of 33 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 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: Nash CU -07-93 Page 16 of 33 "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, 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. Nash CU -07-93 Page 17 of 33 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: 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. Nash CU -07-93 Page 18 of 33 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 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. Nash CU -07-93 Page 19 of 33 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.] * * * *. 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. Nash CU -07-93 Page 20 of 33 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 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). Nash CU -07-93 Page 21 of 33 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 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.) Nash CU -07-93 Page 22 of 33 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 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. Nash CU -07-93 Page 23 of 33 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 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. Nash CU -07-93 Page 24 of 33 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 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. Nash CU -07-93 Page 25 of 33 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. 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. Nash CU -07-93 Page 26 of 33 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 APPRO VAL CRITERIA I. Wildlife Conservation Plan Dwelling 1. A dwelling listed in DCC 18.16.030(G) is allowed when 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 Nash CU -07-93 Page 27 of 33 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 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. Nash CU -07-93 Page 28 of 33 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. 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: 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 29 of 33 "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 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 Planas 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. 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 30 of 33 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. 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. Nash CU -07-93 Page 31 of 33 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. 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: Nash CU -07-93 Page 32 of 33 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 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. Nash CU -07-93 Page 33 of 33 ES DESCHUt8 ato v�v�r�k ant Department CU -07-93 MEREaVit AP PR Planning Division Building Safety Division Environmental Health Division RS: Charles K. and Janet Ml.WaMv Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 25700 Spencer Wells Road http://www.co.deschutes.or.us/cdd/ 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 Nash CU -05-15 Page 1 of 33 * Section 18.88.020, Application of Provisions Quality Services Performed with Pride * 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 2 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 3 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. 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 4 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 5 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: 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 -anile 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 6 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 fainting 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, foiiner 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 nonfaiiu dwelling. In fact, Mr. Roth stated he supports the applicants' proposal because, based on his ranching experience, he believes it would encourage economically viable fares 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 7 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 8 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 -anile 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 -anile 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 9 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 faun 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 10 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 fare 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 nonfann 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 nonfarn 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 11 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 nonfann 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 12 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 13 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 farthing 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 fr-oin: 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 1 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 nonfaim 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 14 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 A UM [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 firom 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 15 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 16 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 17 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 18 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 nonfatnt 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 19 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 20 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 21 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 22 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 faun 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 23 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 (Le. 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 nonfann 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 24 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 25 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 26 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(1) 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 27 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 peiinit, 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 28 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 faun 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.' 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 29 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 nonfairu 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 30 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 31 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 32 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. Nash CU -07-93 Page 33 of 33