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HomeMy WebLinkAboutWork Session - Nash AppealDeschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of June 25, 2008 Please see directions for completing this document on the next page. DATE: June 12, 2008 FROM: Will Groves CDD x6518 TITLE OF AGENDA ITEM: A Work Session on 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). PUBLIC HEARING ON THIS DATE? No. BACKGROUND AND POLICY IMPLICATIONS: The Board, under Order No. 2008-034 decided that it would 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 decided that the appeal would be heard limited de novo, in accordance with DCC 22.32.027(B)(4). The Board decided to limit the issues on appeal to DCC 18.116.050(G)(1)(a)(iii) and 18.116.050(G)(2). The applicants 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. The Board conducted a public hearing on May 14, 2008. The Board requested this work session upon close of the written record to review the post -hearing submitted materials. FISCAL IMPLICATIONS: None. RECOMMENDATION & ACTION REQUESTED: Conduct work session. ATTENDANCE: Will Groves, Legal DISTRIBUTION OF DOCUMENTS: Board, Legal. Community Development Department Planning Division Building Safety Division Environmental Health Division June 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: A Work Session on 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 decided that it would 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 decided that the appeal would be heard limited de novo, in accordance with DCC 22.32.027(6)(4). The Board decided to limit the issues on appeal to DCC 18.116.050(G)(1)(a)(iii) and 18.116.050(G)(2). The applicants 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. The Board conducted a public hearing on May 14, 2008. The applicant has extended the 150 clock to July 30, 2008. The Board requested this work session upon close of the written record to review the post -hearing submitted materials. Quality Services Performed with Pride STAFF DISCUSSION Staff believes the Hearings Officer has rendered a complete and accurate decision. DOCUMENTATION A copy of the staff report, Hearings Officer decision, and post hearing submissions are attached for your review. SCHEDULE This item is scheduled for a work session on June 25, 2008. Please feel free to contact me with any questions or concerns. Land Use Consulting. tl Will Groves Planning Department Deschutes County Community Development 117 NW Lafayette Avenue Bend, Oregon 97701 510 NE 3rd St Bend, Oregon 97701 it 541.390.8600 A 541.317.1009 1806 SE 57th Ave Portland, Oregon 97701 ! 503.457.6161 503841.5098 Dear Board of County Commissioners: This letter is written in rebuttal to the submissions you have received. I urge you conduct a site specific analysis focused on the whether or not the proposed homesite is "generally unsuitable for the production of ... livestock" as required by stair law. Mrs. Fancher's letter of May 29th gives a litany of reasons why the instant application must be approved. I would like to point out the following to you: > The Millican area is used for a variety of active uses. It includes gravel mines, off-road vehicle use, and cattle grazing on large tracts of non -irrigated, unproductive land. > "a 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." > Much of the land in the area. is federal land — land that is not affected by the County's decision >The County's imposition of a 320 -acre minimum lot size for farm dwellings makes it very difficult to establish ranch homes in the area. Only one lot within one mile of the Nash property is large enough to qualify for a ranch dwelling, assuming it can comply with the farm management plan requirements of the County code. There are just five lots in the study area within a one -mile radius around the Nash property. > Deschutes County is not required by a decision in one case to reach the same result in another, similar case. Prior local land use case decisions do not act as binding precedent for new applications. As noted by the Oregon Land Use Board of Appeals, "Oregon's land use adjudication is `incompatible with giving preclusive effect to issues previously determined by a local government tribunal in another proceeding." Nelson v. Clackamas County, 19 Or LUBA at 140. > The Nash family asked the County to find that a portion of their 160 -acre property, not the entire property, is generally unsuited to farm use. > Compliance with wildlife area siting standards means that a decision to approve this application will not destroy wildlife habitat or the ability to graze cattle (should someone choose to so do) And ask that you Affirm the findings of the Hearings Officer Karen Green that > 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." by monitoring recreational and illegal use of grazing lands in the area > approval of a nonfarm dwelling on the Nash property will not materially alter the stability of the land use pattem of the area A State administrative rules require a site and fact -specific analysis of each nonfarm application and the area that surrounds that property > the application of a blanket policy of denial for any nonfarm dwelling application in the area is not legally correct based on the County's Best decision > the County's Best decision did not prelude approval of the Nash's application. > State laws regarding EFU zones have changed since the Best decision was issued And Make the following additional findings: > County Code should be interpreted consistently with State law, rather than creating more stringent standards when no clear case advocating the drafters' intent for a more stringent construction is made > County and State law allow you to base your decision upon the unsuitability of the portion of the lot upon which the nonfarm dwelling is proposed to be sited, rather than the parcel as a whole > The economics of farming are integral to determinations of suitability ➢ When it is not possible to make any type of profit from producing livestock on a tract of land, it is appropriate to find that the tract is unsuitable for producing livestock. > The "generally unsuitable" analysis should be applied to the portion of the Nash property proposed for development of the home. > The proposed homesite on the 160 -acre parcel at issue is generally unsuited for farm use because of its low productivity, lack of irrigation, proximity to Ford Rd and presence of rock outcropping(s) and County and State laws that govem this case allow the decision-maker(s) to restrict analysis to the portion of the subject property upon which the dwelling will be sited.12 >The "in conjunction" analysis should not be expanded beyond a consideration whether the size or location of a property prevents it from being suited to farm use. > Under State law, location and parcel size are the only unsuitability factors properly affected by whether combining the property with other lands makes it suitable for farm use ➢The County must consider the poor soils, the low rainfall in the area, the harm done by erosion, the fact that a large amount of similar land in the area is not used for farm use, the terrain and the low amount of vegetation produced by the subject property and adjacent lands > The parcel as a whole is generally unsuited for farm use because of terrain, adverse soil and land conditions, drainage and flooding [and] lack of vegetation' > If a property is unsuitable for farm use due to terrain, adverse soil or land conditions, drainage and flooding or vegetation, the fact it is combined with additional equally unsuitable land will not make it suited to farm use. > When a parcel or tract becomes a known money loser, the land is not going to be placed into farm use regardless of how the County chooses to classify the land. ' "The proposed nonfarm dwelling is situated on an erasling lot or parcel, or a porton 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." DCC 18.16.050(G)(1 Xa)(ili) [bold added for emphasis] 2 Note: The proposed bullring envelope was not further restricted because the entire proposed envebpe lies within 300 feet of Ford Rd and is of the same soils class (as determined by NRCS) and is therefore assumed to be (more or less) uniformly unsuitable 3 Id. In rebuttal to the letters presented by 1000 Friends I point to the group's own statements as contained in the March 24, 2008 Bulletin article entitled Millican ranch oomers fight to put house on their land (attached and highlighted for emphasis) Even as Ms. McBeth's letter in opposition urged that the subject lands are suitable, she "echoed one of Miller's'] concerns — that people across the Western United States are moving away from farming and ranching because the livelihoods are not sustainable in the long run."5 As pointed out in my previous letter submitted for your consideration, Ms. McBeth's assertions that Class VI soils are, de facto, suitable is factually incorrect and flies in the face of countless County and LUBA decisions which give a detailed site- specific analysis of the conditions of subject properties. Were we to accept her proposition, there would be no need for the "considering the terrain, adverse soils or land conditions, drainage and flooding, vegetation" language as NRCS soils rating alone would be determinative of suitability. Such an interpretation is a perversion and is simply not supported by previous decisions. A finding that the land is suitable, and more particularly that portion upon which the dwelling will be placed is suitable, alongwith an admission that farming and ranching are unsustainable is decidedly illogical. "A profit in money" is integral to the definition of farm us,. To ignore the unsustainable lack of profit belies the very purpose of these provisions. This tribunal should not base its decision in the instant case upon fears that approval would preclude later denials. "State administrative rules require a site and fact -specific analysis of each nonfarm application and the area that surrounds that property and that the application of a blanket policy of denial for any nonfarm dwelling application in the area is not legally correct based on the County's Best decision." Furthermore, prior local land use case decisions do not act as binding precedent for new applications.' Long before the Nashes moved optimistically to the Millican Valley some 16 years ago, homesteaders, lured by promoters, came in droves with dreams of making homes and profitable farms. "[W]ells and irrigation will turn all this into a productive region that will support animals to the acre rather than requiring acres for each animal. I know wells and water, irrigation and experts and will bring them together to wring water out of this desert.s' "In most cases all the homesteaders gained was experience, as the locator -fee was about the only monetary profit the homesteads produced...George Millican told the homesteaders that settling to farm was unadvisable due to the high altitude, no frost free months and absence of water.s' "I think all of us on the desert look tired and discouraged. In the back of our minds we all probably have the thought that maybe the smart people are the neighbors who moved on. Then there is the old fearful question with all of us, if we leave will we ever own land again. It is hard work living out a Refening to Craig Miller of the Oregon Natural Desert Association in Bend 5 Bomrd, Hillary. Milken ranch owners fight to put house on their land. The Bulletin. May 24, 2008. s 'Farm use" means the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or by the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur -bearing annals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof.' Deschutes County Code 18.04; ORS 215.203 (2)(a) ' As noted by the Oregon Land Use Board of Appeals, 'Oregon's land use adjudication is Incompatible with giving preclusive effect to issues greviousy determined by a local government tribunal in anther proceecing." Nelson v. Clackamas County, 19 Or LUBA at 140. Milian Memories, pg. 26 9 Id at pg. 14 there and when we try to live half civilized it's very hard work. I keep reminding myself that it's the darkest before dawn and so on, but sometimes it seems like a long night of long dusty days." Those homesteads are frequently referred to as "remote starvation places" or "starvation homesteads".10 That land and those conditions continue to exist today. The adversity described is only compounded by ever-increasing conflicting uses. We simply cannot continue to exercise a policy of irresponsible indecision. We are now faced with an area which has experienced the worst that planning has to offer. Rather than the unfettered growth that everyone so fears, homes have been all but prohibited and stewardship left to itinerant; would be wrongdoers. The Nashes are before you seeking the same case-by-case analysis afforded the rest of the County and State. While we have proven that the entire ranch is unsuitable, your analysis and decision should properly focus on the unsuitability of that portion of the subject property upon which the nonfarm dwelling is proposed to be sited.11 The poor quality of the soils, lack of irrigation and increasing noise and activity in the area are undisputed — this epitomizes unsuitability and is the very type of land upon which the legislature sought to allow nonfarm dwellings. I urge you to make the foregoing findings and approve the instant application. Sincerely, Danielle Strome So Id at pg. 152 'The proposed nonfarm dwelling is situated on an existing lot or parcel, ora 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 flooring, vegetation, location and size of the tract? DCC 18.16.050(G)(1)(aXiii) [bold added for emphasis] June 10, 2008 Board of County Commissioners C/o Will Groves Community Development Department Deschutes County 117 NW Lafayette Ave Bend, Oregon 97701 Re: A-08-04; CU -07-93 It is our position that sufficient legal evidence exists to approve this application. Both Liz Fancher and staff counsel provided the evidence necessary to approve this application. Paul Dewey's statement that "Places like the Millican area can easily and quickly unravel" is ironic. It is our opinion that Millican is all ready unraveling --illegal dwellings, conflicting uses and a recreational overlay have tipped the balance away from agriculture. Any change that may be made to the comprehensive code certainly would not be greater than 160 acres, the parcel size we are requesting. One home on 160 acres could hardly be considered "residential." The code could still be addressed after the approval of this application. The pattern of private land ownership in eastern Deschutes County would not lend itself to widespread, rampant development. But more legal, vested ownership would build a stable, safe community of year round residents. And provide water to desert wildlife. Mr. Dewey also states that occupants would not necessarily take on a monitoring role. Any property owner is interested in the well being of what he or she owns and cares about. Stephen Roth's letter addresses that issue quite well. The law enforcement personnel we have contact with on a regular basis are in unanimous consensus that rural residents are a deterrent to crime and aid in investigations. The conditional use process is in place to give Deschutes county residents a case-by-case study of their individual applications. Our land use rights and privileges should not be compromised out of a misplaced adherence to outdated rules and practices. Thank you for your detailed consideration of our application. Keith and Janet Nash 25700 Spencer Wells Rd Bend, OR 97701 Millican ranch owners fight to put house on their land 3y Hillary Bomrd / The Bulletin ?ublished: May 24. 2008 4:O0AM PST VIILLICAN— When Janet and (eith Nash bought Evans Wells anch in the wide-open bowl of the Millican Valley 12 years ago, the :auk ranchers figured theywere in t for the long haul. `I thought I'd stay here forever," 'anet Nash said Thursday, in the lining room of her home on the ?,200 -acre ranch. Evans Wells anch lies about 25 miles southeast )f Bend, in the sparsely populated irea where buildings are few and far aetween. 3ut the Nashes' plans changed, they ;ay, as increased off-road vehicle Be, hunting and tighter rules for ;razing on federal land make it larder to earn a living from their 50 cattle. they tried for two years to sell the anch, without success. Vow, the couple want to build a rouse on a 160 -acre parcel, in hopes hat a home on a smaller piece of and will attract a buyer. fhe Nashes are only asking for one louse, but it is a request that, recording to a county staff analysis, :ould open up historic farmland to hundreds of homes in the vast ;astern end of Deschutes County. flee change would also run contrary .o policy established by a past Iounty Commission in the 1990s, of minimizing new -home building on farmland in the remote Millican Valley. And the Nashes aren't the only ones — there is also a second application for a home on 120 acres in the valley, north U S Highway 20, and a Deschutes County hearings officer has yet to issue a decision on it. Under state law, the Nashes must show that developing the land will not change farming practices or costs on nearby land. Deschutes County Code also requires them to show the land is unsuitable for producing crops or livestock Keith and Janet Nash argue that additional homes would benefit ranching operations and wildlife in the area. 'A losing battle' Keith Nash said at the May 14 County Commission hearing that he would like to have houses on all parcels in Evans Wells Ranch, where residents could act as "watchmen" against illegal off- roading on private property and other problems. Residents could also provide a year-round water supply for wildlife, the Nashes wrote in a letter to the county, similar to how the Nashes' water containers for their cattle often attract wildlife. But they aren't optimistic. "They just basically do a blanket denial on anything in Millican Valley," Janet Nash said. "It's a losing battle on our end." A Deschutes County hearings officer denied the Nashes' application in March, and they appealed their case to the County Commission. The commission held an initial hearing May 14, and Commissioner Dennis Luke said he expects it will hold another hearing and make a decision by the end of June. Luke said at the hearing he was concemed the Nashes' application could set a precedent for development. "This is an important valley," he said. "It has a lot of history." Environmental and land use advocates are also concerned about the potentially sweeping changes to the valley, with its unique wildlife habitat and history. Craig Miller, with the Oregon Natural Desert Association in Bend, said ranchers and farriers are becoming more interested in developing their land, as possible profits from land sales seem to outpace what they can earn through agriculture. "In the past, there wasn't a whole lot else that added value to the land but now that development values are increasing away from Bend, it gives land more value, which in turn makes the fie latgF — less appealing,,, Miller said. "It makes development much more appealing." A sparsely populated valley The Nashes' ranch sits in the middle of the flat, open valley of sagebrush and other scrub, which on Thursda) afternoon was patterned with sunlight and shadows fmm clouds. The valley lies to the east of Horse Ridge, a western summit where U.S. Highway 20 passes through, and it opens up to a huge expanse of sky as juniper trees thin out. A lake of ice filled the valley in prehistoric times, according to a sign on Horse Ridge, and evidence of American Indian encampments has been found near where Dry River once fed out of the lake. Vlillican Valley contains habitat for ;age grouse, pronghom antelope, leer, elk and the ferruginous hawk. The federal government is reviewing he sage grouse's status and could lecide to list the bird under the Endangered Species Act. k few buildings dot the Millican Valley. There is a paint ball range on he gravel road that leads to Evans Wells Ranch, and the owners of a piece of land to the northeast of the ranch along U.S. Highway20 have rpplied to mine for basalt gravel. k key test k key test for the Nashes' application to build a home on one if their parcels is whether the land s suitable for fanning and should -emain undeveloped. Deschutes bounty hearings officer Karen Breen found in a February decision hat the Nashes had not lemonstrated the parcel was msuitable for raising livestock, when their other land and grazing dlotments on federal land are taken nto consideration. ;till, the Nashes point to several ;hanges in the Millican Valley they ;ay are making ranching increasingly lifficult. Jff-highway vehicle use, which they ;ay spills over onto private land rom a nearby Bureau of Land Vlanagement trail system, disrupts rattle. People have also shot the \lashes' cattle with guns and arrows, filling about five, Janet Nash said. Dove hunters shooting at birds ;athered around the Nashes' water anks have scared away the cattle, he couple said, and they believe the tattle weighed an average of 25 .mounds less last year as a result. The Irop in weight cost the Nashes about $7,000, they wrote in a letter :o the county "People come out here and they just have the attitude that anything goes," Janet Nash said. The Nashes said while the county has so far kept them from changing what they do with their land, IS A farming life Although the Nashes cited these recent changes in the valley, they also acknowledged that making a living on agriculture there has never been easy. ," Janet Nash said of the homesteaders. Stephen Roth, a man who identified himself as a former Millican Valley rancher, wrote an e-mail to Deschutes County in support of the Nashes' application for the house. "I sold my ranch for a variety of reasons but the two main were conflicts with recreationalists, and profitability" Roth wrote, noting he owned 4,200 acres in the Millican Valley, and "some years I did well, but most years I had to supplement my income byworking off the farm." Wildlife and farming concerns Concerns among opponents of development in Millican Valley include the effects on farming in the area and impacts on wildlife habitat. "The off-road vehicle impacts are very large but they're reversible, whereas development out there might be more confined but it's more permanent," Miller said. Miller said the large amount of federal land in and around Millican Valley will limit how much land can be developed, but pressure to develop the area will increase as private land near Bend is built out. Carol Macbeth, the Central Oregon advocate for 1000 Friends of Oregon, wrote letters of opposition to the county on the Nashes' application and the other application to build a house nearby. Macbeth echoed one of f Miller's concerns — that "There's a tipping point once a certain number of houses are reached in a region, then it destroys the balance of the agricultural land base," Macbeth said. "We want to make sure that tipping point isn't reached in Millican." Hillary Borrud can be reached at 617-7829 or at hborrud@bendbulletin.com. Paul D. Dewey AttomeyatLaw May 30, 2008 Deschutes County Commissioners 1300 NW Wall Street Bend, OR 97701 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 fax (541) 383-3470 pdeweyabendcable. com Re: CU -07-93; Nash Nonfarm Dwelling Application Dear Commissioners: On behalf of Central Oregon LandWatch, I am writing to express our continued opposition to this proposed nonfarm development. It is interesting that both the Applicants and their supporter, Mr. Merrill, tout the advantage of having more houses in the area in order to monitor recreational and illegal use of grazing lands in the area. There is no evidence or basis to assume that the occupants of these nonfarm dwellings would actually take on a monitoring role. The interest of the Nashes and potentially Mr. Merrill is in getting permission for nonfarm dwellings so that these houses can be sold to other people to generate income. These dwellings are referred to as "nonfarm" dwellings because they are not associated with ranching; they are residential development. It is because of the impact of these nonfarm dwellings on ranching and resource lands and the danger of cumulative effects as more nonfarm dwellings get allowed that gives rise to the concern of materially altering the stability of the land use pattern of the area. Places like the Millican area can easily and quickly unravel. Ms. Green's analysis of this standard failed to consider a large enough impact area and failed to address all the reasons given in the Best decision for this concern. It is entirely appropriate for the Board to make a decision of denial on this basis. The suggestion by Mr. Merrill's attorney that the "generally unsuitable" standard should be "narrowed" to only consider if a house site is unsuitable is not supportable. The law clearly requires that the suitability standard apply to consideration of whether the parcel can be put to farm use in conjunction with other land. As was discussed at the Board's hearing, the proper forum for discussion of these proposals to convert resource land to rural residential development is in the context of reviews of the County's comprehensive plan. It is in that context that the Board could consider overall planning of the area and understand the cumulative impacts of non -resource development. • Page 2 May 30, 2008 The Nash application does not meet the current legal standards and should be denied. Thank you for this opportunity to comment. Please provide me with a copy of your decision when it is issued. Very truly yours, Paul Dewey cc: Board LIZ FANCHER, 47YORNfY Liz Fancher Kristen Q Williams, Associate Sue Stinson, Paralegal May 28, 2008 BOARD OF COUNTY COMMISSIONERS DESCHUTES COUNTY 1300 NW WALL STREET BEND, OREGON 97701 WILLIAM GROVES, PLANNER PLANNING DIVISION 117 NW LAFAYETTE AVENUE BEND, OREGON 97701 Re: CU -07-93; Nash Nonfarm Dwelling Application I am writing to you on behalf of Joseph Merrill, a resident of the Millican area of Deschutes County. Mr. Merrill's home was approved as a lot of record dwelling. Mr. Merrill agrees with the position taken by former area rancher Stephen Roth and ranchers Charles and Janet Nash that the approval of a nonfarm dwelling for the Nash property would benefit area grazing operations by monitoring recreational and illegal use of grazing lands in the area. The Millican area is used for a variety of active uses. It includes gravel mines, off-road vehicle use, and cattle grazing on large tracts of non -irrigated, unproductive land. Much of the area is vacant, unproductive land. As noted by County Planner Will Groves "a 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." Much of the land in the area is federal land — land that is not affected by the County's decision of the Nash application. The County's imposition of a 320 -acre minimum lot size for farm dwellings makes it very difficult to establish ranch homes in the area. Only one lot within one mile of the Nash property is large enough to qualify for a ranch dwelling, assuming it can comply with the farm management plan requirements of the County code. There are just five lots in the study area within a one -mile radius around the Nash property. Any homes in the area must be located within 300 feet of a road where they will have a very limited impact on grazing and wildlife use of the area or another location that does not interfere with wildlife protection. As a result, a decision to approve the Nash application will not destroy the limited cattle grazing operations that occur on some lands in the area. RECEIVED BY: (tee 644 NW BROADWAY STREET • BEND, OREGON • 97701 PHONE: 541-385-3067 • FAX: 541-385-3076 MAY 2.8 2008 May 28, 2008 Cattle operations use federal lands, and private lands, for grazing. Homes are not allowed on federal land. This means that private lands in the area offer the only opportunity to provide homes for ranchers and for other residents. As determined by Hearings Officer Karen Green, 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." Best Decision/Stability of Land Use Pattern In the event that you decide that you must deny the Nash application, we ask that you do so for the reasons stated in the decision issued by Hearings Officer Karen Green and that you retain findings that the approval of a nonfarm dwelling on the Nash property will not materially alter the stability of the land use pattern of the area. We agree with Ms. Green's legal opinion that State administrative rules require a site and fact -specific analysis of each nonfarm application and the area that surrounds that property. The application of a blanket policy of denial for any nonfarm dwelling application in the area based on the County's Best decision is not legally correct. Ms. Green correctly determined that the Best decision does not preclude approval of the Nash application. State laws regarding EFU zones have changed since the Best decision was issued. Also, the facts in each case, such as the appropriate study area and site characteristics, are different and are what should serve as the basis for each decision. Deschutes County is not required by a decision in one case to reach the same result in another, similar case. Prior local land use case decisions do not act as binding precedent for new applications. As noted by the Oregon Land Use Board of Appeals, "Oregon's land use adjudication is `incompatible with giving preclusive effect to issues previously determined by a local government tribunal in another proceeding." Nelson v. Clackamas County, 19 Or LUBA at 140. Generally Unsuitable for Farm Use Part of Parcel Analysis We believe it is possible that the Board may approve the application by narrowing the "generally unsuitable" analysis provided by the Hearings Officer from the entire property to the portion of the Nash property proposed for development of the home. This is allowed by the County and State laws that govern this case. The Nash family asked the County to find that a portion of their 160 -acre property, not the entire property, is generally unsuited to farm use. The County's review, however, focused on whether the entire 160 -acre property is generally unsuited to farm use. We believe that certain facts about the home location may be sufficiently different from the rest of the Nash property to merit approval of the nonfarm dwelling. The home's location close to Ford Road and the presence of a rock outcropping in the southeast part of the May 28, 2008 subject property may be factors applicable to the home site that may merit approval of the application. More Restrictive Reading ofSuitabilitv Standard than Required by State Law We understand that the County's legal counsel has opined that the fact that the County code separates one part of the suitability criteria contained in State law from another alters the meaning of the law and creates a higher legal standard for the Nash application than required by State law. The State law provides: "A lot or parcel or portion of a lot or parcel may 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" Legal counsel says under County Code "an 'in conjunction' analysis must be undertaken even if size and location are not part of the factors considered in determining the suitability of the property for livestock or farm crops."' As the separation of the State law language is a County action, the County may interpret the meaning of that act. It is our understanding that the County's EFU zone was written to implement the requirements of State law for farm zones but not to exceed them. We ask that you interpret your code to be consistent with State law rather than to adopt more stringent standards for EFU properties in Deschutes County. In the event you determine that Deschutes County's Code may impose a more stringent requirement than State law, we believe the separation of the requirements in the County code does not expand the scope of the "in conjunction" analysis beyond a consideration whether the size or location of a property prevents it from being suited to farm use. This is true because the use of land in conjunction with other parcels is not relevant to a review of the other factors that the County must use to decide if land is "unsuitable." The County code, DCC 18.16.050(G)(1)(a)(iii) requires: "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." As a matter of logic, if a property is unsuitable for farm use due to terrain, adverse soil or land conditions, drainage and flooding or vegetation, it's combination with other equally unsuitable land will not make it suited to farm use. This means that, as is the case under State law, location and parcel size are the only unsuitability factors properly considered in May 27, 2008 e-mail from Will Groves to landuse@coauide.com. Mr. Groves attributes the quoted comments to the County's legal counsel. May 28, 2008 determining whether combining the Nash property with other lands makes it suitable for farm use. Economics a Relevant Consideration in Determining Unsuitability In deciding whether property is unsuitable for the production of livestock, the economics of farming are an integral part of answering the question. The County can and should consider the poor soils, the low rainfall in the area, the harm done by erosion, the fact that a large amount of similar land in the area is not used for farm use, the terrain and the low amount of vegetation produced by the Nash property and adjacent lands when deciding whether the home site on the Nash property is generally unsuitable for the production of livestock or other farm use. The Hearings Officer's decision correctly recognizes the fact that economics of farm use are a factor in determining whether land is unsuitable for producing livestock. When it is not possible for a farmer to make any type of income from producing livestock on a tract of land, we believe it is appropriate to find that the tract is unsuitable for producing livestock. When a farm operation becomes a known money loser on land of a certain type, the land is not going to be placed into farm use regardless of how the County chooses to classify the land. In the modern era when gasoline costs have skyrocketed, it may well be that a rancher would be hard pressed to pay his gasoline bill to monitor his herd and to transport cattle to and from market from the meager earning derived ranching on non- irrigated, low quality land. Thank you for your consideration of our comments. Please provide us with a copy of your decision when you issue it. V� Liz Fancher Attorney at Law LF/ss cc: Danielle Strome Joseph Merrill Laurie Craghead William Groves To: Laurie Craghead Subject: RE: Nash - my comments From: Laurie Craghead Sent: Monday, May 26, 2008 12:26 PM To: William Groves Subject: Nash - my comments Clark v. Jackson County, 19 Or LUBA 220 (1990) appears to be right on point with the Nash case and, thus, appears to suppose exactly what the hearings officer found. That finding was that, if the property can be put to farm use in conjunction with another parcel, then a nonfarm dwelling is not allowed. That case, however, was overturned on appeal with the Oregon Supreme Court saying that LUBA overstepped its bounds when reviewing the county's interpretation of its own code. Additionally, there is Epp v. Douglas County, 46 Or LUBA 480 (2004) and Stefan v. Yamhill County, 21 OR LUBA 18 (1991) in which LUBA found that the "in conjunction" language is only applicable if size and location are factors in determining the suitability of the subject parcel for farm use. If the property is unsuitable regardless of whether it is combined with another, then the statute does not require the "in conjunction" review. Given that the Board could conceivably find facts that would allow them to find that the parcel is unsuitable without discussing size and location, on the surface, Epp and Stefan would allow an approval of the dwelling. Epp and Stefan , however, were based on the statutory language in ORS 215.284(b) that says that the "in conjunction" analysis is applicable only if the lot or parcel is found to be unsuitable "solely because of size or location." DCC 18.16.050(G)(2)(b), however, separates the two provisions. The first sentence is consistent with the statute in that is says that " 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." The code is different from the statute, however, in that the "in conjunction" analysis is a stand alone requirement not dependent on an finding regarding the size of the property. Thus, an "in conjunction" analysis must be undertaken even if size and location are not part of the factors considered in determining the suitability of the property for livestock or farm crops. Also, in Dority v. Clackamas County, 23 Or LUBA 384 (1992), LUBA found that a suitability determination "does not require a finding that a reasonable and prudent farmer can put the subject property to profitable agricultural use." Thus, whether or not a profit can be made from "livestock or farm crop" would not be a final determining factor. As a result of the above case review and after reviewing the documents and listening to the Board hearing recording, I find nothing to reverse the hearings officer's findings of unsuitability. This is especially true in light of the testimony by 1000 Friends and the applicants themselves that this property is like all the property in the area on which several are engaged in farm uses. There is also the letter from Stephen Roth mentioned in the April 11, 2008 memo to the Board in which Mr. Roth said that it could at least be put to marginal farm use when combined with a BLM grazing right, which the applicants have. If the Board desires to find this property unsuitable, the Board will need to direct staff to which facts were persuasive to the Board in finding that the property is unsuitable for farm use even when combined with other property that is being used for farming. Laurie Craghead Assistant Legal Counsel - Deschutes County (541)388-6623 THIS ELECTRONIC TRANSMISSION IS CONFIDENTIAL. IN PARTICULAR, IT MAY BE PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IS INTENDED ONLY FOR USE OF THE INDIVIDUAL OR ENTITY NAMED. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION OR ANY ACCOMPANYING DOCUMENTS. IF YOU HAVE 6/11/2008 RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THIS OFFICE AND DELETE THE E-MAIL. 6/11/2008 May 22, 2008 Deschutes County Commissioners c/o Will Groves 117 NW Lafayette Ave Bend, Oregon 97701 Dear County Commissioners: Alex Robertson Commercial Division John L. Scott Bend Ranching in the Millican Valley is inpracticable. I make this statement based upon my 21 years involved in ranching and commercial real estate. No water and poor dirt make the land there extremely unproductive and commercial ranching unsustainable. I could not recommend property in the Millican Valley for investment purposes based upon my capitalization analysis because there is simply no net profit. After 21 years in Central Oregon real estate I conclude there are no purchasers for the Nash ranch for use as a commercial enterprise. Existing ranchers are looking for exit strategies knowing ranching alone is not financially feasible in that area. The highest and best use, in fact the only logical use, of the Millican Valley is for rural homesites. Sincerely, Alex Robertson Alex Robertson - Broker Cell: 541-280-2117 Home: 541-388-3949 Email. alexrobertson@johnlseott.com III CONC „--1314456 0) fe P'm Its pAy 00 A„ m ' n@llf' Cr, i`9 w E 1't" r0 BEFORE THE BOARD or COUNTY COMMISSIO NERSRS FOR DBSCHOTES COUNTY In the Matter of the Application of Wayne & Irma Best for a Nonfarm Dwelling in an EFU-320'Zone. A. Basic Findings: 1. Applicants are Wayne and Irma Best. ).. FINDINGS AND DECISION ) CU -92-169 ) 2. The applicants are requesting approval of 'a Conditional Use Permit•for a nonfarm dwelling on a 10 -acre parcel..•''. 3.... The subject property is located at 57757. Spencer Wells Road, :Bend, and identified'on Deschutes County Assessor's Map-. #19-14-25 as tax lot.#802. The applicants are the owners" of the subject property. The property is zoned Exclusive Farm Use (EFU-320), and 'is designated as Agriculture on the Deschutes County Comprehensive Plan. The.site is also within a Landscape Management Combining Zone (LM) and a Wildlife Area Combining Zone (WA). 4. A Public Hearing was held on this matter before the County Hearings Officer on December.1, 1992. The Hearings Officer issued a decision of approval with conditions on January 11, 1993. 5. This application was subject to Order No. 92-074, which called all dwelling applications in EFU Zones submitted between July 20, 1992 and December 7, 1992 up for review by the Deschutes County Board of Commissioners. A public hearing was held before the Board on February 10, 1993. The Board kept the record open until February 17, 1993. On February 17, 1993, a letter of opposition to. this request was received from Jen Twining. At this time, the Board decided to reopen the Public Hearing on March 17, 1993 to allow the applicants time to respond to issues raised in the letter of opposition. On March 17, 1993, the applicants submitted arguments in response to the letter of opposition, as well as information regarding open grazing from the Bureau of Land Management (BLM). 6. On April 7, 1993, the Board made a decision to deny the application and directed staff to develop findings and a decision supporting their decision. FINDINGS & DECISION - CU -92-169 Page 1 111 7. The recordin this matter includesthe exhibits listed in the County Hearing Officer's Findings and Decisions dated January 11, 1993 (which list is hereby incorporated by reference), materials submitted by Jen Twining for inclusion in the record before the Board, and materials submitted by the applicants before the Board. B. Applicable Criteria: 1. The Board finds that review of this nonfarm dwelling request is subject to the general nonfarm dwelling criteria found at DCZO 18.16.050(E). C. Findings of Fact: 1. General Description of Property. The property contains 10 acres and 'is rectangular in shape. The property' is' located on.•.Spencer,Wells Road,:just off of U.S. Highway.20. The subject property is generally flat, with some gentle slopes. A portion of the Dry River crosses the western portion of the property from north to south. The Dry River' is designated as a 100 year Floodplain by the Federal • Emergency Management. Agency (FEMA) Floodplain Maps (FIRM Map :-• # 375, effective date 'August 16, 1988). The proposed location of the dwelling does not fall within the floodplain area. Vegetation on the subject site consists of sagebrush, rabbitbrush and sparsely growing grass. The subject property does not have water rights and is not on farm deferral. '2. General Nature of the Area. Surrounding properties 'are primarily vacant lands, consisting of sagebrush, rabbitbrush and sparse grass. The surrounding properties are in both private and federal ownership. There is one (1) single-family dwelling in the surrounding area. This dwelling is located on the north side of Highway 20, near the subject site. According to the County Assessor's records, this dwelling was established in 1978. South of the subject site is the Deschutes National Forest. West of the site is a surface mine, which is located far enough from the site that it does not cause the subject site to be located within a Surface Mining Impact Area Combining Zone. Four miles east of the site is Millican. The subject site is located just southeast of Horse Ridge Summit. 3. . Nature of Agricultural Uses in the Surrounding Area. • Within one (1) mile of the subject parcel are 1,181.02 acres of privately -owned land, with a median parcel size of 10 acres, and 28,217.2 acres of publicly -owned land. The only farm use existing in the area is open grazing for cattle on 'BIM land. 4. Agricultural Capability of the Subject Parcel. The Board finds that the parcel has one major soil unit, which is as follows: FINDINGS & DECISION - CU -92-169 Page 2 Gardone-Borbobey Complex (Soil type # 55A) The Board finds that this soil has an agricultural soil capability .classification of 6-E nonirrigated, and is not rated for irrigated soils.. This soil is not rated by the soil Conservation Service (SCS) for crop or livestock production. According to the SCS, Class 6 soils have severe limitations that make them generally unsuited to cultivation, and that limit their use largely to pasture or range, woodland, or wildlife. This rating system ranges from 1 to 8, with 1 being the best soils and 8 being the poorest. Vegetation on the subject parcel consists of sagebrush, rabbitbrush, and sparse growths of grass. The Board finds that there is no recent or current use of the property for grazing, although the property is located within the Horse Ridge Allotment for ELM open grazing. This area has historically been used for the open grazing of cattle. The Board finds that there is currently no water available for irrigation on the property. 5. Natural Resource Values of the Subject Property. The Board finds that the subject. property is located within designated Antelope Range and Sage Grouse Range. The Board also finds that theh site is located within a Landscape Management designation, associated with Highway 20. The natural resource values associated with agricultural capabilities are set forth in paragraph 4above. 6. Natural Hazards on the Subject Property. The Board finds that a portion of the subject property is located within a 100 year flood plain, which is associated with the Dry River. The proposed location of the nonfarm dwelling is not located within the flood plain.: 7. Availability of Services. The subject parcel is served by Spencer Wells Road. The Board finds that the capacity of Spencer Wells Road is 15,000 vehicle trips per day. The Board finds that the current use of Spencer Wells Road is approximately 50. vehicle trips per day. The Board finds that the subject parcel is located outside of any fire protection district. The Board finds that the Central Electric Cooperative, Inc. has the ability to serve the subject property. The Board also finds that there are no water or sewer systems available to the subject property. D. Conclusionary Findings: 'ECHO 18.16.050(E) Nonfarm Dwelling Criteria 1. 18.16.050(E)(a)(1). Is compatible with farm uses described in ORS 215.203(2) and is consistent with the intent and purpose set forth in ORS 215.243. FINDINGS & DECISION - CU -92-169 Page 3 • ti 1.1. •mpatibility with Farm s. LUBA caselaw .requires that the Board identify farm uses in the area and explain the relationship between the location of the farm uses and the subject parcel. 1.1.1. Based on the 320 -acre minimum lot size of the zone and the parcelized nature of the surrounding area, the Board finds that the area to be considered for the purpose of establishing compatibility need not be larger than a one (1) mile radius surrounding the property. 1.1.2. The area surrounding the subject parcel has historically been used for the open grazing of cattle. The subject property is located within the Horse Ridge Allotment, according to information from BEM. Open grazing occurs on public lands. Unless private lands are fenced to keep cattle out, cattle will tend to stray • onto privately owned parcels as well. The majority of acreage in the surrounding area is in public ownership (28,217.2 acres or 96%). According to the Narrative grazing schedule from BLM, the average use in the Horse Ridge Allotment in the past has been 4,618 AUMs. This amount is to be reduced by 47%, to 2,275 AUMs to provide more vertical grass cover for sage grouse. Compatibility problems associated with livestock operations of this nature consist of keeping range cattle off private property, keeping animals associated •with dwellings from on the subject property, noise, dust and odor. Based on Assessor's records and visual observation, there do not appear to be any existing dwellings within the Horse Ridge Allotment. The only dwelling existing within four (4) miles of the subject site is located across Highway 20 from the subject property, and outside of the Horse Ridge Allotment. Based on this finding, the Board finds that the introduction of a nonfarm dwelling would not be compatible with the farm use characterizing the area. 1.2. Consistency with ORS 215.243. This provision requires that the Board identify which of the policies enumerated in ORS 215.243 are relevant and addressthe relevant policies. 1.2.1. ORS 215.243 reads as follows: "The legislative assembly finds and declares that: (1) Open land used for agricultural use is an efficient means of conserving natural resources that constitute an important physical, social, aesthetic, and economic asset to all of the people of the state, whether living in rural, urban, or metropolitan areas of the state. (2) The preservation of a maximum amount of the limited supply of agricultural land is necessary to the conservation of the State's economic resources and the preservation of such land in large blocks is necessary in maintaining the. FINDINGS & DECISION - CU -92-169 Page 4 agricultura]onomy of the state and.or the assurance of adequate, healthful and nutritious food for the people of this state and nation. . (3) Expansion of urban development into rural areas is a matter of public concern because of the unnecessary increases in costs of community services, conflicts between farm and urban activities and the loss of open space and natural beauty around urban centers occurring as the result of such expansion. (4) Exclusive farm use zoning as„ provided by law, substantially limits alternatives to the use of rural land and, with the importance of rural lands to the public, justifies incentives and privileges offered to encourage owners of rural lands to hold such lands in exclusive farm zones." 1.2.2. The .Board of County .Commissioners, in the Findings and 'Decision for CU -92-6 and T-92-5, found that item (1) expresses the Legislative Assembly's preference for preserving agricultural land as a means of conserving natural resources; it does .not set any particular review standards. With respect to item (2), findings on the suitability of the subject parcel for producing farm crops or livestock are provided in section 1.4, below. Where findings show that the subject parcel is unsuitable for 'producing crops or livestock, then it can also be found that the subject parcel is not needed to maintain the .agricultural economy of the state, satisfying this aspect of ORS 215.243. With respect to item (3), this request for a single-family dwelling on an existing parcel does not constitute an urban level of development. This issue will be further discussed in sections 6 and 8, below. Findings to address conflict and compatibility are provided in sections 2 and 3, below. With respect to item (4),, the state offers a special assessment as an incentive and privilege to encourage owners of rural lands to hold such lands in exclusive farm use zones. If a property is, or has been, receiving a special assessment, and the owner applies for a nonfarm dwelling, then, prior to issuance of a building permit for the dwelling, the applicant must disqualify the property pursuant to ORS 215.236. The requirements of ORS 215.236 are codified in Section 18.16.050 (E)(c), providing consistency with this aspect of 215.243. 2. 18.16.050(E)(a)(2). Does not seriously interfere with accepted farming practices on adjacent lands devoted to farm uses. 2.1. This criterion requires that the Board determine (1) which adjacent properties are in farm use; (2) what are FINDINGS A DECISION - CU -92-169 Page 5 3- the preseniliand potential farm prances, commercial or otherwise; and (3) how the presence of a nonfarm dwelling would interact with those farming practices. 2.2. For the purposes of this analysis, the Board identifies an area consistent with that identified in the compatibility analysis above in section 1. 2.3. For the purposes of this analysis the Board identifies the subject area as being historically used for open grazing for cattle. The analysis with respect to this area is the same as set forth for the compatibility analysis. Accordingly, the Board finds that the .introduction of -a mmnf�rm dwelling could seriously interfere with accepte fora practices 3n a 3. 18.16.050(E)(a)(3). Does not materially alter the stability of the overall land use pattern of the area. . 3.1. The so-called Sweeten v. Clackamas County analysis enunciated 'by LUBA in a case by that name requires a three-step approach for addressing this criterion: (1) identification of a reasonably definite area of :analysis zoned EFU; (2) examination of the nature of the -uses -.in that •:• area, whether farm or nonfarm; and, (3) a conclusion as to whether the standard•is being met or not. 3.2. The Board finds that an appropriate area for analysis under this standard extends one (1) mile from the edge of the subject parcel. Consistent with LUBA caselaw on the subject, the Board analyzes only those lands zoned EFU. 3.3. The Board finds that there are a total of 45 tax lots (all are zoned EFU) within one (1) mile of the subject property, including the subject parcel. Of these 45 tax lots, 11 are in public ownership and 34 are in private ownership. In terms of acreage, there are 28,217.2 acres -of public land (96$) and 1,181.02 acres of private land (4%). Within one mile of the subject site there is only one dwelling, which is located on tax lot #1800, Assessor's Map No. 19-14. Currently, the density in the area of review is one dwelling unit per 29,398.22 acres. The proposed density would be one dwelling unit per 14,699.11 acres. The -median parcel size of privately owned land in the area is 10 acres. 3.4. 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. - = reason, the Board finds that the •ro•osed ponfarm dwelling wou - - e e in o•uct on of ;n incom•atible use _ - .on exist. Approval of the proposed dwelling could serve to set a precedent for future nonfarm dwellings and, thus, tip the balance from resource to nonresource use. Therefore, the Board finds that approval of this nonfarm dwelling would alter the stability FINDINGS & DECISION - CU -92-169 Page 6 ti of the ove4111 land use pattern of tAllarea by increasing ,density and causing compatibility problems, as well as set a precedent for similarly situated parcels. 4. 18.16.050(E)(a)(4). Is situated on land generally unsuitable for the production of farm crops and livestock, considering the terrain, adverse soil or land conditions, drainage and flooding, vegetation, location and size of tract. 4.i. In order for the Board to find that this standard has been met, it must determine that the parcel as a whole is generally unsuitable for the production of farm crops and livestock. .This finding can be made based upon one or a combination of the factors set forth in the criteria above. Based upon the findings set forth below, the Board concludes that the parcel as a whole is• generally unsuitable for the production of 'farm crops and livestock. 4.2. The Board finds, according to the SCS Single Phase. Interpretation Sheets, that the agricultural soil capability classification for the soil on the subject site is 6-E. Class 6 soils are categorized by the SCS. as land having severe limitations that make them generally unsuited to cultivation, and that limit their use largely to pasture or range, woodland, or wildlife. This rating system 'ranges from 1 to 8, with 1 being the best soils and 8 being the poorest. 4.3.. The soil on the subject site is not rated by the SCS for crop or livestock production. The subject property currently has no irrigation rights. The Board finds that the only water available in the area is through wells or springs. There is not a spring located on the applicants' property and the applicants have not indicated a definite time frame for the drilling of a well. The Board finds that with no irrigation on the subject site, it would not be feasible or realistic to consider this property for commercial crop production. 4.4 SCS Single Phase Interpretation Sheets provide information regarding the capability of soils to provide forage for livestock as dry rangeland. Ten acres of unirrigated soil is capable of an average potential production of native plant life of 700 pounds (lbs.) per acre dry weight in a normal year. Not all of this will be usable forage, although the amount of usable forage is not calculated for this soil in the SCS Rangeland Soils Productivity Summary Sheet. one AUX (animal unit) requires 900 lbs. of forage for a one month period. Over a typical five month grazing season, there would not be enough forage for even one animal unit on a sustainable annual basis. The Board finds that, due to the soils and vegetation on the subject parcel, as well as the lack of irrigation to the site, the parcel is generally unsuitable for livestock. FINDINGS & DECISION - CU -92-169 Page 7 4.5. Board finds that for •purposes of making ,its decision on suitability it does not need to consider whether the property could be joined with other parcels, since it's finding of unsuitability does not rest on considerations of size. 5. 18.16.050(E)(a)(5). 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 many other factors that may affect the livability of the nonfarm dwelling or•the agriculture of the area. 5.1. The Board finds that the proposed dwelling would not be within one quarter mile of the uses listed in:the above criterion. 6. 18.16.050.(E)(b)(1). Immediate and future impact on public services, existing road systems, traffic demands and irrigation distribution systems. . 6.1. Impact on Public Services. With .respect• to the immediate and future impact on public services, the Board finds based upon the Public Services discussion in the Plan that the term "public services" includes fire and police protection, public utilities, schools, libraries and solid waste disposal. 6.1.1. With respect to police and fire services, the Board finds that the subject property is not located within the boundaries of a fire protection district and is in an area that receives minimal police protection. There is only one other dwelling located within one mile of the subject. site. The Board finds that the proposed dwelling would result in an increased demand police and fire protection in the area, for which there is currently not a great demand. 6.1.2. With respect to public utilities, the Board finds that the Central Electric Cooperative, Inc., has indicated their ability and intent to provide electric service to the property. 6.1.3. The Board finds that with respect to schools, this area is not currently served by bus service to local school districts. The Board finds that an increase in the number of dwellings in this area could result in an increase in the demand for new bus routes. 6.1.4. The Board finds that with respect to libraries and landfills, that the addition of one dwelling would not in and of itself increase the demand on these facilities. FINDINGS & DECISION - CUJ-92-169 Page 8 • • c: 6.2. Allot on Road Systems/Traffl Based on comments from Gary Judd of the Deschutes County Public Works Department, the Board finds that Spencer Wells Road is capable of supporting 15,000 vehicle trips per day and currently has a use level of 50 vehicle trips per day. With respect to immediate and future impact on existing road systems and traffic demands, the Board finds that the proposed dwelling would not have an adverse impact on existing road systems or traffic demands. 6.3. Impact on Irrigation Systems. With respect to immediate and future demands on irrigation systems, the Board finds that due to the absence of an irrigation district in the area and the unsuitability of the parcel for crop production, -it is unlikely that there would be any impact on 'irrigation distribution systems. • 7. 18.16.050.(E)(b)(2). Soil type and its development limitations, including susceptibility to elides, erosion,, flooding and drainage. 7.1 The Board finds that there are no identified hazards associated with the soils on this property, aside from the location of a 100 year flood plain on a portion of the subject property. The proposed location of the dwelling is outside of the flood plain area. The scale of the proposed development •'is of such a limited nature that there would' be little impact in the way of erosion or flooding during construction. 8. 18.16.050(E)(b)(3) An adequate quantity and quality of water and either subsurface or other sanitary disposal system. 8.1. Based on the information presented. by the applicants, their proposal is to provide domestic water to the property through a cistern. The Board finds that .it would be necessary for the applicants to haul water, or hire someone to do so, from Bend. In the alternative, the possibility exists for drilling a well on the subject property; the applicants have not indicated a definite time frame for doing so. Based on these findings,. the Board finds the method of water provision proposed by the applicants to be inadequate. 8.2. The Board finds that the County Environmental Health Division would require a septic site evaluation; to date, a site evaluation has not been conducted. 9. 18.16.050(E)(c). Pursuant to ORS 215.236, a nonfarm dwelling on a lot or parcel in an EFU 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 FINDINGS & DECISION - CU -92-169 Page 9 has been dilified for special asseflent 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 additionaltax or penalty imposed by the County Assessor as a result of disqualification has been paid. 9.1 The Board finds that, according to Assessor's records, the subject property is not receiving farm tax deferral. E. Decision on Nonfarm Dwelling. Based upon all the Conclusionary Findings set forth above, the Board denies the applicants' request for a nonfarm dwelling on.the subject pjcel. DATED this 7/4 day of ATTEST: 1993. s ng ryyr /��/11 . i i. s.O Recording B. H. SLAUGHTER, Commissioner DSW:mic FINDINGS & DECISION - CU -92-169 Page 10 i SHELLEY WETHERELL, JANELL STRADTNER, and FRIENDS OF DOUGLAS COUNTY, Respondents on Review, v. DOUGLAS COUNTY, Respondent on Review, and GREAT AMERICAN PROPERTIES LIMITED PARTNERSHIP, Petitioner on Review. SHELLEY WETHERELL, Respondent on Review, DOUGLAS COUNTY, Respondent on Review, and RANDY WALKER and DANNETTE WALKER, Petitioners on Review. (LUBA 2005-045, 2005-075; CA A129999, CA A130181; SC S53437, S53438) (Consolidated for argument and opinion) On review from the Court of Appeals.* Argued and submitted November 1, 2006. Stephen Mountainspring, of Dole, Coalwell, Clark, Mountainspring, Mornarich & Aitken, P.C., Roseburg, argued the cause and filed the briefs for petitioners on review Great American Properties and Randy and Dannette Walker. Carrie A. Richter, of Garvey Schubert Barer, Portland, argued the cause for respondents on review Shelley Wetherell, Janell Stradtner, and Friends of Douglas County. Denise G. Fjordbeck, Assistant Attorney General, argued the cause and filed the briefs for amicus curiae Land Conservation and Development Commission. With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General. Andrea Bushnell, Salem, filed the briefs for amicus curiae Oregon Association of Realtors. Respondent on review Douglas County did not appear. BALMER, J. Before De Muniz, Chief Justice, and Carson, Gillette, Durham, Balmer, and Kistler, Justices.** The decisions of the Court of Appeals are affirmed in part and reversed in part. The decisions of the Land Use Board of Appeals are reversed, and the cases are remanded to the Land Use Board of Appeals for further proceedings. *Judicial review from Land Use Board of Appeals. 204 Or App 732, 132 P3d 41 (2006); 204 Or App 778, 132 P3d 50 (2006). **Carson, J., retired December 31, 2006, and did not participate in the decision of this case. Walters and Linder, JJ., did not participate in the consideration or decision of this case. BALMER, J. These two separate land use disputes, which we consolidated for argument and decision, require us to decide the validity of an administrative rule that prohibits considering "profitability" and "gross farm income" in determining whether land is "agricultural land" that must be preserved under Goal 3 of Oregon's land use planning policy. Petitioners Great American Properties Limited Partnership (Great American) and Randy and Dannette Walker (the Walkers), owners of separate parcels of land in Douglas County, challenged decisions of the Land Use Board of Appeals (LUBA) that relied upon that rule. The Court of Appeals held that the rule's prohibition on considering gross farm income conflicted with the statutory definition of "farm use" that is incorporated in Goal 3 and, therefore, that the rule was invalid in part; however, the Court of Appeals upheld the rule's prohibition of the consideration of profitability. For the reasons that follow, we conclude that both the prohibition on considering gross farm income and the prohibition on considering profitability are invalid. We therefore affirm in part and reverse in part the Court of Appeals decisions in both the Walkers' case and the Great American case, and we remand those cases to LUBA. FACTUAL BACKGROUND The facts that are pertinent to the issue before us are undisputed. For years, Douglas County has zoned the two properties at issue here for "exclusive farm use -- grazing" and has designated them in the county's comprehensive plan as "farm forest transitional." Petitioners each applied to the county for changes in the zoning designation and comprehensive plan, arguing that their properties no longer should be classified as agricultural or forest lands and no longer should be set aside exclusively for farm or forest uses under state-wide planning goals. They contended that the lands were no longer productive and could not profitably be used for farming or grazing. They also asked the county to change the existing zoning designations to allow the creation of five -acre rural residential lots on their properties. Several individuals and an organization known as Friends of Douglas County appeared in the proceedings before the county to oppose the applications. The county, however, granted the applications. The county's decisions turned, in part, on expert assessments of each property that concluded that neither parcel of land could be farmed for profit at a commercial level of productivity. With regard to Great American's property, the county adopted the experts' findings that, in light of the relative infertility of the property's soil, its shallowness, and lack of irrigation in the area, the "subject property may well be suitable for farm use as a lifestyle, but is poorly suited for farm use to make a profit." Among other things, the experts stated that, while 12 percent of the 160 -acre parcel was suitable for growing grapes, it nevertheless would be "impossible to establish a commercial vineyard on the subject property" as a whole. Experts also opined that, although the property could support an average of 17 animal units per year through grazing, that number of livestock was "far below that of accepted farming practices for livestock grazing in Western Oregon." As to the Walkers' property, experts made similar assessments, concluding, among other things, that (1) terrain and soil limitations made the property unsuitable for general crop farming, including "commercial vineyard or Christmas tree production"; and (2) the 26 -acre parcel's grazing capacity of approximately nine cattle per year "does not meet farm use standards because of the low productivity." Based on those findings, the county concluded that neither property qualified as "agricultural land" under OAR 660-033-0020(1)(a)(B) or (C), or (3)(b). (1) The county granted petitioners' requests that the comprehensive plan and zoning map designations for the properties be changed to allow five -acre rural residential lots. PROCEEDINGS FOLLOWING COUNTY LAND USE DECISIONS Friends of Douglas County and two individuals who had appeared in the proceedings before the county, including Wetherell, appealed the county's decision with respect to the Great American property to LUBA. Wetherell appealed the county's decision with respect to the Walker property to LUBA. (2) LUBA remanded the county's rezoning determinations for both the subject properties, because it concluded that the county improperly had considered evidence that the properties could not be used profitably for farming or agricultural purposes. In both cases, LUBA based its decision, in substantial part, on OAR 660- 033-0030, an administrative rule aimed specifically at identifying agricultural land. Paragraph (5) of the rule provides: "Notwithstanding the definition of 'farm use' in ORS 215.203(2)(a), profitability or gross farm income shall not be considered in determining whether land is agricultural land or whether Goal 3, 'Agricultural Land,' is applicable." Under that rule, LUBA reasoned, direct consideration of the "profitability" of the land or of the "gross farm income" that could be generated from the land was improper when determining whether the land was, in fact, agricultural land that must remain zoned for that exclusive purpose. Because LUBA remanded to the county for it to determine whether the land was agricultural land without any direct consideration of profitability, LUBA did not consider Wetherell's alternative argument that the county improperly had based its decision on a determination that the land would not support "commercial" agriculture. Great American and the Walkers filed separate petitions for judicial review of the LUBA decisions, arguing that OAR 660-033-0030(5) was invalid because the rule conflicted with the statutory definition of "farm use" in ORS 215.203(2)(a). That definition provides, in part, that "'farm use' means the current employment of land for the primary purpose of obtaining a profit in money' by raising crops or animals or engaging in other farm activities. (Emphasis added.) Petitioners asserted that the rule, by barring consideration of "profitability" or "gross farm income," necessarily conflicted with the "profit in money" part of the statutory definition of "farm use" that is used in Goal 3. property, agreed. Wetherell v. Douglas County (A129999), 204 Or App 732, 132 P3d 41 (2006). (3) The Court of Appeals first noted that, under Goal 3, "agricultural land" encompassed, among other land, land in Western Oregon "suitable for 'farm use" and that Goal 3 expressly incorporated the definition of "farm use" in ORS 215.203(2)(a). (4) The court then observed that, in 1000 Friends v. Benton County, 32 Or App 413, 429, 575 P2d 651, rev den, 284 Or 41 (1978), it previously had defined "profit in money" in ORS 215.203(2)(a) to mean "gross income" and concluded that: "OAR 660-033-0030(5) is invalid as conflicting with Goal 3 insofar as it precludes consideration of either 'profitability or gross farm income' in determining whether land is 'agricultural land.' The rule's exclusion of consideration of 'gross income' is directly at odds with our holding in 1000 Friends that Goal 3's incorporation of ORS 215.203(2)(a)'s 'farm use' definition includes 'profit in money' which means 'gross income."' Wetherell (A129999), 204 Or App at 747 (emphasis in original). In a footnote, the Court of Appeals also stated that, to the extent that the reference to "profitability" in OAR 660-033-0030(5) could be read to mean profitability in the traditional sense of income minus expenses, its decision in 1000 Friends had upheld the rule's preclusion of profitability so defined. Wetherell, 204 Or App at 747 n 11. The Court of Appeals thus affirmed LUBA's conclusion that profitability could not be considered in determining whether the land was agricultural land. Id. (5) The Court of Appeals remanded both cases to LUBA, directing LUBA to "recraft its remand instructions to the county in light of our conclusion that OAR 660-033-0030(5) is invalid insofar as it precludes consideration of 'gross income."' Id. at 748 (footnote omitted); Wetherell v. Douglas County (A130181), 204 Or App 778, 132 P3d 50 (2006) (citing Wetherell (A129999) and reversing and remanding to LUBA for reconsideration). Although petitioners prevailed, in part, in the Court of Appeals, they nevertheless filed petitions for review, which we granted. As we describe in greater detail below, petitioners, supported by amicus curiae Oregon Association of Realtors, argue that the Court of Appeals erred in its interpretation of ORS 215.203(2)(a) and, therefore, in the remand instructions that it gave LUBA. In their view, the reference in ORS 215.203(2)(a) to "profit in money" means "net profit" --revenues minus expenses --rather than "gross income," as the Court of Appeals held, and they argue that the challenged rule is invalid in its entirety. Specifically, petitioners contend that, for the purposes of ORS 215.203(2)(a), "profit" has a tax -derived definition that refers -- as the Oregon Tax Court held in Everhart v. Dept. of Rev., 15 OTR 76 (1999) -- to net operating income after deducting operating expenses. They argue that "profit" should be read the same way here. Wetherell Commission (LCDC) (7) disagree with petitioners' proposed definition of "profit in money" as "profit" in the tax sense, and they agree with the Court of Appeals' rejection of that definition. However, they disagree with the Court of Appeals' conclusion that ORS 215.203(2)(a) permits the consideration of "gross farm income" and with that court's related holding that OAR 660-033-0030(5) in invalid to the extent that it prohibits consideration of "gross farm income." They argue that the disputed rule is valid in its entirety. LCDC asks this court to "hold that the rule is valid as to profitability@ and [to] affirm the decision of [LUBA] holding that the county improperly considered profitability in determining suitability for farm use." LCDC notes that, under Goal 3, "agricultural land" includes, in addition to specific soil classes that are particularly suited for farming, soils outside those classes that are nevertheless uiiab3o; rBztrg4itnatteicont tlifea OAR 660-033-0020(1)(a)(B) (emphasis added). LCDC then contends that, because the land at issue here falls within that "suitable for farm use" category, neither actual net profit nor gross farm income are appropriate factors to use in determining whether such property is agricultural land. Specifically, LCDC argues that the rule set out above focuses the "suitability" determination on the characteristics of the land itself and whether such land can be adapted for farming notwithstanding its current use. The characteristics of "profitability" and "gross farm income," LCDC maintains, are not only easily manipulated, but, more importantly, they are not inherent characteristics of land. Therefore, OAR 660- 033-0030(5) properly prohibits a factfinder from considering them in determining whether particular land is agricultural land for purposes of Goal 3. For that reason, LCDC argues, LUBA correctly decided this case. AGRICULTURAL LAND AND GOAL 3 We begin by emphasizing the specific issue before this court. We are not asked to determine whether the county's decision regarding petitioners' properties was correct or the weight to be given testimony that a particular property is "profitable" or not or whether it can generate "gross farm income" or not. Ratl tarsti pTeSefTfensf act t iva nut; C.i rFaa q _" uni P?op l3 ay to i gEteu[t F?E'� We turn to a brief overview of Oregon's agricultural land use policy. The legislature's policy regarding agricultural land was set out almost 35 years ago and seeks to preserve "a maximum amount of the limited supply of agricultural land" in the state. ORS 215.243. That statute provides: "The Legislative Assembly finds and declares that: "(1) Open land used for agricultural use is an efficient means of conserving natural resources that constitute an important physical, social, aesthetic and economic asset to all of the people of this state, whether living in rural, urban or metropolitan areas of the state. "(2) The preservation of a maximum amount of the limited supply of agricultural land is necessary to the conservation of the state's economic resources and the preservation of such land in Targe blocks is necessary in maintaining the agricultural economy of the state and for the assurance of adequate, healthful and nutritious food for the people of this state and nation. "(3) Expansion of urban development into rural areas is a matter of public concern because of the unnecessary increases in costs of community services, conflicts between farm and urban activities and the loss of open space and natural beauty around urban centers occurring as the result of such expansion. - "(4) Exclusive farm use zoning as provided by law, substantially limits alternatives to the use of rural land and, with the importance of rural lands to the public, justifies incentives and privileges offered to encourage owners of rural lands to hold such lands in exclusive farm use zones." ORS 215.243 (emphasis added). adopting land use planning "goals" that "set out broad objectives for land use planning in Oregon." Save Our Rural Oregon v. Energy Facility Siting, 339 Or 353, 361, 121 P3d 1141 (2005); see also ORS 197.225 (LCDC "shall adopt goals and guidelines" for government agencies to use in preparing comprehensive land use plans). The legislature also authorized LCDC to adopt rules to implement the land use planning statutes and goals, ORS 197.040(1)(b), and all parties agree that LCDC's rules are valid only if they are consistent with both the applicable statutes and goals. See City of West Linn v. LCDC, 200 Or App 269, 275-76, 113 P3d 935, rev den, 339 Or 609 (2006) (so stating, noting that goals occupy a "preferred position" over rules). Pursuant to the legislature's mandate, LCDC has created and implemented 19 goals for comprehensive planning in Oregon. (8) At issue in this case is Goal 3 (Agricultural Lands), which is meant to facilitate the preservation of agricultural land, as directed by ORS 215.243. Goal 3 provides, in part: 191 "Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state's agricultural land use policy expressed in ORS 215.243 and 215.700."11° In the definition section of Goal 3, "agricultural land" is defined, as noted previously, to include land that consists predominantly of certain soil types "and other lands which are suitable for farm use" taking into consideration various factors. The dispute at issue here relates to the "suitable for farm use" aspect of Goal 3. "Farm use" in Goal 3 is defined simply "as set forth in ORS 215.203," a statute that we quoted previously. Or at n 4 (slip op at 5 n 4). With that background, we return to the issue that this case presents. Under Goal 3, land must be preserved as agricultural land if it is suitable for "farm use" as defined in ORS 215.203(2)(a), which means, in part, "the current employment of land for the primary purpose of obtaining a profit in money' through specific farming -related endeavors. OAR 660-033-0030(5), however, expressly prohibits consideration of "profitability or gross farm income" as factors in Goal 3 land determinations. If application of the statutory phrase "profit in money" permits or requires a local government to consider "profitability or gross farm income," then the rule directly conflicts with the statute (and with Goal 3, which refers to the statute) and the rule is invalid. The question then, is whether such a conflict exists. DEFINITION OF "PROFIT IN MONEY" To answer that question; we must construe the phrase "profit in money" in ORS 215.203(2)(a) and the terms "profitability" and "gross farm income" in OAR 660-033-0030(5). In interpreting a statute, this court's task is to give effect to the legislature's intent. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). To do so, we begin by considering the text and context of the statute, id. at 610-11, giving "words of common usage * * * their plain, natural, and ordinary meaning." Id. at 611. A statute's context "includes other provisions of the same statute and other related statutes, as well as the preexisting common law and the statutory framework within which the law was enacted[.]" Denton and Denton, 326 Or 236, 241, 951 P2d 693 (1998) (internal citations omitted). This court does not "look at one subsection of a statute in a vacuum; rather, we construe each part together with the other parts in an attempt to produce a harmonious whole." Lane County v. LCDC, 325 Or 569, 578, 942 P2d 278 (1997). In construing administrative rules, our task is the same: we must discern the meaning of the words used, giving effect to the intent of the body that promulgated the rule. Tye v. McFetridge, 342 Or 61, 69, 149 P3d 1111 (2006). To do so, we follow the same methodology for interpreting rules as for construing statutes. Id. We begin with the text of the statute itself. The legislature did not define "profit," as that term is used in ORS 215.203(2)(a). Similarly, LCDC did not define "profitability" or "gross farm income" in the rule that it adopted to implement Goal 3. Moreover, this court has not interpreted any of those terms in the context of the statutes and rules at issue in this case. (11) We therefore begin by looking to the dictionary for the "plain, natural, and ordinary" meaning of the term "profit." As is so often the case, the dictionary offers several plausible definitions: "1 : an advantage, benefit, accession of good, gain, or valuable return esp. in financial matters, education, or character development * * * 2 : the excess of returns over expenditures in a transaction or series of transactions: as a : the excess of the price received over the price paid for goods sold -- opposed to loss b : the excess of the price received over the cost of purchasing and handling or of producing and marketing goods 3a (1): net income (as in a business) usu. for a given period of time (2): a benefit or advantage accruing from the management, use, or sale of property, from the carrying on of any process of production, or from the conduct of business b : the income of invested property not including an appreciation in market value. * * *." Webster's Third New Intl Dictionary 1811 (unabridged ed 2002). As used in the statutory definition of "farm use," the word "profit" is modified by the words "in money." For that reason, we reject the first definition quoted above, under which "profit" could be any "advantage" or "benefit," because that definition would include a sentimental or psychological benefit to the ownership of land, which the statute, by using the words "profit in money," clearly excludes. The second sense of the word "profit" quoted above includes both the concepts of monetary "returns" or "price received" and the "expenditures" or "cost" associated with producing those returns or receipts, and defines profit as the "excess" of the former over the later. The third sense similarly incorporates the concept of revenues minus expenses by referring to "net income," which the dictionary defines as "the balance of gross income remaining after deducting related costs and expenses usu[ally] for a given period and losses allocable to the period." Id. at 1520. Although several of the specific subsenses of "profit" provided by the dictionary -- such as those referring to the purchase and resale of goods or the "income of invested property" -- do not apply to the employment of land for "farm use," the second and third senses described in the dictionary demonstrate that "profit in money" must include some consideration of expenses or costs, as well as of revenues or income. Two other definitions are also relevant here. "Profitability" means the quality or state of "bringing or yielding benefits or gains," id. at 1811, and its specific meaning in the context of this case turns on the proper definition of "profit." "Gross" in conjunction with "income" means consisting of "an overall total exclusive of deductions." Id. at 1002. We therefore reject the alternative definitions offered by the Court of Appeals and by petitioners. Nothing in the words of ORS 215.203(2)(a) requires, or provides any support for, the Court of Appeals' definition of the word "profit" to mean "gross income." Evidence of the gross income that has been or could be generated from the farm use of a parcel of land may well be relevant in determining whether the land is or could be employed for the "primary purpose of obtaining a profit," but, to put it bluntly, "profit" does not mean "gross income." (12) Similarly, petitioners' proposed definition of profit to mean only "net operating profit" also is inconsistent with ORS 215.203(2)(a), because it focuses on current or potential profitability in a tax or accounting sense, while that statute and Goal 3 require the local government to determine whether the land is "suitable" for current use "for the primary purpose of obtaining a profit in money" through certain agricultural or farm activities. (Emphasis added.) As this court has been careful to recognize, "[I]and use laws reflect different policies than tax laws." King Estate Winery, Inc. v. Dept. of Rev., 329 Or 414, 422 988 P2d 369 (1999). With respect to "farm use" determinations for tax purposes, the legislature has stated its intent, in part, to ensure that "bona fide farm properties be assessed * * * at a value that is exclusive of values attributable to urban influences or speculative purposes." ORS 308A.050 (emphasis added). In such a context, strictly defining "profit" as a current year income -after -expenses accounting calculation is appropriate, because it allows for a more precise description of the discrete class of properties that are entitled to certain tax benefits due to their current operation as bona fide farms. In contrast, the identification of land that is "suitable for farm use" under Goal 3 can involve the consideration of factors as diverse as soil type, water availability, land use patterns, required energy inputs, and accepted farming practices. (73) Land can be suitable for economically successful and sustainable farm use and yet the land owner, because of tax and accounting concepts such as accelerated depreciation and loss carry -forwards, legitimately may show a net operating loss from such use. For those reasons, petitioners' proposed tax -based definition of "profit in money" to mean only net operating income after deducting operating expenses is inconsistent with the text and context of ORS 215.203(2)(a). Nevertheless, as set forth above, petitioners are correct to the extent that they argue that We further conclude that the meaning of "profitability," as used in OAR 660-033-0030(5), essentially mirrors that of "profit." For the reasons described above, that rule's prohibition of any consideration of "profitability" in agricultural land use determinations conflicts with the definition of "farm use" in ORS 215.203(2)(a) and Goal 3, which permit such consideration. OAR 660-033-0030(5) is therefore invalid, because it prohibits consideration of "profitability." The factfinder may consider "profitability," which includes consideration of the monetary benefits or advantages that are or may be obtained from the farm use of the property and the costs or expenses associated with those benefits, to the extent such consideration is consistent with the remainder of the definition of "agricultural land" in Goal 3. Finally, the prohibition in OAR 660-033-0030(5) of the consideration of "gross farm income" in determining whether a particular parcel of land is suitable for farm use also is invalid. As discussed above ete. ipts ovr enses��t2 We therefore hold that, 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 land for the primary purpose of obtaining a profit in money[,]" LCDC 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. (14) Accordingly, on remand, LUBA must reconsider its decision with respect to the county's land use determinations at issue here in light of that conclusion and our interpretation of the applicable statutes and rules. 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. In their arguments before LUBA, the Court of Appeals, and this court, the parties and amici appear to assume, at times, that, if particular land currently is "profitable" or produces "gross farm income," then that land necessarily meets the "farm use" test and is properly classified as agricultural land under Goal 3, whereas if the land is "unprofitable" for farming or produces no "gross farm income," then it necessarily is not agricultural land under Goal 3. The case before us, in its particular posture, does not present those issues. 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. The decisions of the Court of Appeals are affirmed in part and reversed in part. The decisions of the Land Use Board of Appeals are reversed, and the cases are remanded to the Land Use Board of Appeals for further proceedings. 1. The county also determined that neither parcel was "forest land" within the meaning of Goal 4 of Oregon's land use planning policy. LUBA reversed that determination, and the Court of Appeals affirmed LUBA's decision. No party petitioned for review of that decision, and that issue is not before this court. 2. For convenience, we refer to the parties that appealed the cases to LUBA and that are respondents on review in this court, collectively, as "Wetherell." 3. The court then decided the case involving the Walker property in a brief per curiam decision citing its opinion in the Great American property case. Wetherell v. Douglas County (A130181), 204 Or App 778, 132 P3d 50 (2006). 4. The full text of ORS 215.203(2)(a) provides: "As used in this section, 'farm use' means the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur -bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof. 'Farm use' includes the preparation, storage and disposal by marketing or otherwise of the products or by-products raised on such land for human or animal use. 'Farm use' also includes the current employment of land for the primary purpose of obtaining a profit in money by stabling or training equines including but not limited to providing riding lessons, training clinics and schooling shows. 'Farm use' also includes the propagation, cultivation, maintenance and harvesting of aquatic, bird and the jurisdiction of the State Fish and Wildlife allowed by the rules adopted by the commission. animal species that are under Commission, to the extent 'Farm use' includes the on- site construction and maintenance of equipment and facilities used for the activities described in this subsection. 'Farm use' does not include the use of land subject to the provisions of ORS chapter 321, except land used exclusively for growing cultured Christmas trees as defined in subsection (3) of this section or land described in ORS 321.267 (3) or 321.824 (3)." 5. In reaching both those conclusions, the Court of Appeals relied, as a matter of stare decisis, on its earlier decision in 1000 Friends v. Benton County, noting that the decision was "not plainly wrong." Wetherell, 204 Or App at 747. The court acknowledged, however, that its holding in the earlier case was based on predicates.that were "curious" and "perhaps counterintuitive." Id. at 743. 6. Wetherell filed a brief in this court only in the Great American case. Because Wetherell also is a respondent on review in the Walker case and the legal arguments in her Great American brief apply equally to the Walker case and are consistent with her arguments before LUBA and the Court of Appeals, we refer to her Great American brief. 7. Because the issues raised in this case represent important questions of first impression regarding Oregon land use statutes and rules, we invited the Department of Justice to submit an amicus curiae brief on behalf of LCDC. Among other things, LCDC now asks the court to remand this case to the Court of Appeals with instructions to allow LCDC to intervene as a party below to defend the validity of OAR 660-033-0030(5) and the rule's relationship to ORS 215.203(2)(a). LCDC, however, has always been able to intervene in this case as a matter of right under the Oregon Rules of Appellate Procedure. ORAP 4.60 provides that, except where some other procedure is provided by statute or rule, the procedures for judicial review of final LUBA orders are the same as those generally used for reviewof administrative proceedings. On judicial review of such administrative proceedings, ORAP 4.40 allows an agency whose "order, rule, ruling, policy or other action" is at issue in the proceeding to intervene before either the Court of Appeals or the Supreme Court simply by filing a brief at the same time the respondent's brief is due. 8. The 19 policy areas encompassed by those goals are set out at OAR 660-015- 0000, 660-015-0005, and 660-015-0010. 9. Like the other statewide planning goals adopted by LCDC, the actual text of Goal. 3 and the guidelines for its implementation are not codified in either the Oregon Revised Statutes or the Oregon Administrative Rules. Instead, LCDC has set out all the goals as individual publications that are available for reviewat the agency or online. 10. As a matter of state policy, ORS 215.700 allows "certain owners of less productive land an opportunity to build a dwelling on their land[.]" ORS 215.700(1). Because petitioners seek to subdivide their property rather than build a single dwelling on it, ORS 215.700 is inapplicable in this particular case. 11. In Meeker v. Board of Commissioners, 287 Or 665, 678 n 6, 601 Ptd 804 (1979), this court, in a case involving the subdivision of agricultural land, specifically declined to decide "the question of 'farm use' under ORS 215.203(2) (a)" and resolved the case by concludingthat evidence supported the county's determination that the land would be more agriculturally productive if subdivided. In a concurring opinion, Justice Holman discussed the statute and pointed out that the parties had failed to address the question whether the land, if subdivided, could be used "for the purpose of obtaining a profit in money," and therefore constitute "farm use." 287 Or at 679-80 (Holman, J., concurring). 12. As noted previously, Or at (slip op at 6), the Court of Appeals followed its prior interpretation of ORS 215.203 in 1000 Friends. 1000 Friends, however, was based on a provision of the statute that had been repealed by the legislature in 1973. Prior to that year, the statute qualified the "profit in money" requirement with a "gross income" clause that established a threshold of current commercial activity as part of its definition of "farm use." See ORS 215.203(2) (b) (1971) (providing that land not be regarded as used for making a profit in money "if the whole parcel has not produced a gross income from farm uses of $500 per year for three of the [last] five calendar years[.]"). The legislature deleted the gross income test in 1973. Or Laws 1973, ch 503, § 3. That action eliminated any statutory basis from which to infer that the land owner must attain a particular level of current economic activity for land to be classified as "farm use" land under the statute. For that reason, in addition to the reasons discussed in the text, we reject the rationale that the Court of Appeals adopted in 1000 Friends and that it adhered to in this case. 13. Moreover, the identification of land that is "suitable for farm use" includes "[l]and lying fallow for one year"; nonproductive "[w]asteland" and "[w]ater impoundments" in an exclusive farm use zone that are adjacent to and in common ownership with farm use land; and land that is idle for a year because of the farmer's illness. ORS 215.203(2)(a)(B), (E), (G), (I). In each of those examples, the specific land is undeniably not producing a profit, and yet the statute provides that the land nevertheless may be determined to be currently employed for a farm use within the meaning of the statute. 14. As discussed previously, LCDC has authority to adopt rules to implement the land use planning statutes and goals, and it may adopt rules regarding the manner in which "profit in money" should be considered by local governments making land use decisions. Given the wording of Goal 3 and ORS 215.203(2)(a), however, it may not, as we hold in this case, preclude local governments from even considering the "profitability" or "gross farm income" of land in determining whether the land is"suitable for farm use." 46 Soil Survey 19A—Elorobey sandy loam, 0 to 6 percent slopes COTIVOSI0017 Boni bey soil and similar inclusions-65percent Contrasting inclesions-15 percent Setting Landfortn: Lava plains Parent materfat Ashover oldalluvium Sevallom4,200 to 4,800 feet Wive plants:Mountain b g sagebrush, Idahofescue, Thurber needlegrass, western needlegress Often° tact= Mean annual precipitation -10 to 12 inches Mean annual airterriperature-49to45 degrees F Frost -free period -50 to 90 days Typical Profile 0021 inches—grayish brown and brown sandy loam 21 to ,51 inches—pie brown sandy loam 51 to 60 inches—pale brown clay loam Soil Properties anti Qualities Depth: Bedrock at a depth of 60 inches or more Dminagealass: Somewhat excessively drained Permeability:Moderately Wow Available water capacity:About 5 inches Contrasting Inclusions • Reluctan soils on higher toe slopes • Ninemile soils on lava plains • Stookmoor soils along adjacent lava plains • Garclone and nester soils in drainageways Major Use Livestockgrazing Major iltianagement Limitations Climate, surfacelexture, permeability General Management Considerations .0 The cold climate and soil temperature delay the growth of forage and shorten the growing season. • Care should betaken to protect the soil from wind erosion when applying range improvement Practices. • Because the soil is influenced by Pumice ash, reestablishment of the native vegetation s very slew if thevegetation is removed or deteriorated. • Pond development is limited by the risk of seepage • The low annual precipitation limits the choice of speciesfor range seeding to drought -tolerant varieties. Range Site Pumice 8-10pz 20A—Borobey gravelly sandy loamy hardpan substratum, 0 to 5 percent slopes Composition I3orobey soil and similar inclusions—B5 percent Confrasthiginclusforts-150ement Betting Lem/form Lava plains Parentmateriat Ash over old alluvium Elevation 4,200 to 4,800feet Native plants:Mountain big sagebrush, wester rieedlegrass, Ross sedge, bottlebMstt acinirreltail Climatic, factor* Mean annual precipitation -10M 12 inches Mean annual air temperature -43 to45 degrees F Frost -free period -50 to 90 clays Typical Profile 0 to 8 inches—grayish brown gravelly sandy loam 8 to 24 inches—pale brown loamy sand 24 to 45 inches—pale brown sandy loam 45 to 60inches—Oduratedduripan Soil Propetties and Qualities Depth: Duripan at a depth of 40 to 60 inches; bedrock at a depth of 60 inches or more Drainage class Somewhat excessively drained Permeability:Moderately slow above theduripan Available watercapactc About 4 inches Contrasting Inclusions • Ninemile soils on lava plains • Stookmoor soils along adjacent lava plains • Gardone and Destersoils in drainageways Major Use Livestock grazing Major Management Limitations Climate, surface texture, soil depth General Management Considerations • The cold climate and soil temperature delay the growth of forage and shorten the growing season. 76 Soil Survey Forest Service Plant Association Gapsoli--CD-56-14 Glazeeoil--CW C2=f 52B—Gardcne sand, 3 to 10 percent slopes Composition Gardena soil and similartnclusions--85:percent Contrasting inelusions-15 percent Setting Landform: Lava plains Parent material:Ash Elevation:4,200 to 4,800 feet Native plants: Mountain big sagebrush, Idaho fescue, Thurberneedlegrass, western needlegrass Climatic factors: Mean annual precipitation -10 to 12 inches Mean annualair temperature -43 to 45 degrees F Frost -free period -50 to 90 days Typical Profile c inches—dark grayish brown sand 60ihchesgrayish brown and pale brown loamy sand Soil Ptrojoerties and Qualities Depth: Bedrock at a depth of 60 inches or more Drainage class; Excessively drained Pertneabili4cRapid' Available watercapacity: About,6 inches Contrasting inclusions • Areas of moderately deep and deep ash deposits over aburied soil on basalt pressure ridges • Choptie soils on knolls and Nis • Borobey soils along drainageways Major Use livestockgrazing Major IVianagement Limitations' Climate, surface texture, permeability General Management Considerations • The cold climate and soil temperature_ delay the growth of forage and shorten the growing season. • Care should be taken to protect the soli from wind erosion when applying range improvement practices. • Because the soil is influenced by pinnies ash, reestablishment of the native vegetation is very slow if the vegetation is removed or deteriorated. • Pond development is limited by the risk of seepage • The low annual precipitation limits thechofce of species for range seeding to drought -tolerant varieties. Flange Site Pumice 8-l0pz C -Garonne sand, hummocky, S to 15 percent slopes Composition Gardens soil and similar inclusions --as percent` ContrastinginClusions—l5 percent Setting: tandem:Dunes on'iava plains Parent material: Ash €levetion:4,000 to 4,800 feet Native plants: Mountain big sagebrush, Idaho fescue, Thurberneedlegrass, western needlegrass Climatic tractors: Mean annual precipitation -10 to 12 inches Mean annual air temperature -43 to 45 degreesF Frost -free period -50 to 90 days Typical Profile 010 10 inches—dark grayish brown sand 10 to 60 inches --grayish brown and pale brown loamy sand Soil Properties and Qualities Depth: Bedrock at a depth of 60 inches or more Drainage class; Excessively drained Permeability, Rapid Available water capacity:: About 6 inches Contrasting inclusions • Borobeysoils along drainageways • Areas of moderately deep and deep ash deposits over a burred soil on basalt pressure ridges; • Stookmoorsoils along adjacent lava plains • Btayden soils along drainageways Lipper Deschutes River Area, Oregon Major Use Livestock grazing Major Management ifinitatinne aim*, surface texture permeability General Management Considerations • The cold climate and soil temperature delay the growth of forageand shorten the growing season. • Care should be taken to protectlhe soil -from wind erosion when applying range improvement ores -lima. * Because the soil is influenced by pumice ash, reestablishment of the native vegetation is very stow if thevegetation ia removed or deteriorated, • Pond development is limited by the risk of seepage. • The low annual precipitation limits the choice of speciestor range seeding to drought -tolerant varietieS. Range Site Pumice8-10pz 54C—Garclone sand, moist, 3 to 20 percent slopes Composition Gardone soil and sitnilarinclusions-85 percent Contrasting inclusions -15 percent Setting Landfomr Lava plains Parent material: Ash over buried soil material Elevation 4,000 to 4,800 feet Native plants:Mountain big sagebrush, antelope bitterbrush, Idaho fescue, Thurber needlegrass, western needlegrass Climatic factors: Mean annual prectpitation-10 to 12 inches Mean annual air temperature -43 to 45 degrees F Frost -free period -50 to 90 days Typical Profile 0 tot° incliet.: dark grayish brown semi 10 to 41 inches—grayish brawn and pale brown loamy sand 41 to 60 inches—pale brown loam Soil Properties and Qualities Depth:Buried soil material at a depth of 40 to 60 inches; bedrock at a depth of 60 inches or more Drainage class Excessively drained Permeabili4c Rapid over moderate Available water capacity: About6 inches Contrasting Inclusions • Borobey and Blayden soils along drainageways • Areas of moderately deep ash deposits over a buried soil on basalt pressure ridges • Stookaloor soils along adjacent lava plains Major Use livestock grazing Major Management Limitations Climate, surface texture, permeability General Management Considerations • The cold climate and soil temperature delaythe growth of forage and shorten the growing season • Care should be taken to protect the soil from wind erosion when applying range improvement practices. • Because the SOH is Influenced by pumice ash, reestablishment of the native vegetation is very stow if the vegetation is removed or deteriorated. • Pond development is limited by the risk of seepage and the steepness of slope in some areas. Range Site Pumice 10-12pz 55A—Gartione-Borobey complex, 0 to 5 percent slopes Composition Gardone soil and similar inclusione--BO percent Borobey soil and similar inclusions—GO percent Contrasting inclusions -10 percent Setting Landform: Lava plains Parent materialAsh Elevation 4,200 to 4,600 feet Native plants Mountain big sagebrush, Idaho fescue, Thurber needlegrass, westem needlegrass Climatic factom: Mean annual precipitation—lOto 12 inches Mean annual alr temperature -43W 45 degrees F Frost -free period -50 to 90 days Typical Profile of the Gardone Soli to 10 tnches---dark grayish brown sand 100 60 inches—grayish brown and pale brown loamy sand Properties and Qualities of the Gardone Soil Depth: Bedrock at a depth of 60 inches or more 150 Soil Survey • The low annual precipitation limits thet holes of species for range seeding to drought -tolerant varieties. Range Site FttaioeFlata-11pz 124D—Stookmoor gravelly loamy sand, 20 to 50 percent north "Slopes Composition Siockmoorsoiismisimiisrinctusions—as percent Contrasting inclUatena-15 percent Setting Landscape peskier): Side slopes Landform: Parent materlakAsh Bevation24,300 10 4,800 feet Native plantsilNestern juniper, mountain big sagebmsh, Idahofescue, bluebunch wheatgrass Cillnatic factors: Mean annual precipitation -10 to 12 inches Mean annual air temperature -43 to 45 degrees F Frost -free teriocl-50 to 90 days Typical Profile 0 to 6 Inches—grayish brown gravelly loamy sand 8 to 24 117Cher grayish brown and pale brown sandy loam 24incjie$bI Sail Properties and Qualities Depth: Bedroekat a depth of 20 to 40 inches Drainage class:Somewhat excessively drained Permeability; Rapid over moderately slow Available water capacity:About 4 inches Contrasting inclusions • Choptte soils on knolls arid hills • Gardonesolls on toe slopes • Westbutte soils on steep hillsides • Radcliff soils along dminageways of rocky ravines Major Use tivestockgrazing Major Management Limitations Climate, surface -texture, soil depth, permeability, slope General Management Considerations • The cold climate and soil temperature delay the growthof forage and shorten the growing season. • Care shoUld be taken to protect the soil from winci erosion whenapplying range irnorovernentprectices. • Because the soli is influenced by pumice ash, reestablishment of the native vegetation is very slow if the vegetation is removed ordeteriorated. • Pond development Is limited by the -soil depth, risk of Seepage, and sfeepnessof slope, • The low annual precipitation limits The choice of species for range seeding to drought-loierant varieties. • The steepness of slope restricts livestock distribution and limitsrange seeding with grbund equipment linage Site' Pumice North 9-12pz 135C—Stoolonooramien complex, 1 to 20 percent slopes Composition stoskmoorsoiiancisimliarincissions 45 percent Berl similerinclusions-0 percent Contrasting inclusions -15 percent Setting Landfortirtava plains Parent material:Stoolanoor soil—ash; Beden sod— residuum derived from basalt with ash on the surface Elevation:4,300 to 4,000feet Nativetfants:Stookmoor soil—mountain big sagebrush, Idaho fescue, Thurber needregrass, western needlegrass, Beden soil—western juniper, mountain big sagebrush, Idaho fescue, Thurber needlegrass Climatic factors: Mean annual precipitation -1 Oto 12 inches Mean annual air temperature -43 to 45 degrees F Frost -free period --50 to 90 clays Typical Profile of the Stookinoor Soil o to 5 inches --grayish brown learny sand 6 to 24 inches --grayish brown and pale brown sandy loam 24 inches—basalt Properties and Qualities of the Stookmoor Soil Depth Bedrock at a depth of 20 10 40 inches Drainage class: Somewhat excessively drained Permeability: Rapid over moderately slow Available water capacity: About 4 inches Tuesday, May 20, 2008 Board of County Commissioners c/o Will Groves Community Development Department Deschutes County 117 NW Lafayette Ave Bend, Oregon 97701 510 northeast 3rd street, bend Oregon 541.390.8600 > Ianduse@coguide.cam Re: A-08-04; CU -07-93 Dear Sirs and Madam: Does the analysis of the subject parcel in conjunction with adjacent parcels in Nash ownership result in a finding of suitability? What is the extent of land that must be analyzed as part of the analysis of the subject parcel? What is now known as Tax Map 20-14 Tax Lots 400, 401 and 402, along with 63,000 acres of public grazing rights were analyzed as part of CU -98-16. Inherent in this is that for over a decade, the Nashes have recognized that the grazing rights and parcel containing their dwelling is distinct from the subject parcel and the parcels to which it is contiguous. Given this, we need only look at the income capacity of the 1,120 acre tract comprised of the subject parcel and those parcels contiguous to it. The combined income capabilities of these lands are $3,780. When considering even just the $4,000 in transportation and management costs (figured for just the 160 acre subject parcel) there is no profit potential, even before considering other costs of production. The combination of the subject parcel with lands equally unsuitable does not make them suitable. This simplified analysis is further substantiated by the fact that an analysis of the productivity of the grazing rights is problematic at best. As attested to at the hearing, public grazing rights are fraught with problems, including: increasing stubble heights, increasing restrictions on time and nature of use, increasing conflict with OHV users, hunters, and other recreationalists and increasing intentional and unintentional vandalism. As the attached letters from Jackie Herring, Everett Decker, Bev Prothro and Alex Robertson attest, ranching in the Millican Valley is simply not viable. A finding of suitability insults the Nashes as it signifies that it is their management rather than the inherent characteristics of the subject property which make it unprofitable. If we leave the Nashes with no economically viable options we effect a taking. As Commissioner Luke stated at the Public Hearing, we can and should do better than this. We should be honest about the objectives we are seeking to further. It is unfair and unjust to make a spurious finding of suitability merely because we fear the potential of future applications not now before the Board. As Applicant has previously stated, we merely ask that the Board employ a case -specific analysis in place of the knee-jerk blanket denial employed for the past 16 years. Applicant asks that the Board lay the pall of the Best decision to rest in favor of the site specific analysis upon which our entire land use system is based. As much as the Applicant and Board may wish for a systemic or concerted changed in land use planning in the Millican Valley, it is unlikely that any such reevaluation would follow a denial of the instant application. In the past 16 years there have only been a handful of other applications, none of which were appealed to this hearing body. The low land values combined with a history of categorical denials make the prospect of land use applications in the Horse Ridge East Subzone decidedly unappealing. It is incumbent upon the Board to alter the tide of denial in favor of an honest analysis of the suitability of the subject property. There can only be two choices. Either a parcel is or is not suitable. When looked at in the alternative, can the Board honestly find that the subject parcel is suitable for the production of livestock? As LUBA found in Wetherell (LUBA 2005-045), it is proper for the hearing body to consider the profitability of the farm -use of the subject property. The intent of nonfarm dwellings is to afford ranchers the opportunity to utilize otherwise worthless ground. Even if the 3 x 320 acre sites are ranched, Mr. Nash has testified that a nonfarm dwelling would provide a tangible benefit to grazing operations on nearby lands. You are in the unusual circumstance of granting nonfarm dwelling approval that not only does not "significantly increase the cost of accepted farming ...practices" but actually stands to create a net decrease in such costs. In shaping conditions of approval, you are permitted to require such accommodations as no perimeter fencing (i.e. only allow fencing of home and curtilage) which lets you tailor the approval to best meet a number of goals which might otherwise be in conflict. I urge you to use this opportunity to replace a regime of a blanket policy irrespective of site specific analysis with one of thoughtful approval/denials where conditions are employed to sculpt plans which further societal goals while retaining economically viable uses for private property. We can and should do better than perverting criteria to accomplish unrelated ends. The BLM COHVOPS site (http://www.fs.fed.us/r6/centraloregon/recreation/cohvops/index.shtml) states that the soils of South Millican "are very sandy with rock outcrops" and that "[p]lant life on the High Desert is sparse and fragile". The site of the proposed nonfarm parcel is not "generally unsuitable for farm use" because it is identical in every respect to the surrounding lands which are in active agricultural use and it can reasonably be put to farm use in conjunction with other land. DCC 18.16.050; ORS 215.263(5) While clearly fallacious as no two parcels are identical, the subject parcel is surrounded on three sides by public lands which are clearly distinct from private lands and extremely unlikely to ever become private lands. The question before you is not, has anyone ever attempted to put the lands to "farm use" but rather are they suitable for farm use. Just because a number of settlers (see attached map of Deschutes County homesteads) attempted to graze or farm and people have attempted to use the Millican Valley for grazing is not decisive of the issue of suitability. Applicant contends that the relevant question is not whether the subject property is currently or has ever been used for grazing, but instead is: whether the subject property can be used for grazing, alone or in conjunction with other parcels PROFITABLY. An integral part of the definition of "farm use". as expounded in Wetherell, is the phrase "to make a profit". Without a profitability requirement one could conceivably claim that a concrete slab is suitable since water and hay could be provided for animal sustenance - clearly this result is absurd. Whether the land has historically been used for grazing as part of the extensive Evans Wells Ranch is the sort of information that is used to inform the determinationof the current and prospective viability of farm lands, it is not determinative. Where property has been used for grazing and growing of hay in the past and there is no evidence that anything about the land has changed to make it generally unsuitable for those purposes, there is substantial evidence to support a finding that the property is not generally unsuitable for the production of livestock. Adams v. Jackson County, 20 Or. LUBA 398 (1991). In Adams, the subject property was composed of soils rated Class III and IV when not irrigated and is therefore not comparable to the property before you. Applicant does not deny that sixteen years ago when they purchased the Evans Well Ranch, they believed it to be suitable for grazing. Changing regulations on public lands and increased human interference (see Steven Roth email dated November 12, 2007 attached for analysis of the significance of these interferences) have made what was marginal land unsuitable. The County has approved (paint ball course) and is on the verge of approving (mine) additional interferences. The question to be answered is whether the subject land, rather than a particular farmer, can produce crops or livestock. See Reed v. Lane County, 19 Or LUBA 276, 284 (1990). Applicant contends that the lack of productivity is the result of fundamentally unsuitable lands, rather than Applicant's mismanagement or incompetence. In response to opponents citations of Clark v. Jackson County, 19 Or LUBA 220 (1990) and: Where a parcel has historically been used for livestock grazing in conjunction with other adjoining parcels, a county must consider the subject parcel's suitability for grazing in conjunction with adjoining and nearby properties in determining whether the parcel satisfies the "generally unsuitable" standard. Avgeris v. Jackson County, 23 Or LUBA 124 (1992). Applicant has provided analysis above concerning the general unsuitability of the entire contiguous dry 1,120 acres. Class VI soils are NOT, de facto, suitable, nor should land that has been historically grazed or used as part of a ranching operation by definition suitable. Rather, these cases say that these factors should be considered. 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. DCC 18.16.050(G)(a)(iii) As we consider the ten-ain, adverse soils and land conditions we can further explore the Management Limitations and Considerations (see soils data attached) and must acknowledge that there is no irrigation water on the subject property, no irrigation water even flows through the Millican Valley. Even if irrigation were available the subject soils are not rated for irrigation; they are so poor that such would be a waste of precious water. Dry land grazing on soils with severe limitations in an area of high and ever-increasing human interference is not feasible. Water must be trucked to the animals. Water sets are constantly having to be moved as OIIV users and hunters scare cattle. With the prevalence of human interference one could actually make the argument that to ranch these lands would be inhumane as it would subject cattle to the terror induced by gunshots, loud motors, vandals and others. Even as input prices increase, cow/calf pair yield has been stable or dropping. As so many homesteaders found early last century, the Millican Valley is unsuitable for farm use as it cannot be "employe[d] ... for the primary purpose of obtaining a profit in money". We can no longer relegate the Nashes to what amounts to indentured servitude as they face a prisoner's dilemma of abandoning ranching altogether, sitting idly on lands they cannot sell nor put to farm use or pursuing what they know to be an endeavor devoid of financial benefit. They want to ranch. They just want a ranch where to do so is feasible. I plead with you to have the courage to admit what so many unlucky souls have discovered over the last 100 years and the Board of Commissioners even acknowledged in its Best decision (attached) and find that these lands are unsuitable for farm use. If we apply a site specific analysis and honestly assess the subject parcel's suitability, your decision should become clear and approval should be granted for a nonfarm dwelling on the subject parcel. Sincerely, Danielle M. Strome From: rothstephen@netscape.net Sent: Monday, November 12, 2007 5:03 PM To: William Groves Subject: Condition Use: paintbail course File # CU -07-79 Applicant: Dorsett; Non -Farm Dwelling CU -07- 93 Dear Mr. Groves, I am writting in response to two conditional use applications that are currently being reviewed in the Millican Valley: a paint ball course,and nonfarm dwelling. First I'd like to give a little bit of background about myself. I am a second generation rancher. During my life our family has always had BLM and/or Forest Service grazing allotments. I have recently gotten married, and hope to pass this way of life on to my children. I am concerned about the future of agriculture, and hope that our land use zoning will help allow the next generations to have the opportunity to produce food and fiber for their fellow Americans. The largest risk factor for a public land rancher (or any agriculturalist who cannot visually see their entire property) is human caused stress or mortality to the livestock. We or our immediate neighbors have had cattle: chased by motorcyclist, chased to death by domestic dogs, hit by vehicles, shot by teenagers, shot by bow hunters, and mutilated by satanist. We have no idea how many have been lost to other "hunter" harvests. We or our immediate neighbors have had• fences cut in multiple places to make the fence irreparable, water troughs shot, copper wire stolen from wells, well plumbing bashed with hammers, generators stolen, roads torn up by vehicles, fences driven through, and gates perennially left open so that the cattle can get out and die of dehydration. The only problem we have had by a legitimate neighbor (one who has paid to get building authority) is hitting a cow on a public road. They, as good citizens informed us of the problem, and their insurance compensated us for the loss of the animal. What many people don't realize is how vulnerable we are. A neighbor in an illegal dwelling's dogs chased and killed one of my cattle one year (and also the next.) I did not have the option of using the proper channels (law enforcement) and risk upsetting the neighbor, because a person who already has no regard for the law may be willing to vindictively shoot cattle when I'm out of sight. A person living in an illegal dwelling more than likely doesn't have the resources to pay for damages to livestock either. The neighbor and I worked out a compromise where I could eliminate his dogs when they were chasing my cattle. Over last Memorial Day we had gates on the National Forest checked twice a day. Out of the eight times the gates were checked, seven times one or more gates were found left open. The previous year I had a cow die of dehydration because of a gate being left open. Because of the tire tracks, we can blame the Memorial Day gate problems directly on recreationalist driving motorcycles and ATVs. There are only two solutions for farmers and ranchers that I can see. The first is to move away. This is the choice I made. This year I traded my ranch at Pine mountain, to my father for his ranch at Hampton. For my children to have a chance at ranch life I chose to get farther away from the population pressures of Bend. The second solution is for the county land use plans to have a paradigm shift. If you want economically viable farms and ranches pursue a policy of legal non- farm neighbors, and discourage itinerant recreationalist. Legal neighbors have a stake in the community and are willing to keep an eye on other people's property (cattle.) If there is a problem with a neighbor, and a friendly chat doesn't work, the legal system can be used without the worry of reprisals. If there is a reprisal, the neighbor can be sued for damages with a expectation that their house and land are worth more than the cattle they killed. If the county wants to encourage agriculture, discourage: motorcyclists, hunters, jeep drivers, paintballers, and anyone else that cannot be held accountable for their actions. They come, they destroy, they leave --all before a person realizes that damages have occurred. That makes then virtually unstoppable. For the above reasons I am not in favor of the paint ball course. One more draw of anonymous users to the Millican valley is destructive to surrounding EFU land. Although my father now owns the ranch in Millican, it does include a BLM grazing allotmentthat is approximately 2:5 miles from the proposed paintball course. The Singhose family also has a BLM grazing permit near (within 2.5 miles) the facility. Two and a half miles may sound like a large distance, until you realize that is only three minutes away in a car or motorcycle. Mr. Dorsett may have never seen my cattle, but I have seen his paint ball park. The second conditional use application is for a non-farm dwelling. I am strongly in favor of legal home owners. We need more of a community presence to make vandals think twice before destroying property. Thank you for listening to my concerns, Stephen Roth . Former owner of Pine Mountain Ranch Check Out the new free AIM(R) Mail -- Unlimited storage and industry-leading spam and email - virus protection. BEV PROTHRO REAL ESTATE 2008 Ta Deschutes County to Subject: Highest and Best U+ Lads li +lillican Valley Area I have been selling property in Crook and Deschutes .Comity .for '10 years specializing in rural acreage, bare land, and ranch Iand. I am quite familiar wuth:the Milken Valleypiat els, and have had occasion to show these large acreages to people looking for property for raising cattle.; Whenever 1 show acr agein this area,,buyers say"NO WAY Is it practical to graze cadie in 'Unsaved: Comments are usually that it would take way too many acres to raise a cow/calf unit. Also, the soils are very poor plus no water to grow hay.' In my opinion, this area would be best suited for vacation or year around, homes, Iteevectfully submitted, erly J. Prothro Proprietor tip Office: 541-416-8688 Celt 541,420.0156 Fax: 541.447.8903 E-mail: beeve©lsp,com 2315 SE Maphet Road, Prineville, Oregon 97754 00 0' '13 0 1 15 sla tn cp E0 ,be cu cp ba ba 8 15 4' CP n, man 0 Ji*caft,4., pride am_1 .4 • 0 1:€1,741291-ry- akin. .116 1.1 tia-74“raatantrOzip %smolt if Ak \ swiPPPg kTinalast - a ' ' swavoy 7eitA ,ita t;illitWaiailltr, uffniat av'Aaataltal NOW*, P sgoriraintritteof ig at Wagirtets --w-e% is parroanticp ' `` 41ro"91911-trAttirrami liff2tite" 11 't?' railKir VC - ji‘ ,a,41)innisma it tset-RPILItY nrprertitiww rir,_ citiikralremrlr- II ii.ii - tS.:t4 Mit %. &spa r..1 tz.,„ .v etAlwaiL et as a , r' aqv LP 411/1•gragsn el sa arlinditivoozgrriurr 1 astsgtai%iirani goatitassiareerTfe• g• ilailiatrAMICALVA KolwAleri ' ii lira NIStif iiiii 11111W ra P ORM PX6-4;!. CAM retak. 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Thr FPI a Vire r fa 1 # ))2e.ai familli ...,,SNI ...., sailIgnied:w -mos ...s,ii err r.2 t.&. q 1 SOrgrirlaniThe i ‘LWrF ‘4t4 liar)rorst -setio'S _ ,A4140 ZW017154iPARFingirli;14\11.1111tilialt Ni7;:4;111415 4BIL ri4011rOP -2-22 22;2 -""MD.41 24IL 541”; 4 . =' . 1. • i .I 22 ; - It:van-A 2•2;-: May 21, 2008 Board of County Commissioners c/o Will Groves Community Development Department Deschutes County 117 NW Lafayette Ave Bend , Oregon 97701 Re: A-08-04; CU -07-93 The idea that these 160 acres of dry land is suitable for ranching if it has a federal grazing permit is no reason to restrict uses of the land. Federal permits can be taken away at any time. BLM & FS have closed permits with no compensation to ranchers, usually for environmental reasons. Well - funded environmental groups apply constant pressure and use lawsuits to remove cattle from federal land. We have lost grazing allotments (Crane Prairie, Sugar Pine) through this process -federal monument status, wild and scenic river status. Our forest grazing dates have been compressed from May -Sept to June —Sept, losing 30 days of grazing with no compensation. BLM has closed permits in the Bend -Redmond area because of conflicting uses with no compensation, mitigation or compromises to ranchers. Ranchers have a substantial capital investment in these allotments, from fence to waterlines. We are currently awaiting a ruling from the Oregon Attorney General if state law regarding impeding a livestock operation and harassing livestock applies on a federal grazing permit. Dove hunters were using our portable water tanks to hunt doves twice each day. They were also successful in keeping 250 head of cows and calves off water, to the point consumption was down 50%, and resulting weaning weights were off 251bs., a direct cost to us of $7,000. No law enforcement agency would take action against the hunters, since there was no tested law on the books. We were told by OSP that we could face charges of interfering with a hunt, if we asked the hunters to leave. Other recreational uses on Federal Land are growing exponentially, spilling onto private land. The Deschutes National Forest has over 320 miles of OHV trails. BLM has designated Horse Ridge "Primary Recreation Emphasis." Inviting mountain bikers, hikers, geocachers, hunters and campers onto our ranch. This leads to cut fences, gates left open, livestock harassed, arrow and bullet shot cattle, bullet shot water tanks, salt and supplies stolen. From the 160 -acre parcel in question, you can see the locations of two cattle shootings, 5 tank shootings. A dwelling would be a sentinel and deterrent to lawless activity. The increase in environmental considerations on Federal Land is adding to the costs of ranching. Restrictions on seasons of use reduce the number of cattle a ranch can support. As wildlife become forced out of an area because of recreation or OHV trails, they move onto the ranch, where better feed and water are available. Road closures make our job more difficult, and more costly. After the Skeleton fire, biologists replaced our existing fences with high tensile smooth wire. Easy for antelope and deer and cattle to get through. Again, an increase in cost, as cattle roam further and gain less. Even if a federal agency does not close an allotment, environmental policies and conflicts with the public can easily make the allotment unprofitable. Allowing legal dwellings on legal parcels would provide better stewardship for the area and reduce incidents of vandalism, harassment of livestock and wildlife, trespassing and dumping trash. Residents would also provide a consistent year round water supply for wildlife, critical in the desert environment. Ranchers offer more benefits to wildlife than recreationalists and lock -it -up environmentalists, by providing water and increased forage. If ranches are forced out of business, wildlife will also suffer. Deschutes County has said the 320 EFU HR zoning is needed to protect ranches, but allows conditional uses that conflict with ranching: a twenty acre paintball course, 320 acre gravel pit, sewer lagoon, uncontrolled illegal dwellings, all of which are less favorable to wildlife and ranchers. Thank you for your consideration of this difficult issue. Sincerely, Keith and Janet Nash 25700 Spencer Wells Rd. Bend, OR 97701 ( 1000 friends of Oregon 534 SW Third Avenue, Suite 300, Portland, OR 97204 • 503-497-1000 • fax 503-223-0073 • www.friends.org Southern Oregon Office • PO Box 2442 • Grants Pass, OR 97528 • 541-474-1155 • fax 541-474-9389 Willamette Valley Office - 189 Liberty Street NE, Suite 307A • Salem, OR 97301 • 503-371-7261 • fax 503-371-7596 Central Oregon Office • PO Box 242 • Bend, OR 97709 • 541-382-7557 • fax 541-317-9129 May 14, 2008 Deschutes County Commission c/o Will Groves Community Development Department 117 NW Lafayette Avenue Bend, Oregon 97701-1925 sent via facsimile Re: CU -07-93, (A-08-4) Charles and Janet Nash Dear Commissioners, On behalf of 1000 Friends of Oregon, thank you for the opportunity to comment on the above - referenced nonfarm dwelling application. I regret that a previous commitment will prevent my appearing in person at the hearing. We urge you to uphold the Hearings Officer's denial of this application for the reasons outlined below. 1. The site of the proposed nonfarm parcel is not "generally unsuitable for farm use" because it is identical in every respect to the surrounding lands which are in active agricultural use and it can reasonably be put to farm use in conjunction with other land. DCC 18.16.050; ORS 215.263(5) The Hearings Officer's Decision (pp. 2-3) describes the subject property as having native sagebrush and grass vegetation, and as being surrounded by 36,621 acres of BLM lands to the north, west, and south and by the rest of the applicants' own extensive ranch to the east. Aerial photographs in the record show that the property is indistinguishable visually from the actively grazed lands surrounding it for miles in every direction. Similarly, the NRCS soils map in the record shows that the soils of the subject property are identical to the soils on the surrounding grazing lands. That is, the record clearly shows that there is nothing to distinguish the subject property in terms of vegetative cover or soil type that would indicate this parcel is in any way less suited for grazing than the surrounding lands that are currently dedicated to that agricultural use. The relevant question is not whether the subject property is currently being used for grazing, but instead is: a) whether the subject property can be used for grazing, alone or in conjunction with other parcels, and b) whether the land has historically been used for grazing as part of the extensive Evans Wells Ranch. CU -07-93 1000 Friends of Oregon May 14, 2008 LUBA has examined the issue of general suitability of grazing lands for agricultural use numerous times. Below are excerpts from relevant LUBA decisions: Where property has been used for grazing and growing of hay in the past and there is no evidence that anything about the land has changed to make it generally unsuitable for those purposes, there is substantial evidence to support a finding that the property is not generally unsuitable for the production of livestock. Adams v. Jackson County, 20 Or LUBA 398 (1991). Where 40 acres which produce only sparse forage of little value for grazing are generally unsuitable for grazing by themselves, but have historically been used for grazing in conjunction with the adjoining 400 acres, the adjoining 40 acres are not "generally unsuitable for farm use" Clark v. Jackson County, 19 Or LUBA 220 (1990). Where a parcel has historically been used for livestock grazing in conjunction with other adjoining parcels, a county must consider the subject parcel's suitability for grazing in conjunction with adjoining and nearby properties in determining whether the parcel satisfies the "generally unsuitable" standard. Avgeris v. Jackson County, 23 Or LUBA 124 (1992). We urge you to uphold the Hearing's Officer decision that this property is not generally unsuitable for the production of farm crops and livestock, because it is the same as the surrounding lands, and may reasonably be put to farm use and managed in conjunction with the rest of the applicants' ranch holdings or the surrounding BLM grazing allotments. 2. The site of the proposed nonfarm parcel itself is not "generally unsuitable for farm use" within the meaning of ORS 215.263(5) and Deschutes County legislation implementing that statute DCC 18.16.050. The Hearings Officer's decision (pp. 18-19) reflects a common misunderstanding of the USDA Natural Resource Conservation Service (NRCS) soils classification system, where it characterizes the soils on the subject property as being of "very low agricultural capability". We respectfully disagree with the Hearings Officer's decision where it finds that the presumption of suitability for the Class VI soils on the subject property "may be overcome by evidence of the specific characteristics of the soil on the property" (p. 19). Contrary to the Hearing Officer's statement, the NRCS soils data support a finding that the subject property is, in fact, suitable for the production of crops and livestock based on its soils. In the first place, the soils are of NRCS Class VI, and so are presumed suitable for the production of crops or livestock under the "generally unsuitable" land standard in the statute, rules, and local code provisions pertaining to nonfarm uses on EFU land (OAR 660.033.0020(9); OAR 660.033.0130(4)(c)(ii); ORS 215.263(5)(a)(E), DCC 18.16.050). NRCS soil classification is an objective analytical method of cataloguing the nation's soils on the basis of their agricultural suitability. The Hearings Officer's decision indicates (pp. 2-3) that the CU -07-93 1000 Friends of Oregon May 14, 2008 subject property soils series are Borobey, Gardone, and Stookmore. The official NRCS Descriptions of these soils series are attached. As the attached scientific descriptions indicate, these soils are found in this particular part of Central Oregon, and nowhere else in the world. For example, Borobey soils are found only in: "Deschutes County, Oregon; between Millican and Brothers about 900 feet south of U.S. Highway 20." Gardone soils are found only in" "Deschutes County, Oregon; about 200 feet east and 100 feet south of the northwest corner of Section 14, T. 20 S., R. 14 E." NRCS scientists created the soil series found on the subject property specifically for the purpose of describing the soils they found there and on surrounding lands. Since the soils are so specific to the geographic area of the subject property, the attached NRCS soil data sheets provide essentially irrefutable descriptions of the inherent agricultural uses of these soils: Use and Vegetation: Borobey soils are used for livestock grazing and wildlife habitat. Potential native vegetation is mountain big sagebrush, Idaho fescue, Thurber's needlegrass, western needlegrass, and Ross sedge. Use and Vegetation: Gardone soils are used mostly for livestock grazing and wildlife habitat. The vegetation is mainly mountain big sagebrush, Idaho fescue, and Thurber's needlegrass. Ponderosa pine grows near the upper end of the elevation range on some north -facing aspects. "Use and Vegetation: Stookmoor soils are used for livestock grazing and wildlife habitat. The vegetation is mainly western juniper, mountain big sagebrush, Idaho fescue, bluebunch wheatgrass, Thurber's needlegrass, western needlegrass, Ross sedge, and bottlebrush squirreltail." The soils on the subject property are, as a matter of scientific definition, suitable for livestock grazing. Livestock grazing is an agricultural use in Oregon. In fact, cow calf pairs are second only to nursery crops as the most economically important commodity in Oregon's $4.4 billion agricultural industry. The subject property soils are not of a "low" capability. No given soil class is "high" or "low". Soil classes are indications of the type of agricultural use for which a given soil is suited. Here, the NRCS class indicates these soils are suited for the agricultural use of the grazing of livestock. There are other soil classes that are not capable of supporting the grazing of livestock, but the soils on the subject property are. In short, it is not the case that any piece of land, including the subject property, could have Class VI soils that are not suitable for grazing. It is an oxymoron to state (p. 19) that the presumption of a soil's Class VI suitability for grazing may be overcome by evidence of the "specific characteristics of soils on the subject property". The Class VI classification is the evidence of the specific characteristics of the soils on the subject property. The NRCS classified the soils Class VI because they are suitable for grazing. There is no such thing as soils that are Class VI but not suitable for grazing. CU -07-93 1000 Friends of Oregon May 14, 2008 In summary, we urge you to find that the subject property's Class VI soils are not generally unsuitable for the production of crops or livestock. They are in fact by definition suitable for livestock grazing, an agricultural use. 3. Consideration of Farm Use as a Single Production Unit (pp. 19-22) We respectfully disagree with the Hearings Officer's interpretation of the significance of Wetherell v. Douglas County, 342 Or 666, 160 P2d 614 (2007) to the review of an application for a nonfarm dwelling in the arid agricultural lands of eastern Deschutes County. DCC 18.16.050 does not provide for consideration of the commercial viability of a parcel as a "Single Production Unit". In fact, the reverse is true. DCC 18.16.050(G) (2) and the statute it implements provide that a lot or parcel or portion of a lot or parcel may not be considered "generally unsuitable" simply because it is too small to be farmed profitably by itself.1 The arguments about profitability on pages 19-22 of the Hearings Officer's decision are actually discussions of the parcel's small size in relation to the usual size of commercial ranching operations. Livestock grazing is an agricultural use, and it is the nature of grazing that no small parcel of unirrigated grazing land provides enough nourishment to sustain a commercial livestock herd. Most commercial ranching operations must be at least several hundred acres in extent in order to provide enough forage for a herd of cattle on unirrigated rangeland. The natural vegetation of the subject property as described in the record are plants that livestock use for grazing. They are characteristic of the Millican area's rangeland ecosystem. The compound word "rangeland" includes the verb "to range". This is derived from the fact that animals who graze the plants on these lands "range" across them. Livestock and wildlife that 12. For the purposes of DCC 18.16.050(G) only, "unsuitability" shall be determined with reference to the following: a. A lot or parcel or a portion of 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 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 lot or parcel or portion of 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 or portion of 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 011 surrounding land it must not force a significant change in forest practices or significantly increase the cost of those practices on the surrounding land. CU -07-93 1000 Friends of Oregon May 14, 2008 graze on the native, unirrigated vegetation of rangelands do not stay in one place and obtain nourishment from it. Rather, they range across many areas and obtain some nourishment from each place. The subject property may not be considered unsuitable because of its size if it can reasonably be put to farm use in conjunction with other land. (DCC 18.16.050). Documents and aerial photographs in the record show that grazing is the predominant use in the area. Moving livestock herds between parcels is a common agricultural practice on the BLM and private grazing lands of the Millican Plateau and across Central Oregon. Though it may be too small to support a commercial ranching operation by itself, the subject property may readily be used in conjunction with neighboring lands, and so it fails to meet the generally unsuitable standard. The Wetherell decision does not change this criterion of the generally unsuitable standard. 4. Inherent capability is the relevant question, not current forage condition. The NRCS soils rating for the property indicates that the subject property is definitionally capable of use for livestock grazing. In Moore v. Coos County, LUBA found: An applicant carries the burden to demonstrate that a parcel is generally unsuitable for the production of farm crops and livestock. The question to be answered is whether the subject land, rather than a particular farmer, can produce crops or livestock. Moore v. Coos County, 31 Or LUBA 347 (1996). The scientific literature documents that even a slight change in grazing management practices can result in immediate positive change in vegetative structure and composition on a given parcel. Sparse forage on a relatively small parcel like the subject property can be the result of overgrazing, which occurs when landowners do not have sufficient acreage to allow the forage grasses time to recover each year before they are grazed again. On parcels such as the subject parcel that are known to be inherently suitable for livestock grazing, currently sparse vegetative cover is an argument for very large minimum parcel sizes in the rangeland, and against breaking the rangeland up into numerous homesites such as for the subject nonfarm dwelling. Cumulative nonfarm dwelling approvals will destabilize the land base for agriculture and lead to overgrazing and loss of vegetative composition and structure on the resulting smaller rangeland parcels. CU -07-93 1000 Friends of Oregon May 14, 2008 In closing, we urge you to uphold the Hearings Officer's denial for the reasons outlined above. Thank you for your attention to these views. Best regards, Carol Macbeth Central Oregon Advocate 1000 Friends of Oregon 1155 NW Harmon Boulevard Bend, OR 97701 Attachments: NRCS Borobey Soil Series Description NRCS Gardone Soil Series Description NRCS Stookmore Soil Series Description William Groves From: Saved by Windows Internet Explorer 7 Sent: Tuesday, May 13, 2008 6:47 PM Subject: Official Series Description - BOROBEY Series LOCATION BOROBEY OR Established Series Rev. JSC-TDT-JVC 01/2007 BOROBEY SERIES The Borobey series consists of very deep, somewhat excessively drained soils that formed in pumiceous volcanic ash over alluvium derived from volcanic rocks. Borobey soils are on valley floors and lake terraces. Slopes are 0 to 15 percent. The mean annual precipitation is about 11 inches and the mean annual temperature is about 44 degrees F. TAXONOMIC CLASS: Ashy, glassy, frigid Vitritorrandic Haploxerolls TYPICAL PEDON: Borobey ashy sandy loam --on a 2 percent slope under sagebrush steppe at an elevation of 4,300 feet --rangeland. (Colors are for dry soil unless otherwise noted.) A--0 to 4 inches, grayish brown (10YR 5/2) ashy sandy loam, very dark grayish brown (10YR 3/2) moist; weak thick platy structure; soft, very friable, slightly sticky and nonplastic; many very fine roots; many very fine interstitial pores; neutral; clear smooth boundary. (2 to 10 inches thick) AB --4 to 21 inches; brown (10YR 5/3) ashy sandy loam, dark brown (10YR 3/3) moist; massive; soft, very friable, slightly sticky and nonplastic; common very fine roots; many very fine interstitial pores; neutral; clear wavy boundary. (5 to 30 inches thick) Bq --21 to 51 inches; pale brown (10YR 6/3) ashy sandy loam, dark yellowish brown (10YR 3/4) moist; moderate fine subangular blocky structure; hard, firm and brittle, slightly sticky and slightly plastic; few very fine roots; common very fine tubular pores; neutral; abrupt smooth boundary. (9 to 38 inches thick). 2Bwb--51 to 60 inches; pale brown (10YR 6/3) clay loam, dark yellowish brown (10YR 3/4) moist; moderate fine subangular blocky structure; hard, firm, moderately sticky and moderately plastic; few very fine roots; common very fine tubular pores; neutral. TYPE LOCATION: Deschutes County, Oregon; between Millican and Brothers about 900 feet south of U.S. Highway 20; in the northwest quarter of the northwest quarter of the northwest quarter of section 12, T. 20 S., R. 16 E.; USGS Millican SE 7.5 minute topographic quadrangle; 43 degrees 51 minutes 12 seconds north latitude and 120 degrees 45 minutes 55 seconds west longitude, NAD27. RANGE IN CHARACTERISTICS: 5/14/2008 Soil moisture - These soils are moist in winter and spring but are dry in the moisture control section about 115 to 120 days consecutively in the four-month period following the summer solstice; Aridic moisture regime that borders on xeric. Mean annual soil temperature - 44 to 47 degrees F. Mollic epipedon thickness - 10 to 17 inches. Depth to firm, brittle horizons - 10 to 40 inches. Depth to buried horizons - 40 to more than 60 inches. Depth to bedrock or duripan - more than 60 inches. Vitrandic intergrade properties - Volcanic glass content: 40 to 60 percent in coarse silt through fine sand fractions; Phosphate retention: 15 to 25 percent; Oxalate extractable aluminum plus one-half the oxalate extractable iron: 0.3 to 0.6 percent. Particle -size control section - Clay content: Averages 5 to 15 percent; Rock fragments: 0 to 30 percent, mainly gravel. Lithology of fragments are volcanic rocks such as basalt. A and AB horizons Chroma: 2 or 3, dry or moist. Texture: Ashy sandy loam, gravelly ashy sandy loam, gravelly ashy loamy sand, gravelly ashy sandy loam, ashy very fine sandy loam, or ashy fine sandy loam; some pedons have thin A horizons with texture of ashy loamy sand. Rock fragments: 0 to 25 percent gravel, 0 to 5 percent cobbles. Organic matter content: 0.5 to 3 percent. Reaction: Neutral or slightly alkaline. Other features: Some pedons have thin subhorizons with dry value of 6, but are value 5 when the upper 7 inches of soil is mixed. Bq horizon Value: 5 or 6 dry, 3 or 4 moist. Chroma: 2 through 4, dry or moist. Texture: Ashy sandy loam, gravelly ashy sandy loam, ashy loamy fine sand, or ashy fine sandy loam. Clay content: 4 to 18 percent. Sand content: 55 to 80 percent. Rock fragments: 0 to 25 percent gravel, 0 to 5 percent cobbles. Consistence: Firm and brittle when moist. Reaction: Neutral through moderately alkaline. Salinity (EC): 0 to 2 mmhos/cm. Other features: Some pedons have two Bq horizons. 2Bwb horizon (when present) Texture: Loam or clay loam. Clay content: 15 to 30 percent. Reaction: Neutral through moderately alkaline. Salinity (EC): 0 to 2 mmhos/cm 5/14/2008 C horizon (when present) Value: 4 through 6 dry, 3 or 4 moist. Chroma: 2 through 4, dry or moist. Texture: Ashy loamy sand, ashy sandy loam, gravelly ashy loamy sand, very gravelly ashy loamy coarse sand, or very gravelly ashy sandy loam. Clay content: 3 to 18 percent. Rock fragments: 0 to 50 percent gravel. Reaction: Neutral through moderately alkaline. Salinity (EC): 0 to 2 mmhos/cm. COMPETING SERIES: These are the Boltz, Bonnick, Emamount, Embal, Frentera, Gardone, Oatmanflat, Picturerock, Stookmoor, Tuffcabin, and Wegert series. Boltz soils are moderately deep to paralithic contacts. Bonnick and Gardone soils do not have firm, brittle horizons over 6 inches thick within 40 inches of the soil surface. Emamount soils do not have Bq horizons that are brittle, have 18 to 27 percent clay in the particle -size control section, and have endosaturation between 60 and 72 inches from the soil surface. Embal soils have mollic epipedons 20 to 35 inches thick and have irregular decrease in organic carbon with depth. Frentera, Stookmoor, and Wegert soils are moderately deep to lithic contacts. Oatmanflat and Tuffcabin soils have buried duripans within 60 inches of the soil surface. Picturerock soils do not have firm, brittle horizons within 40 inches of the soil surface and have horizons with identifiable secondary carbonates. GEOGRAPHIC SETTING: Borobey soils are on valley floors and lake terraces. These soils formed in pumiceous volcanic ash over alluvium derived from volcanic rocks. Slopes are 0 to 15 percent. Elevations range from 4,200 to 5,300 feet. The climate is semiarid and characterized by cold, moist winters and warm, dry summers. The mean annual precipitation is 8 to 12 inches. The mean annual temperature is 42 to 45 degrees F., mean January temperature is 27 to 29 degrees F., and the mean July temperature is 59 to 61 degrees F. The frost -free period is 50 to 90 days. GEOGRAPHICALLY ASSOCIATED SOILS: These are the competing Gardone and Stookmoor soils. DRAINAGE AND PERMEABILITY: Somewhat excessively drained; low surface runoff; moderately rapid permeability in the surface and subsurface horizons, moderately slow permeability in the firm, brittle horizon, and moderate to moderately slow permeability in the buried horizon. USE AND VEGETATION: Borobey soils are used for livestock grazing and wildlife habitat. Potential native vegetation is mountain big sagebrush, Idaho fescue, Thurber's needlegrass, western needlegrass, and Ross sedge. DISTRIBUTION AND EXTENT: Central Oregon. These soils are moderately extensive. MLRA 23. MLRA OFFICE RESPONSIBLE: Reno, Nevada. SERIES ESTABLISHED: Deschutes County (Upper Deschutes River Area), Oregon, 1992. REMARKS: Diagnostic horizons and features recognized in this pedon are: Mollic epipedon - The zone from the soil surface to 15 inches (A horizon and part of the AB horizon). Dark Munsell colors extend to 21 inches, but organic matter content is less than one percent below 15 5/14/2008 inches. Duric feature - The zone from 21 to 51 inches (Bq horizon). Vitrandic intergrade feature - The zone from the soil surface to 30 inches (A and AB horizons and part of the Bq horizon). Major lithologic discontinuity - The abrupt change to non -ashy material at 51 inches. Buried horizon - The zone from 51 to 60 inches (2Bwb horizon). Particle -size control section and ashy substitute class with glassy mineralogy - The zone from 10 to 40 inches (parts of the AB and Bq horizons). This series was revised in 1999 to eliminate the Deep depth class. The phase of Borobey which is deep to a duripan from the Upper Deschutes River Area soil survey needs correlation to another series. ADDITIONAL DATA: The typical pedon at the series type location was reference sampled for the Soil Survey Laboratory (SSL), Lincoln, NE, as soil survey sample number S890R-017-001. Data for optical grain counts of volcanic glass content, oxalate extractions for iron, aluminum, and silicon, and phosphate retention are available for the first three horizons of the typical pedon. National Cooperative Soil Survey U.S.A. 5/14/2008 William Groves From: Saved by Windows Internet Explorer 7 Sent: Tuesday, May 13, 2008 6:47 PM Subject: Official Series Description - GARDONE Series LOCATION GARDONE OR Established Series Rev. JSC-TDT-JVC 01/2007 GARDONE SERIES The Gardone series consists of very deep, excessively drained soils that formed in eolian deposits derived from pumiceous volcanic ash. Gardone soils are on lava plains. Slopes are 0 to 20 percent. The mean annual precipitation is about 11 inches and the mean annual temperature is about 44 degrees F. TAXONOMIC CLASS: Ashy, glassy, frigid Vitritorrandic Haploxerolls TYPICAL PEDON: Gardone ashy sand --rangeland. (Colors are for dry soil unless otherwise noted.) A--0 to 10 inches; dark grayish brown (10YR 4/2) ashy sand, very dark brown (10YR 2/2) moist; weak thin platy structure; soft, very friable, nonsticky and nonplastic; many fine roots; many medium irregular pores; 5 percent gravel; neutral (pH 6.8); clear wavy boundary. (2 to 10 inches thick) AC --10 to 21 inches; grayish brown (10YR 5/2) ashy loamy sand, very dark grayish brown (10YR 3/2) moist; single grain; loose, nonsticky and nonplastic; common very fine roots; many fine and many medium irregular pores; 10 percent gravel; neutral (pH 7.0); clear wavy boundary. (10 to 20 inches thick) C1--21 to 34 inches; pale brown (10YR 6/3) ashy loamy sand, very dark grayish brown (10YR 3/2) moist; single grain; loose, nonsticky and nonplastic; few very fine roots; many fine and many medium irregular pores; 5 percent gravel; neutral (pH 7.0); clear wavy boundary. (10 to 20 inches thick) C2--34 to 60 inches; light brownish gray (10YR 6/2) ashy loamy sand, very dark grayish brown (10YR 3/2) moist; single grain; loose, nonsticky and nonplastic; few very fine roots; many fine and many medium irregular pores; 5 percent gravel; neutral (pH 7.0). TYPE LOCATION: Deschutes County, Oregon; about 200 feet east and 100 feet south of the northwest corner of section 14, T. 20 S., R. 14 E. RANGE IN CHARACTERISTICS: Soil moisture - Usually moist in the moisture control section in winter and spring, dry in summer and fall. They are warmer than 41 degrees F. from April 15 to November 1, and they are dry within this period after July 1; Aridic moisture regime that borders on xeric. 5/14/2008 Mean annual soil temperature - 44 to 47 degrees F. Mollie epipedon thickness - 10 to 15 inches; Dark Munsell colors, both moist and dry, will extent to a depth of over 20 inches but organic matter content is less than one percent. Depth to buried loamy horizons - 40 inches to more than 60 inches. Depth to bedrock - more than 60 inches. Vitrandic intergrade properties - Volcanic glass content: 40 to 60 percent in coarse silt through fine sand fractions; Phosphate retention: 15 to 25 percent; Oxalate extractable aluminum plus one-half oxalate extractable iron: 0.3 to 0.6 percent. Particle -size control section - Clay content: 0 to 5 percent; Rock fragments: Averages 0 to 25 percent pebbles. Lithology of fragments are volcanic rocks such as basalt. A horizon Value: 4 or 5 dry, 2 or 3 moist. Rock fragments: 0 to 15 percent pebbles. Organic matter content: 1 or 2 percent. AC horizon Chroma: 2 or 3, dry or moist. Texture: Ashy loamy sand, ashy sand, or gravelly ashy loamy sand. Rock fragments: 0 to 25 percent pebbles. Reaction: Neutral or slightly alkaline. C horizons Value: 4 through 7 dry, 3 through 7 moist. Chroma: 2 or 3, dry or moist. Texture: Ashy loamy sand, ashy sand, or gravelly ashy loamy sand. Rock fragments: 0 to 25 percent pebbles. Reaction: Neutral or slightly alkaline. Other features: Some pedons have buried horizons at 40 to 60 inches with texture of loam. COMPETING SERIES: These are the Boltz, Bonnick, Borobey, Emamount, Embal, Frentera, Oatmanflat, Picturerock, Stookmoor, Tuffcabin, and Wegert series. Boltz soils are moderately deep to paralithic contacts. Bonnick soils have very gravelly or extremely gravelly textures within 60 inches of the soil surface. Borobey soils have firm, brittle horizons within 40 inches of the soil surface. Emamount soils have 18 to 27 percent clay in the particle -size control section and have endosaturation between 60 and 72 inches from the soil surface. Embal soils have mollic epipedons 20 to 35 inches thick, do not have ashy sandy textures in the particle -size control section, and have irregular decrease in organic matter with depth. Frentera, Stookmoor, and Wegert soils are moderately deep to lithic contacts. Oatmanflat and Tuffcabin soils are deep to buried duripans and do not have ashy sandy textures in the particle -size control section. Picturerock soils have cambic horizons, horizons with identifiable secondary carbonates, and do not have ashy sandy textures in the particle -size control section. 5/14/2008 GEOGRAPHIC SETTING: Gardone soils are on lava plains. These soils formed in eolian deposits derived from pumiceous volcanic ash. Slopes are 0 to 20 percent. Elevations range from 4,000 to 5,000 feet. The climate is semiarid and characterized by cold, moist winters and warm, dry summers. The mean annual precipitation is 10 to 12 inches. The mean annual temperature is 42 to 45 degrees F., mean January temperature is 26 to 29 degrees F., and the mean July temperature is 59 to 61 degrees F. The frost -free period is 50 to 90 days. GEOGRAPHICALLY ASSOCIATED SOILS: These are the competing Bonnick, Borobey, and Stookmoor soils and the Milcan and Fort Rock soils. DRAINAGE AND PERMEABILITY: Excessively drained; negligible or very low surface runoff; permeability is rapid (high or very high saturated hydraulic conductivity) except where the loamy substratum is present. The loamy material when present has a moderate permeability (moderately high or high saturated hydraulic conductivity). USE AND VEGETATION: Gardone soils are used mostly for livestock grazing and wildlife habitat. The vegetation is mainly mountain big sagebrush, Idaho fescue, and Thurber's needlegrass. Ponderosa pine grows near the upper end of the elevation range on some north -facing aspects. DISTRIBUTION AND EXTENT: Central and south-central Oregon. These soils are moderately extensive. MLRA 23. MLRA OFFICE RESPONSIBLE: Reno, Nevada. SERIES ESTABLISHED: Deschutes County (Upper Deschutes River Area), Oregon, 1992. REMARKS: Diagnostic horizons and features recognized in this pedon are: Mollic epipedon - The zone from the soil surface to 10 inches (A horizon). Vitrandic intergrade feature - The zone from the soil surface to 30 inches (A and AC horizons and part of the C1 horizon). Particle -size control section and ashy substitute class with glassy mineralogy - The zone from 10 to 40 inches (AC horizon and parts of the Cl and C2 horizons). The revision of January 2002 moved the type location from Lake County to Deschutes County, Oregon, to a soil survey area where Gardone is a correlated component. ADDITIONAL DATA: Soil Characterization data on pedon S79OR-017-5 reported in Oregon State University Soils Laboratory Report, and for Soil Survey Laboratory (SSL) pedons with soil survey sample numbers S89OR-017-004 (pedon # 89P0791) and S89OR-017-005 (pedon # 89P0792) for andic soil properties analysis. National Cooperative Soil Survey U.S.A. 5/14/2008 William Groves From: Saved by Windows Internet Explorer 7 Sent: Tuesday, May 13, 2008 6:46 PM Subject: Official Series Description - STOOKMOOR Series LOCATION STOOKMOOR OR Established Series Rev. JSC-TDT-JVC 01/2007 STOOKMOOR SERIES The Stookmoor series consists of moderately deep, somewhat excessively drained soils that formed in volcanic ash and in slope alluvium derived from basalt. Stookmoor soils are on structural benches and plateaus. Slopes are 1 to 50 percent. The mean annual precipitation is about 11 inches and the mean annual temperature is about 44 degrees F. TAXONOMIC CLASS: Ashy, glassy, frigid Vitritorrandic Haploxerolls TYPICAL PEDON: Stookmoor ashy loamy sand --on a structural bench under Idaho fescue, mountain big sagebrush, and western juniper sloping 1 percent at an elevation of 4,320 feet --rangeland. (Colors are for dry soil unless otherwise noted.) A--0 to 6 inches; grayish brown (10YR 5/2) ashy loamy sand, very dark grayish brown (10YR 3/2) moist; weak thick platy structure; soft, very friable, nonsticky and nonplastic; many very fine and fine roots; many interstitial pores; about 50 percent sand -size pumiceous ash grains; moderately alkaline; clear wavy boundary. (3 to 8 inches thick) AB --6 to 14 inches; grayish brown (10YR 5/2) ashy sandy loam, very dark grayish brown (10YR 3/2) moist; massive; slightly hard, friable, nonsticky and nonplastic; many very fine and fine roots; many interstitial pores; about 50 percent sand -size pumiceous ash grains; moderately alkaline; abrupt wavy boundary. (6 to 15 inches thick) Bq --14 to 24 inches; pale brown (10YR 6/3) ashy sandy loam, dark brown (10YR 3/3) moist; massive; very hard, very firm and brittle; slightly sticky and slightly plastic; few very fine roots, common very fine discontinuous tubular pores; about 15 percent sand -size pumiceous ash grains; moderately alkaline; abrupt wavy boundary. (6 to 18 inches thick) 2R--24 inches; basalt. TYPE LOCATION: Deschutes County, Oregon; about 3.5 miles north of Millican and U.S. Highway 20; in the northwest quarter of the southwest quarter of the northwest quarter of section 11, T. 19 S., R. 15 E.; USGS Millican 7.5 minute topographic quadrangle; 43 degrees 56 minutes 26 seconds north latitude and 120 degrees 54 minutes 01 second west longitude, NAD27. 5/14/2008 RANGE IN CHARACTERISTICS: Soil moisture - Moist in the moisture control section in winter and spring, dry in summer and fall. Warmer than 41 degrees F., from about April 15 to November 1, and the soils are dry within this period after July 1; Aridic moisture regime that borders on xeric. Mean annual soil temperature - 45 to 47 degrees F. Mollic epipedon thickness - 10 to 15 inches. Depth to firm, brittle horizons - 14 to 20 inches. Depth to bedrock - 20 to 40 inches to a lithic contact. Vitrandic intergrade properties - Volcanic glass content: 40 to 60 percent in coarse silt through fine sand fractions; Phosphate retention: 15 to 25 percent; Oxalate extractable aluminum plus one-half oxalate extractable iron: 0.3 to 0.6 percent. Particle -size control section - Clay content: 10 to 20 percent. A horizon Value: 4 or 5 dry, 2 or 3 moist. Texture: Ashy loamy sand or gravelly ashy loamy sand. Rock fragments: 0 to 25 percent gravel, 0 to 10 percent cobbles. Organic matter content: 1 or 2 percent. AB horizon Chroma: 2 or 3, dry or moist. Texture: Ashy loam, gravelly ashy sandy loam, or ashy sandy loam. Clay content: 10 to 20 percent. Rock fragments: 0 to 25 percent gravel, 0 to 10 percent cobbles. Organic matter content: 1 or 2 percent. Bq horizon Value: 6 or 7 dry, 3 or 4 moist. Chroma: 3 or 4, dry or moist. Texture: Ashy loam, gravelly ashy sandy loam, or ashy sandy loam. Clay content: 10 to 20 percent. Rock fragments: 0 to 25 percent gravel, 0 to 10 percent cobbles. Consistence: Hard or very hard dry, firm or very firm and brittle when moist. COMPETING SERIES: These are the Boltz, Bonnick, Borobey, Emamount, Embal, Frentera, Gardone, Oatmanflat, Picturerock, Tuffcabin, and Wegert series. Boltz soils are moderately deep to paralithic contacts. Bonnick, Borobey, Emamount, Embal, Gardone, and Picturerock soils are very deep. Frentera soils have cambic horizons and do not have firm, brittle horizons. Oatmanflat and Tuffcabin soils are deep to buried duripans. Wegert soils do not have firm, brittle horizons, have ashy sandy textures in the particle -size control section, and have subhorizons above the lithic contact with greater than 40 percent rock fragments. 5/14/2008 GEOGRAPHIC SETTING: Stookmoor soils are on structural benches and plateaus. These soils formed in volcanic ash and in slope alluvium derived from basalt. Volcanic ash deposits are derived from ancestral Mt. Mazama and from the Newberry Crater volcano. Elevations range from 4,300 to 4,800 feet. Slopes are 1 to 50 percent. The climate is semiarid and characterized by cold, moist winters and warm, dry summers. The mean annual precipitation is 10 to 12 inches, the mean annual temperature is 43 to 45 degrees F., and the frost -free period is 50 to 90 days. GEOGRAPHICALLY ASSOCIATED SOILS: These are the competing Borobey and Gardone soils and the Milcan soil. Milcan soils are deeper than 60 inches to bedrock and have an indurated duripan at depths of 20 to 40 inches. DRAINAGE AND PERMEABILITY: Somewhat excessively drained; low to high surface runoff; moderately slow or slow permeability (moderately low or moderately high saturated hydraulic conductivity) in the firm, brittle horizon. USE AND VEGETATION: Stookmoor soils are used for livestock grazing and wildlife habitat. The vegetation is mainly western juniper, mountain big sagebrush, Idaho fescue, bluebunch wheatgrass, Thurber's needlegrass, western needlegrass, Ross sedge, and bottlebrush squirreltail. DISTRIBUTION AND EXTENT: Central Oregon. These soils are moderately extensive. MLRA 23. MLRA OFFICE RESPONSIBLE: Reno, Nevada. SERIES ESTABLISHED: Deschutes County (Upper Deschutes River Area), Oregon, 1992. REMARKS: Diagnostic horizons and features recognized in this pedon are: Mollie epipedon - The zone from the soil surface to 14 inches (A and AB horizons). Vitrandic intergrade feature - The zone from the soil surface to 24 inches (A, AB, and Bq horizons). Duric feature - The zone from 14 to 24 inches (Bq horizon). Lithic contact - The boundary at 24 inches to underlying hard bedrock (2R layer). Particle -size control section and ashy substitute class with glassy mineralogy - The zone from 10 to 24 inches (Bq horizon and part of the AB horizon). ADDITIONAL DATA: Partial laboratory data are available for this pedon from the Soil Survey Laboratory, Lincoln, NE, as soil survey sample number S890R-017-006: Soil characterization data on one pedon (S790R-017-8) reported in Oregon State University Soils Laboratory. National Cooperative Soil Survey U.S.A. 5/14/2008 William Groves From: Stephen Roth [rothstephen@netscape.net] Sent: Tuesday, May 13, 2008 8:54 PM To: William Groves Subject: Letter for CU -07-93 file A-08-4 for hearing Dear County Commissioners: I am writing in regards to Keith and Janet Nash's proposed non-farm dwelling. The Evan's Well ranch (Nash ranch) bordered the ranch I used to own at Pine Mountain. I sold my ranch for a variety of reasons but the two main were conflicts with recreationalist, and profitability. I have since purchased a ranch farther from urban areas that has a hay base. I know that the issue at hand is not if building non-farm dwellings or encouraging increased recreationist days is good for the Millican valley. The question is if a 160 acre legal lot of record can be a farm, and if not, can adding an additional 320 acres make a viable operation. I am qualified to answer this question because I tried to make a living ranching in the Millican valley, have moved to a more profitable location, and have a degree in Agricultural Economics from Oregon State University. While owning Pine Mountain ranch I had 4,200 deeded acres along with a 5,200 acre BLM allotment and 17,000 acre National Forest permit. I ran between 200 and 660 head of yearling cattle from March to August. Some years I did well, but most years I had to supplement my income by working off the farm. Pine Mountain ranch would have been viable if I had irrigation to produce affordable hay, or a much larger winter grazing permit. My answer to the question of can a 160 acre parcel or 480 acre parcel be a farm, is absolutely not. It is unimaginable that someone can exist with 10% of the deeded property that I had, and no BLM or Forest Service permits as a farm. If almost any portion of the land was irrigated, the equations would be different. When I purchased the ranch in 1998 there was still a possibility to apply for water rights from the state. I did not because the highest static level on my wells was 420 feet, and the expense in lifting the water was prohibitive. Not only that, but Millican is only served with single phase power. Central Electric Coop will not attach pumps with more than 25 horsepower to a single phase system. (For comparison the field I'm now developing has a 200 horsepowr motor and static level of 132 feet.) Now Millican valley has been included in the Deshutes Water Basin, and so no new water rights are granted from the state. History can show if the Millican valley was ever suitable to small farm sizes. Homesteaders were allowed between 160 and 640 acres depending on the current laws. None of these small farms lasted much longer than it took to patent the land Millican Memories a book by Jo Smith Southworth, states that by the 1930's there were no homesteaders left in the Millican Valley. Her family was forced to sell Pine Mountain ranch due to a lack of profitability. Much of the land went back to the county and was sold at sheriff's auctions to cover back taxes. The land that I currently own was sold not once but twice by the Deshutes county sheriff. The real question is how much forage can a 160, or 480 acre dry parcel produce. Below is a chart of BLM and National Forest service allotments, and their numbers of acres required to maintain one cow 5/14/2008 and her calf for one month (an Animal Unit Month, or AUM.) The closest allotment that I am familiar with to the parcel in question requires 16.6 acres per cow: If you had 480 acres you could sustain almost 6 cows for 5 months (480/16.6=29 aums) If the parcel was as good as the best permit, it could support 14 cows for 5 months. If you get $1.20 for a 500 pound calf, your gross will be $600 per cow. If you feed 28 pounds of hay per day for 7 months to your cows, and pay $130 per ton for your hay expenses will come to $382. If you don't take into consideration bull costs, death loss, depreciation, interest, labor, conception rates, vet fees, and marketing costs, the net per calf is $218. Using 14 head the farm owner will pocket $3,052. Allotment Acres Animal Unit Months Acres/AUM Ram Lake: BLM 12,800 815 15.7 Pine Mountain: BLM 5,200 312 16.6 Pine Mountain: USNF 17,023 2,500 6.8 Hampton Butte: BLM 58,300 6,600 8.8 The 160 acre parcel cannot make a farm. The 160 acre parcel plus a 320 acre lot of record does not make a farm. If you were to attach a BLM grazing permit, or water rights, it could be a marginal farm. Thank you very much for your time Stephen Roth If you have any questions: 41600 HWY 20 Brothers, OR 97712 541-410-1012 (Please don't make my address and phone part of the public record.) Plan your next roadtrip with MapQuest.com: America's #1 Mapping Site. 5/14/2008 Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 (541)317-1993 fax (541) 383-3470 pdewey !,bendcable. com May 14, 2008 Board of County Commissioners Deschutes County c/o Will Groves, Community Development Dept. 117 NW Lafayette Bend, OR 97701-1925 Re: CU -07-93; A-08-4; Nash Application Dear Commissioners: On behalf of Central Oregon LandWatch I am writing in opposition to this appeal and incorporate by reference the letter from 1000 Friends of Oregon dated May 13, 2008. Also, as argued earlier by LandWatch, we believe that the dwelling or activities associated with the dwelling will force a significant change in or the cost of accepting farming practices and further that the dwelling will materially alter the stability of the overall land use pattern of this area which has apparently not yet seen any non-farm dwellings. Very truly yours, PAUL DEWEY PD:ao Enclosure cc: Board Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, MAY 14, 2008 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend 1. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Citizens who wish to speak should sign up prior to the beginning of the meeting on the sign-up cards provided. Please use the microphone and also state your name and address at the time the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the record of that hearing. 2. CONSIDERATION of Signature of Document No. 2008-209, the State 2008- 09 Annual Plan for the Health Department — Dan Peddycord, Health Department 3. CONSIDERATION of Signature of Resolution No. 2008-049, Appointing a Financial Assistance Administrator for Subcontracted Services. —Dan Peddycord, Health Department 4. CONSIDERATION of Signature of Order No. 2008-030, Detetntining a Fee Necessary to Pay the Expenses of Providing Mediation Services in Deschutes County Domestic Relations Suits. — Dave Kanner, County Administrator 5. CONSIDERATION of Second Reading and Adoption of Ordinance No. 2008-002, Adding County Audit Committee Language to Code — David Givans, Internal Auditor 6. CONSIDERATION of Signature of Order No. 2008-032, Surrendering Portions of NW Male Avenue, 27th Street, SW Obsidian Avenue, SW Quartz Avenue and SW 35t Street to the City of Redmond — George Kolb, Road Department Board of Commissioners' Business Meeting Agenda Wednesday, May 14, 2008 Page 1 of 8 Pages 15. Signature of County Administrator of Document No. 2008-231, a Right -of - Entry for the Oregon Department of Transportation to Conduct a Site Inspection on County -owned Land in La Pine 16. Signature of Document No. 2008-162, an Intergovernmental Office Space Lease Amendment with the Oregon Judicial Department (Citizen Review Board) 17. Signature of Resolution No., 2008-052, Appropriating a New Grant in the Mental Health Dept talent (Acute Care Regional Plan) 18. Signature of Resolution No. 2008-055, Transfer of Appropriations (Law Library Fund) 19. Approval of Minutes: • Work Sessions: April 21, 28 and May 5 • Business Meetings: April 23, 28, 30; May 5 and 7 • Hearing: March 19 La Pine Groundwater 20. Economic Development Grant Request: • La Pine Park & Recreation District — Teen Lounge. Commissioners Luke and Melton each granted $500 CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 21. CONSIDERATION of Approval of Accounts Payable Vouchers for the 9-1-1 County Service District CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 22. CONSIDERATION of Approval of Accounts Payable Vouchers for the Extension/4-H County Service District RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS Board of Commissioners' Business Meeting Agenda Wednesday, May 14, 2008 Page 3 of 8 Pages Thursday, May 22, 2008 1:00 p.m. Budget Meeting Friday, May 23, 2008 9:00 a.m. Budget Meeting Monday, May 26, 2008 Most County offices will be closed to observe Memorial Day Monday, May 28, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Monday, June 2, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) 5:00 p.m. (Tentative) Joint work session with the City of Bend Council, at the County Tuesday, June 3 through Friday, June 6 Association of Counties Spring Conference Monday, June 9, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Wednesday, June 11, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Thursday, June 12, 2008 9:00 a.m. Quarterly Update — Mental Health Department Board of Commissioners' Business Meeting Agenda Wednesday, May 14, 2008 Page5of8Pages Wednesday, July 2, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Thursday, July 3, 2008 8:00 a.m. Regular Meeting with the City of Sisters Council, in Sisters Friday, July 4, 2008 Most County offices will be closed to observe the July 4`h Holiday Monday, July 7, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, July 9, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Thursday, July 10, 2008 7:00 a.m. Regular Meeting with the City of Redmond Council, in Redmond 12:00 noon Audit Committee Meeting Tuesday, July 15, 2008 10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee Wednesday, July 16, 2008 1:30 p.m. Administrative Work Session — could include executive session(s) Monday, July 19, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session — could include executive session(s) Board of Commissioners' Business Meeting Agenda Wednesday, May 14, 2008 Page 7 of 8 Pages Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org AGENDA REQUEST & STAFF REPORT For Board Business Meeting of May 14, 2008 Please see directions for completing this document on the next page. DATE: April 11, 2008 FROM: Will Groves Community Development Department 388-6518 TITLE OF AGENDA ITEM: A Public Hearing on 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). PUBLIC HEARING ON THIS DATE? Yes. BACKGROUND AND POLICY IMPLICATIONS: 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 the appeal will be heard limited de novo, in accordance with DCC 22.32.027(B)(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 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. The Hearings Officer 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 denied the application. Appellant argues that the economics of dry -land grazing and use changes in the area render the property effectively unsuitable for grazing in conjunction with the applicants' existing cattle operation. Appellant argues that the subject property, managed in conjunction with applicant's adjacent ranching operations is effectively unsuitable because the subject property would generate very little livestock value. FISCAL IMPLICATIONS: None RECOMMENDATION & ACTION REQUESTED: Conduct limited de novo hearing. ATTENDANCE: Will Groves DISTRIBUTION OF DOCUMENTS: Legal Counsel Will Groves INSTRUCTIONS FOR COMPLETING THE AGENDA REQUEST FORM Use "tab" to move between fields. You can use as much space as necessary within each field. Do not leave any fields incomplete. Don't forget the "preferred meeting date" section. Incomplete documents will be returned to the Department Director. This could cause your agenda item to miss the deadline for submission. Monday Board business meetings typically address land use issues, and Wednesday business meetings are for other County business. (If there is only one meeting scheduled for the week, all agenda items are addressed at that time.) Agenda requests & backup for land use items are to be submitted by noon on Tuesday prior to the meeting date. Agenda requests & backup for the Wednesday meeting must be submitted to the Board Secretary no later than noon of the Wednesday prior to the meeting. If you are submitting a contract or other document where more than one original is needed (for instance, one original for the County and one for the contractor), please submit the correct number of original documents. In addition to submitting the agenda request form with your documents, submit this form electronically to the Board Secretary. Unless your agenda item is an Order, Ordinance, Resolution or letter, a Document Summary Form is required as well. Please see the "Board Agenda Procedures and Document Checklist" document for further directions, or contact Board staff at 388-6572. NOTICE OF PUBLIC HEARING The Deschutes County Board of Commissioners will hold a Public Hearing on May 14, 2008 at 10:00 A.M. in the Barnes and Sawyer rooms of the Deschutes Services Building located at 1300 NW Wall Street in Bend, to consider the following request: FILE NUMBER: A-08-4 and CU -07-93 APPLICANT: OWNER: REQUEST: LOCATION: STAFF CONTACT: Land Use Consulting 510 NE 3rd Ct Bend, Or 97701 Nash, Charles K Nash, Janet M 25700 Spencer Wells Rd Bend Or 97701 An Appeal of the Hearings Officer's Decision Denying a Non-farm Dwelling on a Parcel in the Exclusive Farm Use (EFU-HR) Zone. Assessor's Map 19-14-00, Tax Lot 1401. Will Groves, Senior Planner A copy of the staff report, application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at the Planning Division at no cost, and can be purchased for 25 cents a page. They are also available on-line at: www.co.deschutes.or.us/cdd/. The meeting location is wheelchair accessible. For the deaf or hearing impaired, an interpreter or assistant listening system will be provided with 48 hours notice. Materials in alternate formats may be made available with 48 hours notice by dialing 541-388- 6621. For other assistance, please dial 7-1-1, State Relay Service. Please contact Will Groves, Senior Planner (willg@deschutes.org) with the County Planning Division at (541) 388-6518 if you have any questions. 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/ CERTIFICATE OF MAILING FILE NUMBER: A-08-4 and CU -07-93 DOCUMENTS MAILED: Notice of Public Hearing MAP AND TAX LOT NUMBER(S): Assessor's Map 19-14-00, Tax Lot 1401. LOOKUP AREA: 750' I certify that on the day of April, 2008, the attached notice/report, dated April 2008, was mailed by first class mail, postage prepaid, to the person(s) and address(es) set forth on the attached list. DATED this day of April, 2008. COMMUNITY DEVELOPMENT DEPARTMENT By: Land Use Consulting 510 NE 3rdCt Bend, Or 97701 Nash, Charles K Karen Green Nash, Janet M 25700 Spencer Wells Rd Bend Or 97701 Quality Services Performed with Pride Paul Dewey 1539 NW Vicksburg Bend, Or 97701 Molly Brown . 3050 NE 3rd Street Prineville, Or 97754 Ed Dorsett 61261 King Solomon Bend Or, 97702 Craig Jones Austin Supica 2020 NE Linnea Dr, Bend, Or 97701 Daniel Boordky 24931 Elk Ln Bend, Or 97701 Chris Bon 707 NE Holley Prineville, Or 97754 Dave Arata 63260 Wishing Well Ln. Bend, Or 97701 Chris (Unreadable) 244 NW Greenwood Ave. Bend, Or 97701 Joseph Hit 1884 NE Yellowstone Ln Bend, Or 97701 Kristina Newman 707 NE Holley St Prineville, Or 97754 Steven George ODFW 61374 Parrell Road Bend, Or 97702 John Statz 5680 Oregon Road Mt. Hood, Or 97041 Flora Steffan 56400 Spencer Wells Road Bend, Or 97701 Jim Anderson PO Box 1513 Sisters, Or 97759 Quality Services Performed with Pride TSS 0 0 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/ NOTICE OF PUBLIC HEARING The Deschutes County Board of Commissioners will hold a Public Hearing on May 14, 2008 at 10:00 A.M. in the Barnes and Sawyer rooms of the Deschutes Services Building located at 1300 NW Wall Street in Bend, to consider the following request: FILE NUMBER: A-08-4 and CU -07-93 APPLICANT: OWNER: REQUEST: Land Use Consulting 510 NE 3rdCt Bend, Or 97701 Nash, Charles K Nash, Janet M 25700 Spencer Wells Rd Bend Or 97701 An Appeal of the Hearings Officer's Decision Denying a Non-farm Dwelling on a Parcel in the Exclusive Farm Use (EFU-HR) Zone. LOCATION: Assessor's Map 19-14-00, Tax Lot 1401. STAFF CONTACT: Will Groves, Senior Planner ALL INTERESTED PERSONS MAY APPEAR, BE HEARD, BE REPRESENTED BY COUNSEL, OR SEND WRITTEN SIGNED TESTIMONY. ALL WRITTEN REPLIES MUST BE RECEIVED BY THIS DEPARTMENT PRIOR TO THE HEARING DATE OR SUBMITTED AT THE HEARING. ANY PARTY TO THE APPLICATION IS ENTITLED TO A CONTINUANCE OF THE INITIAL EVIDENTIARY HEARING OR TO HAVE THE RECORD LEFT OPEN IN ACCORDANCE WITH SECTION 22.24.140 OF THE DESCHUTES COUNTY CODE. Recipients of this notice may request a copy of the Staff Report (25 cents a page). Any person submitting written comment or who presents testimony at the hearing will receive a copy of the decision. Failure to raise an issue in person at the hearing or in writing precludes appeal by that person to the Land Use Board of Appeals (LUBA). Failure to provide statements of evidence sufficient to afford the decision -maker an opportunity to respond to the issue precludes appeal to LUBA based on that issue. Quality Services Performed with Pride A copy of the application, all documents and evidence submitted by or on behalf of the applicant and applicable criteria are available for inspection at the Planning Division at no cost, and can be purchased for 25 cents a page. STANDARDS AND APPLICABLE CRITERIA A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.04 Title, Purpose and Definitions 2. Chapter 18.16 Exclusive Farm Use (EFU) Zone B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance C. Oregon Administrative Rules Chapter 660, Land Conservation and Development Commission The meeting location is wheelchair accessible. For the deaf or hearing impaired, an interpreter or assistant listening system will be provided with 48 hours notice. Materials in alternate formats may be made available with 48 hours notice by dialing 541-388- 6621. For other assistance, please dial 7-1-1, State Relay Service. NOTICE TO MORTGAGEE, LIENHOLDER, VENDOR OR SELLER: ORS CHAPTER 215 REQUIRES THAT IF YOU RECEIVE THIS NOTICE, IT MUST PROMPTLY BE FORWARDED TO THE PURCHASER. Please contact Will Groves with the County Planning Division at (541) 388-6518 if you have any questions. Dated this of April 2008 Mailed this of April 2008 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. 1 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 -T ES C.‘. 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/ April 11, 2008 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 thatit 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. lit. 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 REVIEWED LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Accepting Review of Hearings Officer's Decision in File no. CU -07-93 (A-08-4) * * ORDER NO. 2008-034 WHEREAS, Applicants Charles and Janet Nash appealed the Deschutes County Hearings Officer's decision on application number CU -07-93; and WHEREAS, Section 22.32.027 of the Deschutes County Code allows the Board of County Commissioners (Board) discretion on whether to hear appeals of Hearings Officer's decisions; and WHEREAS, the applicant provided written consent to extend the 150 -day clock to July 30, 2008; and WHEREAS, the Board has given due consideration as to whether to review this application on appeal; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. That it will hear the applicant's appeal for Case Number 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. Section 2. The appeal 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). Section 3. The 150 -day clock is extended to July 30, 2008. /// PAGE 1 OF 2 - ORDER NO. 2008-034 (4/9/08) 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. r 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