HomeMy WebLinkAboutOrdinance 2014-027 - PA Ramsey - Exhibit F HO DecisionDECISION OF DESCHUTES COUNTY HEARINGS OFFICER
APPLICANT/
PROPERTY OWNER:
APPLICANT'S
ATTORNEY:
REQUEST:
STAFF REVIEWER:
HEARING DATES:
RECORD CLOSED:
Claudia Powell, Trustee
Frances Ramsey Trust Agreement dated May 23, 1979
c/o Bryant Lovlien & Jarvis, PC
591 S.W. Mill View Way
Bend, Oregon 97702
Sharon R. Smith
Bryant Lovlien & Jarvis PC
591 S.W. Mill View Way
Bend, Oregon 97702
The applicant requests approval of a plan amendment and zone
change from EFU to RI, and a goal exception, for a 2.65 -acre site
located at Deschutes Junction north of Bend.
Will Groves, Senior Planner
June 10, July 29, and August 19, 2014
August 26, 2014
I. APPLICABLE STANDARDS AND CRITERIA:
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.136, Amendments
* Section 18.136.020, Rezoning Standards
B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance
1. Chapter 22.20, Review of Land Use Action Applications
2. Chapter 22.24, Land Use Action Hearings
* Section 22.24.140, Continuances and Record Extensions
C. Title 23 of the Deschutes County Code, the Year 2000 Comprehensive Plan
1. Chapter 2, Resource Management
* Section 2.2, Agricultural Lands Policies
2. Chapter 3, Rural Growth
* Section 3.7, Transportation System Plan
Powell/Ramsey, PA -14-2, ZC-14-2 Page 1 of 47
D. Oregon Administrative Rules (OAR) Chapter 660, Land Conservation and
Development Commission
1. Division 4, Interpretation of Goal 2 Exception Process
* OAR 660-004-0010, Application of the Goal 2 Exception Process to Certain
Goals
* OAR 660-004-0018, Planning and Zoning for Exception Areas
* OAR 660-004-0020, Goal 2, Part II (c), Exception Requirements
* OAR 660-004-0022, Reasons Necessary to Justify An Exception Under
Goal 2, Part II (c)
* OAR 660-004-0028, Exception Requirements for Land Irrevocably
Committed to Other Uses
2. Division 12, Transportation Planning Rule
* OAR 660-012-0060, Plan and Land Use Regulation Amendments
3. Division 14, Application of the Statewide Planning Goals to Newly
Incorporated Cities, Annexation, and Urban Development on Rural Lands
* OAR 660-014-0040, Establishment of New Urban Development on
Undeveloped Rural Lands
4. Division 15, Statewide Planning Goals and Guidelines
5. Division 33, Agricultural Land
* OAR 660-033-0010, Purpose
* OAR 660-033-0020, Definitions
* OAR 660-033-0030, Identifying Agricultural Land
E. Oregon Revised Statutes, ORS Chapter 215, County Planning
1. ORS 215.010, Definitions
II. FINDINGS OF FACT:
A. Location: The subject property is located at 64970 Deschutes Pleasant Ridge Road,
Bend, and is further identified as Tax Lot 107 on Deschutes County Assessor's Map 16-
12-26C. The property is located at the southeast corner of the intersection of Highway
97 and Deschutes Pleasant Ridge Road in the area known as Deschutes Junction.
B. Zoning and Plan Designation: Tax Lot 107 has split zoning and plan designation, with
the western portion zoned Exclusive Farm Use—Tumalo, Redmond Bend Subzone
(EFU—TRB) and designated Agriculture, and the eastern portion zoned Rural Industrial
(RI) and designated Exception Area. The property also is located within a Landscape
Management Combining (LM) Zone because of its proximity to Highway 97.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 2 of 47
C. Site Description: The entire subject property — Tax Lot 107 -- is 9.05 acres in size and
roughly rectangular in shape. The property is bordered by Highway 97 on the west,
Deschutes Pleasant Ridge Road on the north, Deschutes Market Road on the south,
and the Pilot Butte Canal operated by the Central Oregon Irrigation District (COID) and
Graystone Lane on the east. The portion of the property subject to these applications
(subject site) is approximately 2.65 acres in size and is generally level with a natural
berm on the portion zoned EFU. The RI -zoned portion of the subject site previously was
used by United Pipe and Supply for the manufacture, storage, and sale of industrial
piping. The EFU-zoned portion is undeveloped and is not engaged in farm use. A
majority of the EFU-zoned portion contains rock and gravel, and scattered juniper trees,
native brush, and grasses along the property's border with Highway 97.
D. Soils: According to the most recent National Resource Conservation Service (NRCS)
Web Soil Survey data, the subject property consists of a single soil unit:
Deskamp-Gosney Complex, 38B, 0-8% Slopes. The NRCS data shows 50 percent of
this soil unit consists of Deskamp soils, 35 percent consists of Gosney soils, and 15
percent consists of contrasting inclusions. The Deskamp soils have a land capability
classification of Class III with irrigation and Class VI without irrigation. The Gosney soils
have a capability rating of Class IV with irrigation and Class VII without irrigation.
As discussed in detail in the findings below, the applicant submitted a more detailed soil
study of the subject property conducted by Roger Borine (hereafter "Borine study"). The
Borine study concluded the subject property is predominantly non-agricultural soils.
E. Surrounding Zoning and Land Uses: Land surrounding the subject property consists
of a mixture of industrial uses on land zoned RI and farm uses and rural residences on
land zoned EFU-TRB. To the east across the Pilot Butte Canal and Graystone Lane is
Willamette Graystone, a concrete products manufacturing facility. Farther to the east are
the Burlington Northern -Santa Fe (BNSF) railroad tracks. Across Deschutes Market
Road to the southeast is land zoned RI and used for pumice processing, and to the
south is undeveloped land zoned EFU-TRB and not engaged in farm use. To the north
across Deschutes Pleasant Ridge Road is land zoned EFU-TRB and developed with a
dwelling and a quasi -commercial park and gift/antique shop called the "Funny Farm."
Property to the east of the "Funny Farm" and the canal is Tax Lot 202 on Assessor's
Map 16-12-26A which is zoned EFU-TRB and has 18 irrigated acres. Across Highway
97 south of Tumalo Road is land zoned EFU-TRB currently engaged in farm use
consisting of hay production and hay sales, as well as the Three Sisters Adventist
School and scattered rural residences. Across Highway 97 north of Tumalo Road is a
building/landscaping supply business on land zoned Rural Commercial (RC).
F. Land Use History: The record indicates most of the 9.05 -acre subject property has
been zoned RI since at least 1980. The county granted conditional use and site plan
approval for United Pipe and Supply in 1980 (CU -80-145) and 1981 (SP -81-3),
respectively. The county granted a lot line adjustment in 1997 (LL -97-83, LL -97-86) that
increased the size of the property from 4.42 to 9.05 acres. The record indicates that
since 1981 the subject property has been used exclusively by United Pipe and Supply
for industrial purposes.
G. Procedural History: The applications for a plan amendment, zone change and
"reasons" goal exception were submitted on April 15 2014 and were accepted by the
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county as complete on May 15, 2014. Because the request involves a plan amendment,
under Section 22.20.040(D) the applications are not subject to the 150 -day period for
issuance of a final local land use decision under ORS 215.427. The initial public hearing
on the applications was scheduled for June 10, 2014. By a letter dated June 9, 2014, the
applicant requested that the hearing be continued in order for the applicant to address
issues raised in the staff report. At the June 10th public hearing the Hearings Officer
continued the hearing to July 29, 2014, and directed planning staff to mail notice of the
continued public hearing to all parties entitled to notice.
On July 24, 2014, the applicant submitted its Second Supplemental Burden of Proof in
support of an "irrevocably committed" exception as an alternative basis for a goal
exception. By a letter dated July 29, 2014, Larry French from DLCD advised the
Planning Division that in light of the applicant's supplemental burden of proof, in DLCD's
opinion the applicant should be required to withdraw its original application for a
"reasons" exception and the county should send a new 35 -day notice to DLCD for the
proposed "irrevocably committed" exception. The applicant submitted a memorandum
dated July 29, 2014, arguing that a new 35 -day notice to DCLD was not required, and
that a 10 -day notice to DLCD would suffice.
At the continued public hearing on July 29, 2014, Senior Planner Will Groves advised
the Hearings Officer of the notice issue raised by DLCD. The Hearings Officer agreed to
continue the hearing to a date to be determined in order to provide additional notice. The
continued hearing date subsequently was set as August 19, 2014. By a memorandum
dated August 6, 2014, Christopher Bell, Assistant Deschutes County Legal Counsel,
advised Will Groves that in his opinion a 10 -day notice to DLCD was required.
At the continued public hearing on August 19, 2014, the Hearings Officer determined the
applicant's Second Supplemental Burden of Proof did not constitute a modification of
application requiring a new application because it did not propose a new "use." The
Hearings Officer received testimony and evidence on the applicant's requested plan
amendment and zone change and on both bases for the requested goal exception, and
left the written evidentiary record open through August 26, 2014. The applicant waived
submission of final argument, and the record closed on August 26, 2014.
H. Proposal: The applicant requests approval of a plan amendment and zone change from
Agriculture and EFU-TRB to RI and Exception Area, respectively, for 2.65 acres of the
subject property. The application does not include a development proposal.
Public/Private Agency Comments: The Planning Division sent notice of the applicant's
proposal to a number of public and private agencies and received responses from: the
Deschutes County Senior Transportation Planner; the Bend Fire Department; COID;
DLCD; and the Oregon Department of Transportation (ODOT). These comments are set
forth verbatim at page 3 of the staff report and are addressed in the findings below. The
following agencies did not respond to the request for comments or responded with "no
comment:" the Deschutes County Assessor and Environmental Soils Division; the
Oregon Department of Water Resources, Watermaster-District 11; the Oregon
Department of Agriculture; and Avion Water Company.
J. Public Notice and Comments: The Planning Division mailed individual written notice of
the applicant's proposal, the initial public hearing on June 10, 2014, and the continued
public hearing on July 29, 2014 to the owners of record of all property located within 750
Powell/Ramsey, PA -14-2, ZC-14-2 Page 4 of 47
feet of the subject property. The record indicates these notices were mailed to the
owners of 20 tax Tots. In addition, notice of the initial public hearing was published in the
Bend "Bulletin" newspaper, and the subject property was posted with a notice of
proposed land use action sign. As of the date the record in this matter closed the county
had received no comments from the public. No members of the public testified at the
public hearings.
K. Lot of Record: The staff report notes that this Hearings Officer's previous decision in
Belveron (ZC-08-04) held a property's legal lot -of -record status is not relevant to an
application for a plan amendment and zone change. The Hearings Officer adheres to
that holding here. The staff report states the county recognizes the entire subject
property as a legal lot of record due to issuance of previous permits (e.g., CU -80-145,
B9781, S2979).
III. CONCLUSIONS OF LAW:
PLAN AMENDMENT AND ZONE CHANGE
County Code Standards
A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance
1. Chapter 18.136, Amendments
a. Section 18.136.010, Amendments
DCC Title 18 may be amended as set forth in DCC 18.136. The
procedures for text or legislative map changes shall be as set forth
in DCC 22.12. A request by a property owner for a quasi-judicial map
amendment shall be accomplished by filing an application on forms
provided by the Planning Department and shall be subject to
applicable procedures of DCC Title 22.
FINDINGS: The applicant requests a quasi-judicial map amendment and submitted applications
for a plan amendment, zone change and goal exception. The applications are being reviewed
under the procedures of Title 22 of the Deschutes County Code.
b. Section 18.136.020, Rezoning Standards
The applicant for a quasi-judicial rezoning must establish that the
public interest is best served by rezoning the property. Factors to
be demonstrated by the applicant are:
A. That the change conforms with the Comprehensive Plan, and
the change is consistent with the plan's introductory
statement and goals.
FINDINGS: In numerous previous decisions the Hearings Officer has found this paragraph
establishes two requirements: (1) that the zone change conforms with the plan; and (2) that it is
Powell/Ramsey, PA -14-2, ZC-14-2 Page 5 of 47
consistent with the plan's introductory statement and the plan's goals. Each of these
requirements is discussed below.
1. Conformance with Comprehensive Plan, The applicants have requested approval of a plan
amendment to redesignate the subject property from Agriculture to Rural Industrial, and
therefore the proposed rezoning from EFU-TRB to RI will be consistent with its proposed new
plan designation.
2. Consistency with the Plan's Introductory Statement and Goals. In several previous
decisions, the Hearings Officer has made the following findings concerning this requirement:
"Comprehensive plan statements, goals and policies typically are not intended to,
and do not, constitute mandatory approval criteria for quasi-judicial land use
permit applications. Save Our Skyline v. City of Bend, 48 Or LUBA 192 (2004).
There, LUBA held:
'As intervenor correctly points out, local and statutory
requirements that land use decisions be consistent with the
comprehensive plan do not mean that all parts of the
comprehensive plan necessarily are approval standards.
[Citations omitted.] Local governments and this Board have
frequently considered the text and context of cited parts of the
comprehensive plan and concluded that the alleged
comprehensive plan standard was not an applicable approval
standard. [Citations omitted.] Even if the comprehensive plan
includes provisions that can operate as approval standards, those
standards are not necessarily relevant to all quasi-judicial land use
permit applications. [Citation omitted.] Moreover, even if a plan
provision is a relevant standard that must be considered, the plan
provision might not constitute a separate mandatory approval
criterion, in the sense that it must be separately satisfied, along
with any other mandatory approval criteria, before the application
can be approved. Instead, that plan provision, even if it constitutes
a relevant standard, may represent a required consideration that
must be balanced with other relevant considerations. [Citations
omitted.]'
LUBA went on to hold in Save Our Skyline that it is appropriate to `consider first
whether the comprehensive plan itself expressly assigns a particular role to some
or all of the plan's goals and policies.' Section 23.08.020 of the county's
comprehensive plan provides as follows:
The purpose of the Comprehensive Plan for Deschutes County is not to provide
a site-specific identification of the appropriate land uses which may take place on
a particular piece of land but rather it is to consider the significant factors which
affect or are affected by development in the County and provide a general guide
to the various decisions which must be made to promote the greatest efficiency
and equity possible, while managing the continuing growth and change of the
area. Part of that process is identification of an appropriate land use plan, which
is then interpreted to make decisions about specific sites (most often in zoning
and subdivision administration) but the plan must also consider the sociological,
Powell/Ramsey, PA -14-2, ZC-14-2 Page 6 of 47
economic and environmental consequences of various actions and provide
guidelines and policies for activities which may have effects beyond physical
changes of the land. (Emphasis added.)
The Hearings Officer finds the above -underscored language strongly suggests
the county's plan statements, goals and policies are not intended to establish
approval standards for quasi-judicial land use permit applications.
In Bothman v. City of Eugene, 51 Or LUBA 426 (2006), LUBA found it
appropriate also to review the language of specific plan policies to determine
whether and to what extent they may in fact establish decisional standards. The
policies at issue in that case included those ranging from aspirational statements
to planning directives to the city to policies with language providing `guidance for
decision-making' with respect to specific rezoning proposals. In Bothman LUBA
concluded the planning commission erred in not considering in a zone change
proceeding a plan policy requiring the city to `(r]ecognize the existing general
office and commercial uses located * * * [in the geographic area including the
subject property] and discourage future rezonings of these properties.' LUBA
held that:
* * even where a plan provision might not constitute an
independently applicable mandatory approval criterion, it may
nonetheless represent a relevant and necessary consideration
that must be reviewed and balanced with other relevant
considerations, pursuant to ordinance provisions that require * * *
consistency with applicable plan provisions.'(Emphasis added.)
The county's comprehensive plan includes a large number of goals and policies.
The applicant's burden of proof addresses goals for rural development, economy,
transportation, public facilities, recreation, energy, natural hazards, destination
resorts, open spaces, fish and wildlife, and forest lands. The Hearings Officer
finds these goals are aspirational in nature and therefore are not intended to
create decision standards for the proposed zone change."
The Hearings Officer adheres to these findings here, and again finds the above -referenced
introductory statements and goals are not approval criteria for the proposed plan amendment
and zone change. Nevertheless, depending upon their language, some plan provisions may
require "consideration" even if they are not applicable approval criteria. Save Our Skyline v. City
of Bend, 48 Or LUBA 192, 209 (2004). Staff and the applicant have identified the following plan
goals and policies as potentially requiring such consideration.
Chapter 2, Resource Management
Section 2.2, Agricultural Lands Policies
Goal 1, Preserve and maintain agricultural lands and the agricultural
industry.
FINDINGS: The Hearings Officer finds this is an aspirational goal and not an approval criterion.
Nevertheless, as discussed in detail in the findings below, I have found the subject property
Powell/Ramsey, PA -14-2, ZC-14-2 Page 7 of 47
does not constitute agricultural land that must be preserved based on the applicant's site-
specific soil study showing the property is comprised predominantly non-agricultural soils.
Policy 2.2.2, Exclusive Farm Use sub -zones shall remain as described in
the 1992 Farm Study shown in the table below, unless adequate legal
findings for amending the sub -zones are adopted or an individual parcel is
rezoned as allowed by Policy 2.2.3.
FINDINGS: The Hearings Officer finds this policy is directed at the county rather than at an
individual application. In any case, the applicant is not requesting an amendment to the subzone
(EFU-TRB) that applies to the subject property.
Policy 2.2.3, Allow comprehensive plan and zoning map amendments for
individual EFU parcels as allowed by State Statute, Oregon Administrative
Rules and this Comprehensive Plan.
FINDINGS: The Hearings Officer finds this policy also is directed at the county rather than an
individual applicant. Nevertheless, the applicant has requested a quasi-judicial plan amendment
and zone change to remove the EFU designation and zoning from the subject property and has
not requested an exception to Goal 3. As discussed in detail in the findings below, I have found
the applicant's proposal is authorized by policies in the comprehensive plan and is permitted
under state law.
Policy 2.2.13, Identify and retain accurately designated agricultural lands.
FINDINGS: The Hearings Officer finds this policy also is directed at the county. As discussed in
detail in the findings below, I have found the subject property does not constitute agricultural
land.
Policy 2.2.4, Develop comprehensive policy criteria and code to provide
clarity on when and how EFU parcels can be converted to other
designations.
FINDINGS: The Hearings Officer finds this policy also is directed at the county rather than at an
individual application. In any event, in my decision in NNP (PA -13-1, ZC-13-1) I held any failure
on the county's part to adopt comprehensive plan policies and code provisions describing the
circumstances under which EFU-zoned land may be converted to a non -resource designation
and zoning does not preclude the county from considering quasi-judicial plan amendment and
zone change applications to remove EFU zoning. I adhere to that holding here.
Section 2.5, Water Resource Policies
2.5.24, Ensure water impacts are reviewed and, if necessary, addressed for
significant land uses or developments.
FINDINGS: Again, the Hearings Officer finds this policy is directed at the county. Nevertheless,
in my decision in NNP I held it is not clear from this plan language what "water impacts" require
review -- impacts to water supplies from use or consumption on the subject property, or impacts
to off-site water resources from development on the subject property. As a result, I addressed
both issues in that decision, and I do so here as well. The applicant has not proposed any
particular land use or development, and any subsequent applications for development of the
Powell/Ramsey, PA -14-2, ZC-14-2 Page 8 of 47
subject property would be reviewed under the county's land use regulations which include
consideration of a variety of on- and off-site impacts.
The applicant's requested zone change to RI would allow a variety of land uses on the subject
property. As discussed in the Findings of Fact above, much of the land surrounding the subject
property is zoned RI and developed with industrial uses. Consequently, I find it is likely similar
development would occur on the subject property if it were re -designated and rezoned to RI.
Moreover, in light of existing uses in the surrounding area, and the fact that Avion Water
Company provides water service in the Deschutes Junction area, I find future development of
the subject property with uses permitted in the RI Zone will have water service.
Finally, the record indicates the subject property has no irrigation water rights and therefore the
proposed plan amendment and zone change will not result in the loss or transfer of water rights.
In its comments on the applicant's proposal, COID stated it does not foresee any issues with the
change of use on the subject site because it does not have, and has not for many years had,
water rights and the property has been used in a nonfarm commercial manner for a number of
years. COID stated its open and piped facilities must remain whole with any future development.
3.4, Rural Economy
Goal 1, Maintain a stable and sustainable rural economy, compatible with rural
lifestyles and a healthy environment.
Policy 3.4.23, To assure that urban uses are not permitted on rural
industrial lands, land use regulations in the Rural Industrial zones shall
ensure that the uses allowed are less intensive than those allowed for
unincorporated communities in OAR 660-22 or any successors.
Policy 3.4.27, Land use regulations shall ensure that new uses authorized
within the Rural Industrial sites do not adversely affect agricultural and
forest uses in the surrounding area. (Emphasis added.)
FINDINGS: The Hearings Officer finds the above -underscored language indicates these policies
are directed at the county and not at individual applications. In any case, the applicant's
proposal does not change the land use regulations in the RI Zone.
Policy 3.4.28, New industrial uses shall be limited in size to a maximum
floor area of 7,500 square feet per use within a building, except for the
primary processing of raw materials produced in rural areas, for which
there is no floor area per use limitation.
Policy 3.4.31, Residential and industrial uses shall be served by DEQ
approved on-site sewage disposal systems.
Policy 3.4.32, Residential and industrial uses shall be served by on-site
wells or public water systems.
FINDINGS: The Hearings Officer finds the language of these policies suggests they were
intended to apply to quasi-judicial applications. The staff report notes these policies are codified
in Chapter 18.100 governing the RI Zone and are implemented through those provisions. The
applicant's proposal does not change the land use regulations in the RI Zone.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 9 of 47
Section 3.7, Transportation System Plan
Executive Summary
Arterial and Collector Road Plan
Goal 4
4. Establish a transportation system, supportive of a geographically
distributed and diversified economic base, while also providing a
safe, efficient network for residential mobility and tourism.
Policies
4.1 Deschutes County shall:
a. Consider the road network to be the most important and
valuable component of the transportation system.
4.3 Deschutes County shall make transportation decisions with
consideration of land use impacts, including put not limited to,
adjacent land use patterns, both existing and planned, and their
designated uses and densities.
4.4 Deschutes County shall consider roadway function, classification
and capacity as criteria for plan map amendments and zone
changes. This shall assure that proposed land uses do not exceed
the planned capacity of the transportation system. (Emphasis added.)
FINDINGS: The Hearings Officer finds the above -underscored language indicates these plan
policies provide direction to the county but do not create approval criteria for a quasi-judicial
plan amendment and zone change. In any case, the applicant submitted two transportation
impact analyses (hereafter "traffic studies"). The original traffic study, dated December 6, 2012
and prepared by Group Mackenzie, is included in the record as Exhibit 5 to the applicant's
burden of proof. The supplemental traffic study, dated July 29, 2014 and prepared by Clemow &
Associates, is included in the record as Exhibit 8 to the applicant's burden of proof. As
discussed in detail in the findings below concerning compliance with the Transportation
Planning Rule (TPR), both traffic studies conclude that traffic generated by development of the
subject property with RI -zone uses in the reasonable "worst-case" scenario will not significantly
affect a transportation facility and therefore will comply with the TPR.
Section 3.10, Area Specific Policies
Deschutes Junction
Policy 3.10.11, Maximize protection of the rural character of neighborhoods
in the Deschutes Junction area while recognizing the intended
development of properties designated for commercial, industrial and
agricultural uses. (Emphasis added.)
Powell/Ramsey, PA -14-2, ZC-14-2 Page 10 of 47
FINDINGS: The Hearings Officer finds the above -underscored language indicates this policy is
directed at the county and not intended to be an approval criterion for quasi-judicial plan
amendment and zone change applications for land in the Deschutes Junction area. In any case,
I agree with staff's observation that because the subject property is shielded from existing
residential uses in the Deschutes Junction area by existing industrial development, roads, and
the natural berm along 97, additional industrial development on the subject property would not
negatively impact the rural character of the area.
Policy 3.10.12, Review cumulative impacts of future development and
future traffic improvements in the Deschutes Junction area in a manner
consistent with Deschutes County traffic study requirements at 17.16.115,
the Oregon Highway Plan, access management standards of OAR Chapter
734, Division 51, and OAR Chapter 660, Division 12, the Transportation
Planning Rule (TPR). (Emphasis added.)
Policy 3.10.13, Support safe and efficient travel around Deschutes
Junction, including a frontage road extending north from Tumalo Road on
the west side of Highway 97. (Emphasis added.)
FINDINGS: The Hearings Officer finds the above -underscored language in these policies
indicates they are directed at the county rather than establishing approval criteria for quasi-
judicial plan amendment and zone change applications. In any case, as discussed in detail in
the findings below, based on the applicant's submitted traffic studies and comments from ODOT
and the county's Senior Transportation Planner, 1 have found the applicant's proposed plan
amendment and zone change from EFU to RI complies with the TPR.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal is consistent with
all applicable comprehensive plan policies.
B. That the change in classification for the subject property is
consistent with the purpose and intent of the proposed zone
classification.
FINDINGS: Section 18.100.010 states the purpose of the RI Zone is:
* * * to encourage employment opportunities in rural areas and to promote the
appropriate economic development of rural service centers which are rapidly
becoming urbanized and soon to be full-service incorporated cities, while
protecting the existing rural character of the area as well as preserving or
enhancing the air, water and land resources of the area.
The Hearings Officer finds the applicant's proposed plan amendment and zone change from
EFU to RI would create employment opportunities in rural areas in general and in the Deschutes
Junction area in particular. The staff report raises concerns about potential impacts to the rural
character of the area, and potential impacts to the air, water and land resources of the area,
from potential industrial uses on the subject property. However, I find the provisions of the RI
Zone, as well as the conditional use and/or site plan approval criteria that apply to development
in the RI Zone, are designed to minimize adverse impacts on air and water quality and other
land resources in the area.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 11 of 47
C. That changing the zoning will presently serve the public
health, safety and welfare considering the following factors:
1. The availability and efficiency of providing necessary
public services and facilities.
FINDINGS: The Hearings Officer finds necessary public facilities and services are available to
serve future industrial development on the subject property. The property receives fire
protection from the Deschutes County Rural Fire District No. 1 through the City of Bend Fire
Department. In its comments on the applicant's proposal, the fire department stated it supports
the applicant's proposal. The property receives police protection from the Deschutes County
Sheriff. The record indicates Pacific Power provides electrical service and Avion Water
Company provides water service to the Deschutes Junction area. The record also indicates the
existing RI portion of the property has a septic system for sewage treatment. Finally, as
discussed in the findings below, I have found from the applicant's traffic studies and comments
from ODOT and the county's Senior Transportation Planner that the applicant's proposal
satisfies the TPR. Therefore, I find the applicant's proposal satisfies this criterion.
2. The impacts on surrounding land use will be
consistent with the specific goals and policies
contained within the Comprehensive Plan.
FINDINGS: The proposal's compliance with the relevant comprehensive plan goals and policies
is addressed in the findings above. The Hearings Officer has found the applicant's proposal is
consistent with all applicable goals and policies.
D. That there has been a change in circumstances since the
property was last zoned, or a mistake was made in the zoning
of the property in question.
FINDINGS:
1. Mistake. The Hearings Officer finds the original EFU zoning of the subject property was not a
mistake. Rather, I find the property's EFU designation and zoning were appropriate in light of
the soil data available to the county in the late 1970's when the comprehensive plan and map
were adopted.
2. Change in Circumstances. The applicant's burden of proof identifies three changes in
circumstances justifying the proposed plan amendment and zone change from EFU to RI:
a. new soils data in the applicant's submitted soil study showing the property does not have
agricultural soils;
b. the increase in traffic in the vicinity of the subject property as a result of construction of the
Highway 97 overpass at Deschutes Market/Tumalo Road, making farm use more difficult on
some properties; and
c. a reduction in the supply of undeveloped RI -zoned land in the county.
The Hearings Officer agrees with the applicant that the new site-specific soils data for the
subject property is a change of circumstances justifying the proposed plan amendment and
Powell/Ramsey, PA -14-2, ZC-14-2 Page 12 of 47
zone change from EFU to RI. The soil study, discussed in detail in the findings below, shows the
subject property is comprised predominantly of Class VII and Class VIII — non-agricultural —
soils that are unsuitable for farm use.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal satisfies the
applicable provisions of the comprehensive plan.
Statewide Land Use Planning Goals
B. Oregon Administrative Rules, Chapter 660, Land Conservation and Development
Commission
1. Division 15, Statewide Planning Goals and Guidelines
FINDINGS:
Goal 1, Citizen Involvement. The Planning Division provided notice of the proposed plan
amendment and zone change to the public through individual mailed notices to nearby property
owners, publication of notice in the Bend "Bulletin" newspaper, and posting of the subject
property with a notice of proposed land use action sign. In addition, three public hearings were
held before the Hearings Officer on the proposal, and a public hearing on the proposal will be
held by the Deschutes County Board of Commissioners ("board").
Goal 2, Land Use Planning. Goals, policies and processes related to plan amendment and
zone change applications are included in the county's comprehensive plan and land use
regulations in Titles 18 and 22 of the Deschutes County Code and have been applied to the
review of these applications.
Goal 3, Agricultural Lands. Goal 3 is "[t)o preserve and maintain agricultural lands." The
Hearings Officer has found the applicant's submitted soil study demonstrates the subject
property does not constitute "agricultural land" because it is comprised predominantly of Class
VII and VIII soils that are not suitable for farm use. Therefore, I find the applicant's proposal is
consistent with Goal 3.
Goal 4, Forest Lands. The Hearings Officer finds this goal is not applicable because the
subject property does not include any lands that are zoned for, or that support, forest uses.
Goal 5, Open Spaces, Scenic and Historic Areas and Natural Resources. The Hearings
Officer finds this goal is not applicable because the record indicates there are no identified Goal
5 resources on the subject property.
Goal 6, Air, Water and Land Resources Quality. The Hearings Officer finds the applicant's
proposal to rezone the property from EFU-TRB to RI, in and of itself, will not impact the quality
of the air, water, and land resources of the county. Any future RI Zone development of the
property would be subject to local, state, and federal regulations protecting these resources.
Goal 7, Areas Subject to Natural Disasters and Hazards. The Hearings Officer finds this goal
is not applicable because the subject property is not located in a known natural disaster or
hazard area.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 13 of 47
Goal 8, Recreational Needs. The Hearings Officer finds this goal is not applicable because the
proposed plan amendment and zone change do not affect recreational needs, and no specific
development of the property is proposed.
Goal 9, Economy of the State. This goal is to provide adequate opportunities throughout the
state for a variety of economic activities. The Hearings Officer finds the proposed plan
amendment and zone change is consistent with this goal because it will provide opportunities
for economic development in the county in general, and in the Deschutes Junction area in
particular, by allowing the currently undeveloped and unused property to be put to a more
productive use.
Goal 10, Housing. The Hearings Officer finds this goal is not applicable because the proposed
plan amendment and zone change will not affect existing or needed housing.
Goal 11, Public Facilities and Services. This goal requires planning for public services,
including public services in rural areas, and generally has been held to prohibit extension of
urban services such as sewer and water to rural lands outside urban growth boundaries. The
Hearings Officer finds this goal is not applicable to the applicant's proposal because it will not
result in the extension of urban services to rural areas. And as discussed in the findings above,
public facilities and services necessary for development of the subject property in accordance
with the RI Zone are available and will be adequate.
Goal 12, Transportation. As discussed in the detail in the findings below concerning
compliance with the TPR, incorporated by reference herein, the Hearings Officer has found the
applicant's proposal will not significantly affect a transportation facility and therefore it complies
with the TPR. Accordingly, I find it also is consistent with Goal 12.
Goal 13, Energy Conservation. The Hearings Officer finds the applicant's proposed plan
amendment and zone change, in and of themselves, will have no effect on energy use or
conservation since no specific development has been proposed in conjunction with the subject
applications. In any case, I find that providing additional economic opportunities on the subject
property may decrease vehicle trips for persons working in the Deschutes Junction area,
therefore conserving energy.
Goal 14, Urbanization. Goal 14 is "[t]o provide for an orderly and efficient transition from rural
to urban land use." The Hearings Officer finds the proposed plan amendment and zone change
could result in the "urbanization" of the subject site by allowing development with RI Zone uses
that are more "urban" in nature including both retail and service uses. For this reason, I have
found an exception to Goal 14 is required for the proposed plan amendment and zone change.
As discussed in detail in the findings below, I have found the applicant has demonstrated its
proposal qualifies for an "irrevocably committed" exception to Goal 14.
Goals 15 through 19. The Hearings Officer finds these goals, which address river, ocean, and
estuarine resources, are not applicable because the subject property is not located in or
adjacent to any such areas or resources.
For the foregoing reasons, the Hearings Officer finds the applicant's proposal is, or with an
exception to Goal 14 will be, consistent with the statewide planning goals.
Transportation Planning Rule
Powell/Ramsey, PA -14-2, ZC-14-2 Page 14 of 47
2. Division 12, Transportation Planning Rule
a. OAR 660-012-0060, Plan and Land Use Regulation Amendments.
(1)
If an amendment to a functional plan, an acknowledged
comprehensive plan, or a land use regulation (including a
zoning map) would significantly affect an existing or planned
transportation facility, then the local government must put in
place measures as provided in section (2) of this rule, unless
the amendment is allowed under section (3), (9) or (10) of this
rule. A plan or land use regulation amendment significantly
affects a transportation facility if it would:
(a) Change the functional classification of an existing or
planned transportation facility (exclusive of correction
of map errors in an adopted plan;
(b) Change standards implementing a functional
classification system; or
(c) Result in any of the effects listed in paragraphs (A)
through (C) of this subsection based on projected
conditions measured at the end of the planning period
identified in the adopted TSP. As part of evaluating
projected conditions, the amount of traffic projected to
be generated within the area of the amendment may be
reduced if the amendment includes an enforceable,
ongoing requirement that would demonstrably limit
traffic generation, including, but not limited to,
transportation demand management. This reduction
may diminish or completely eliminate the significant
effect of the amendment.
(A) Types or levels of travel or access that are
inconsistent with the functional classification of
an existing or planned transportation facility;
(B) Degrade the performance of an existing or
planned transportation facility such that it
would not meet the performance standards
identified in the TSP or comprehensive plan; or
(C) Degrade the performance of an existing or
planned transportation facility that is otherwise
projected to not meet the performance
standards identified in the TSP or
comprehensive plan.
(2) If a local government determines that there would be a
significant effect, then the local government must ensure that
allowed land uses are consistent with the identified function,
Powell/Ramsey, PA -14-2, ZC-14-2 Page 15 of 47
capacity, and performance standards of the facility measured
at the end of the planning period identified in the adopted
TSP through one or a combination of the remedies listed in
(a) through (e) below, unless the amendment meets the
balancing test in subsection (2)(e) of this section or qualifies
for partial mitigation in section (11) of this rule. A local
government using subsection (2)(e), section (3), section (10)
or section (11) to approve an amendment recognizes that
additional motor vehicle traffic congestion may result and
that other facility providers would not be expected to provide
additional capacity for motor vehicles in response to this
congestion.
(a) Adopting measures that demonstrate allowed land
uses are consistent with the planned function,
capacity, and performance standards of the
transportation facility.
(b) Amending the TSP or comprehensive plan to provide
transportation facilities, improvements or services
adequate to support the proposed land uses
consistent with the requirements of this division; such
amendments shall include a funding plan or
mechanism consistent with section (4) or include an
amendment to the transportation finance plan so that
the facility, improvement, or service will be provided
by the end of the planning period.
(c) Amending the TSP to modify the planned function,
capacity or performance standards of the
transportation facility.
(d) Providing other measures as a condition of
development or through a development agreement or
similar funding method, including, but not limited to,
transportation system management measures or
minor transportation improvements. Local
governments shall, as part of the amendment, specify
when measures or improvements provided pursuant to
this subsection will be provided.
(e) Providing improvements that would benefit modes
other than the significantly affected mode,
improvements to facilities other than the significantly
affected facility, or improvements at other locations, if
the provider of the significantly affected facility
provides a written statement that the system -wide
benefits are sufficient to balance the significant effect,
even though the improvements would not result in
consistency for all performance standards.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 16 of 47
(3)
Notwithstanding sections (1) and (2) of this rule, a local
government may approve an amendment that would
significantly affect an existing transportation facility without
assuring that the allowed land uses are consistent with the
function, capacity and performance standards of the facility
where:
(a) In the absence of the amendment, planned
transportation facilities, improvements and services as
set forth in section (4) of this rule would not be
adequate to achieve consistency with the identified
function, capacity or performance standard for that
facility by the end of the planning period identified in
the adopted TSP;
(b) Development resulting from the amendment will, at a
minimum, mitigate the impacts of the amendment in a
manner that avoids further degradation to the
performance of the facility by the time of the
development through one or a combination of
transportation improvements or measures;
(c) The amendment does not involve property located in
an interchange area as defined in paragraph (4)(d)(C);
and
(d) For affected state highways, ODOT provides a written
statement that the proposed funding and timing for the
identified mitigation improvements or measures are, at
a minimum, sufficient to avoid further degradation to
the performance of the affected state highway.
However, if a local government provides the
appropriate ODOT regional office with written notice of
a proposed amendment in a manner that provides
ODOT reasonable opportunity to submit a written
statement into the record of the local government
proceeding, and ODOT does not provide a written
statement, then the local government may proceed with
applying subsections (a) through (c) of this section.
FINDINGS: The Hearings Officer finds the TPR is applicable to the applicant's proposal
because it requests an amendment to an acknowledged plan. As discussed in the findings
above, the applicant submitted an original traffic study dated December 2012 ("2012 traffic
study") and a supplemental traffic study dated July 29, 2014 ("2014 traffic study"). Each of these
traffic studies is addressed in the findings below.
2012 Traffic Study. The traffic study noted the four intersections located near the subject
property currently operate at acceptable levels of service. The study predicted RI Zone
development on the subject site would generate an additional 24 p.m. peak hour vehicle trips
(4:00 p.m. to 6:00 p.m. weekdays), based on the assumption that development of the site with
15,000 square feet of light industrial space and uses would represent the "worst case"
Powell/Ramsey, PA -14-2, ZC-14-2 Page 17 of 47
development scenario. The traffic study predicted that with the addition of this traffic the four
nearby affected intersections would continue to operate at acceptable levels of service and
therefore no improvements to those intersections would be required, and the applicant's
proposal would not "significantly affect" a transportation facility.
In his comments on the 2012 traffic study, Senior Transportation Planner Peter Russell stated in
relevant part:
"The applicant has submitted a traffic study to address the Transportation
Planning Rule (TPR) 660-012-0060, but has not used the highest trip generator
in the analysis that would be allowed under the proposed RI zone. There are two
possible solutions. One, would be to redo the traffic analysis based on the actual
worst case use allowed for RI under Deschutes County Code (DCC) 18.100.010.
Two, would be for the applicant to propose a trip cap that would restrict any
future land use to the amount of traffic assumed under the traffic study, which is
three p.m. peak hour trips.
The traffic study used the most recent edition of the Institute of Traffic Engineers
(ITE) Trip Generation Handbook and based the traffic study on General Light
Industrial (LU 110), which makes complete sense. General Light Industrial has a
p.m. peak hour trip rate of 0.97 trips per 1,000 square feet. However, there are
uses with higher trip rates in the ITE that are allowed outright under the RI zone.
DCC 18.100.010(E) would allow Building and Materials Lumber Store (LU 812)
with 4.49 p.m. peak hour trips and Tractor Supply Store (LU 810) at 1.40 peak
hour trips per 1,000 square feet. DCC 18.100.010(L) allows Animal/Hospital
Veterinary Clinic (LU 640) with 4.72 p.m. peak hour trips per 1,000 square feet.
Additionally, the traffic study assumes two new buildings of 7,500 square feet to
accompany the existing 10,000 -square -foot United Pipe building which exists, but
is vacant. DCC 18.100.040(H)(1) sets a maximum size of 7,500 square feet for a
new building that is not used for primary processing of raw materials and a
building that was lawfully established on or before Feb. 25, 2003, may be
expanded to 10,000 square feet. The 2.65 -acre lot equates to 115,434 square
feet of which approximately 106,000 square feet is developable, yet the traffic
study only assumes 15,000 square feet of new development. In talking with Will
Groves, after subtracting for landscaping, parking, yard setbacks, etc., the site
could accommodate five (5) new buildings of 7,500 square feet each. Thus the
traffic study should be revised to address 1) the potential greater number of trips
given the outright permitted uses of 18.100.010 and 2) the number of potential
buildings in the traffic analysis needs to be increased as well."
In his May 28, 2014 comments on the applicant's proposal, James Bryant of ODOT stated in
relevant part:
"I have spoken with Chris Clemow, the applicant's traffic engineer, regarding the
traffic study for PA-14-2/ZC-14-2 and what uses and sizes are allowed in the
sought-after Rural Industrial (RI) zone. Based on our conversations, the outright
permitted uses, the setback requirements, and what the market would
reasonably be expected to bear, we arrived at the following land use
assumptions to be analyzed with a planning horizon of 20 years. There will be
five buildings of 7,500 square feet each; three of the buildings will be General
Powell/Ramsey, PA -14-2, ZC-14-2 Page 18 of 47
Light Industrial, one will be building materials supply store, and one will be a
veterinary clinic. This is a reasonable worst-case assumption."
The road department did not comment on the applicant's proposal.
2014 Traffic Study. In response to Mr. Russell's and ODOT's comments, the applicant
submitted the supplemental traffic study using higher trip generating uses — 7,500 square feet of
veterinary clinic space and 7,500 square feet of lumber store — as well as 7,500 square feet of
Tight industrial, to predict traffic impacts from RI zoning of the subject site. The study predicts
that these uses developed on the subject site would generate 86 new p.m. peak hour trips. The
2014 study concluded that with this higher level of additional traffic, the four affected
intersections would continue to function at acceptable levels of service through the 20 -year
planning period for the required analysis.
In his July 29, 2014 comments on the 2014 traffic study, Peter Russell stated in relevant part:
"I have reviewed the updated traffic analysis, which was prepared consistent with
County staff direction regarding the type, number, and size of potential land uses
on the site based on the proposed zoning. I agree with the study's methodology
and conclusions that the proposed rezone will not result in any significant effects
to the affected intersections."
Based on the applicant's 2014 traffic study and the comments from ODOT and Peter Russell,
and the lack of any concern expressed by the road department, the Hearings Officer finds the
applicant's proposed plan amendment and zone change will not significantly affect a
transportation facility. However, in order to assure continuing compliance with the TPR, I find
that as a condition of approval, the applicant will be required to limit RI Zone development on
the subject site to a total of three 7,500 -square -foot buildings and to limit traffic impacts from the
development to 86 p.m. peak hour vehicle trips.
(4) Determinations under sections (1)-(3) of this rule shall be
coordinated with affected transportation facility and service
providers and other affected local governments.
FINDINGS: As discussed in the Findings of Fact above, the Planning Division sent written
notice of the applicant's proposal to a number of public and private agencies, including the City
of Bend Fire Department, the county road department and ODOT. The staff report states, and
the Hearings Officer agrees, this notice provided adequate opportunity for coordination with
affected transportation and service providers and local governments.
For the foregoing reasons, the Hearings Officer finds the proposal complies with the TPR.
Agricultural Land
3. Division 33, Agricultural Land
FINDINGS: The applicant requests approval of a plan amendment and zone change for the
subject property. At the outset, the applicant argues the subject property does not constitute
"agricultural land" requiring protection under Goal 3 and therefore no exception to that goal is
required. The standards and procedures for identifying and inventorying agricultural land are
found in OAR Chapter 660, Division 33, discussed in the findings below.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 19 of 47
a. OAR 660-033-0010, Purpose
The purpose of this division is to preserve and maintain agricultural
lands as defined by Goal 3 for farm use, and to implement ORS
215.203 through 215.327 and 215.438 through 215.459 and 215.700
through 215.799.
FINDINGS: Goal 3 defines "agricultural land" in relevant part as follows:
Agricultural Land — * * * in eastern Oregon is land of predominantly Class I, 11, III,
IV, V and VI soils as identified in the Soil Capability Classification System of the
United States Soil Conservation Service, and other lands which are suitable for
farm use taking into consideration soil fertility, suitability for grazing, climatic
conditions, existing and future availability for farm irrigation purposes, existing
land -use patterns, technological and energy inputs required, or accepted farming
practices. Lands in other classes which are necessary to permit farm practices to
be undertaken on adjacent or nearby lands, shall be included as agricultural land
in any event.
More detailed soil data to define agricultural land may be utilized by local
governments if such data permits achievement of this goal. (Emphasis added.)
b. OAR 660-033-0020, Definitions
For purposes of this division, the definitions in ORS 197.015, the
Statewide Planning Goals, and OAR chapter 660 shall apply. In
addition, the following definitions shall apply:
FINDINGS: This rule defines "agricultural land" by essentially the same terminology used in the
language of Goal 3, and describes it as consisting of:
• land that is predominantly Class I -VI soils (in Eastern Oregon) without a goal exception;
• land that is predominantly Class VII and VIII soils and that is "suitable for farm use"
considering the factors set forth in OAR 660-033-0020(1)(a)(B) of this rule;
• land that is necessary to permit farm practices on adjacent or nearby agricultural lands;
and
• Class VII and VIII land that is adjacent to or intermingled with Class I -VI land within a
farm unit.
The applicant argues the subject property does not constitute "agricultural land" under any of
these categories, each of which is discussed in the findings below.
Predominantly Class I -VI Soils
(1) (a)" Agricultural Land" as defined in Goal 3 includes:
(A) Lands classified by the U.S. Natural Resources
Conservation Service (NRCS) as predominantly Class
Powell/Ramsey, PA -14-2, ZC-14-2 Page 20 of 47
I-IV soils in Western Oregon and I -VI soils in Eastern
Oregon;
FINDINGS:
Appropriate Unit of Land. In the Hearings Officer's decision in NNP (PA -13-1, ZC-13-1), I held
the "predominant soils" prong of the agricultural land definition cannot be applied until an
appropriate unit of land is selected to determine whether Class 1 -VI soils are predominant within
that unit of land based on the decision of the Land Use Board of Appeals (LUBA) in Wetherell v.
Douglas County, 50 Or LUBA 71 (2005). I find the entire 9.05 -acre subject property is the
appropriate unit of land because it is a single tax lot under single ownership and is physically
separated from the nearest EFU-zoned parcels by industrial uses, roads, and the COID canal.
Predominant Soils. The NRCS soils maps for the subject property show it is composed of a
single soil unit: Deskamp-Gosney Complex, 38B, 0-8% Slopes. The Deskamp soils are
designated Class III when irrigated and Class VI without irrigation. The Gosney soils are
designated Class IV when irrigated and Class VII without irrigation. Therefore, the NRCS data
shows the subject property is predominantly Class I -VI soils with or without irrigation and
therefore "agricultural land."
As noted in the Findings of Fact above, the applicant submitted a site-specific "Agricultural Soils
Capability Assessment" of the subject property — the Borine study. This study is dated
September 25, 2013, was prepared by Roger Borine of Sage West, LLC, and is included in the
record as Exhibit 3 to the applicant's original burden of proof. The record indicates that in April
of 2013 Mr. Borine submitted the soil study to DLCD for certification pursuant to OAR 660-033-
0030(5). By an electronic mail message dated March 7, 2014 from Katherine Daniels of DLCD
to Deschutes County Community Development Director Nick Lelack, DLCD certified the study.
Mr. Borine's submission and the certification document are included in the record as part of
Exhibit 3 to the applicant's original burden of proof. DLCD's certification states in relevant part:
"The department has reviewed the attached soils assessment prepared by a
professional soil classifier under OAR 660-033-0030 and 0045, as well as the
submittal, release and report requirement forms. A completeness check indicates
that the soils assessment is consistent with reporting requirements. The county
may make its own determination as to the accuracy and acceptability of the soils
assessment. As a side note, this property could alternatively be considered for a
commitment exception under OAR Division 4."
The Borine study identified the same soil unit on the subject property as is identified on the
NRCS maps. However, Mr. Borine conducted an on-site investigation to provide a more detailed
soil analysis and mapping. His methodology is described at page four of the soil study in
relevant part as follows:
"An Order 1 soil survey is prudent to accurately define soils, mapping units, and
miscellaneous areas and accurately locate their boundaries. Methods to
investigate the soil included the use of shovel and auger. Point observations
were used to identify soil characteristics, map unit composition and accurately
located soil boundaries.
* * *
Powell/Ramsey, PA -14-2, ZC-14-2 Page 21 of 47
The initial inventory and study identified Miscellaneous Areas, and the Gosney
series. Extremely stony areas and a very shallow soil was described and
identified as potential major components at an Order 1 level. For clarity the very
shallow contrasting soil will be referenced as Zeta soil for this study only and is a
non -correlated soil series name. The miscellaneous areas of Urban Land,
Irrigation canal/dikes and roads, and Mined land were also identified as potential
major components at an Order 1 level.
* * *
In this study area the soil depth, available water capacity (AWC), surface
stoniness and developed/disturbed areas were the primary criteria for designing
soil mapping units. Where roots are excluded by bedrock this is considered the
effective soil depth for plant growth. AWC is the volume of water that should be
available to plants in a soil holding water at full potential. Surface stones restrict
cultivation and plant growth. The Oregon LCC [land capability class] Guide rates
soils less than 10 inches deep, soils having an AWC less than 2 inches, and soils
with extremely stony surfaces as LCC 7. Rock outcrop, developed and highly
disturbed areas are considered non -soil and are LCC 8."
Table 2 of the soil study, set forth below, shows that of the 9.05 acres comprising the subject
property only 2.17 acres (23.9%) consist of Soil Unit 38B and Zeta soils and the remaining
76.1% of the subject property consists of urban land (already developed with industrial uses),
the irrigation canal, and mined land. As seen in Table 2, Mr. Borine concluded all soils on the
subject property are Class VII or VIII soils and therefore predominantly non-agricultural soils.
A'
Urban Land None
Irrigation
Canal/Dike/R
oad
Gosney-Zeta
complex, 3-
15% slopes
Zeta-
Gosney-
Rock outcrop
complex, 0-
3% slopes
Mined Land
None
100
8
1.52 16.8
0.72
8.0
2.05 22.7 3.57
0.72
39.5
8.0
Totals
Gosney
Zeta
Zeta
Gosney
Rock
outcrop
65
25
50
30
15
7
7
1.46
16.1
1.46
16.1
7
7
8
0.60
6.6
0.11
1.2
0.71
7.8
Infertile soil
substratum
100
7
0.68
7.5
1.91
21.1
2.59
28.6
4.98
55.0
4.07
45.0
9.05
100
Table 3 below depicts the types of soils identified within the EFU and RI zoning designations on
the subject property:
Powell/Ramsey, PA -14-2, ZC-14-2
Page 22 of 47
Urban Land
None
100
8
1.52
30.5
2.05
50.4
Irrigation Canal/Dike/Road
Gosney-Zeta complex, 3-15%
slopes
Zeta-Gosney-Rock outcrop
complex, 0-3% slopes
Mined Land
None
Gosney
Zeta
Zeta
100
65
25
50
8
7
7
7
72
0.60
Gosney
30
7
Rock
outcrop
Infertile soil
substratum
15
100
8
7
14.5
29.3
12.0
13.7
0.11.
2.7
46.9
4.98
100
4.07 100
Based on the Borine study, the Hearings Officer finds the soils on the subject property do not
meet the definition of "agricultural land." However, the administrative rule provides that such
soils nevertheless may be considered "agricultural land" under certain circumstances,
addressed in the findings below.
(B) Land in other soil classes that is suitable for farm use
as defined in ORS 215.203(2)(a), taking into
consideration soil fertility; suitability for grazing;
climatic conditions; existing and future availability of
water for farm irrigation purposes; existing land use
patterns; technological and energy inputs required;
and accepted farming practices; and
FINDINGS: Because the applicant's soil study shows the subject property is predominantly
Class VII and VIII soils, the next question under this administrative rule is whether the Class VII
and VIII soils on the subject property nevertheless constitute "agricultural land" based on the
seven factors listed in this paragraph.
Soil Fertility. The Borine study states the following with respect to soil fertility:
"The EFU portion of tax lot 107 is approximately 4.98 acres with 2.06 acres or
41% in natural conditions. This area is not irrigated and does not have water
rights. The soils are very shallow and shallow with extremely stony surface
layers. These soils are unsuitable for cultivation due to limited and inconsistent
soil depth and surface stoniness throughout.
The Hearings Officer is aware that DLCD's administrative rules define Class VII and VIII soils as
having very severe limitations that make them unsuited for cultivation.
Suitability for Grazing and Climatic Conditions. The Borine study states the following with
respect to the subject property's suitability for grazing and climate conditions:
"Landscape, climate and soil characteristics determine the suitability for grazing
of livestock. Limitations that are recognized on this site include poor ecological
site conditions, cold climate and soil temperatures that delay growth of forage
Powell/Ramsey, PA -14-2, ZC-14-2 Page 23 of 47
and shorten the growing season. Reestablishment of the native vegetation is
likely impossible due to the pumice ash surface layer, very shallow and shallow
soils and surface stoniness."
Existing and Future Availability of Water for Farm Irrigation Purposes. The record
indicates the subject property has no water rights. The Hearings Officer finds that even if
irrigation water were available, the subject property's soils are too poor to justify irrigating them.
Existing Land Use Patterns. As discussed in the Findings of Fact above, the existing land use
pattern in the area surrounding the subject property consists of a mixture of EFU-zoned land
engaged in farm use and developed with rural residences, and RI -zoned land developed with
rural industrial uses. And as the Borine study notes, the majority of the 9.05 -acre subject
property is either already developed with industrial uses and the irrigation canal, or it has
previously been mined, leaving large areas adjacent to the subject site incapable of cultivation.
Technological and Energy Inputs Required. The Hearings Officer finds excessive
technological and energy inputs — including heavy use of fertilizer and soil amendments and
frequent irrigation — would be required to make the soils on the subject property productive
given the soil's very poor quality.
Accepted Farming Practices. The Hearings Officer finds it is not an accepted farm practice in
Central Oregon to irrigate and cultivate poor quality Class VII and VIII soils — particularly where,
as here, those soils are adjacent to rural industrial uses.
For the foregoing reasons, the Hearings Officer finds the subject property is not suitable for farm
use taking into consideration soil fertility, suitability for grazing, climatic conditions, existing and
future availability of water for farm irrigation purposes, existing land use patterns, technological
and energy inputs required, and accepted farming practices.
(C) Land that is necessary to permit farm practices to be
undertaken on adjacent or nearby agricultural lands.
FINDINGS: As discussed in the Findings of Fact above, much of the subject property and
surrounding lands are engaged in rural industrial or non-farm uses. The record indicates that to
the east of Graystone Lane is Willamette Graystone, a concrete products manufacturing facility.
Across Deschutes Pleasant Ridge Road is land zoned EFU-TRB and developed with a quasi -
commercial park and gift/antique shop called "The Funny Farm." To the south across Deschutes
Market Road is land zoned RI and used for pumice processing, and farther south is EFU-zoned
land along the Highway 97. Across the highway to the west are the Three Sisters Adventist
School and rural residences. West of Highway 97 and north of Tumalo Road is a
building/landscaping supply business on land zoned RC. Although there are some lands across
Highway 97 that are engaged in farm use, the Hearings Officer finds the subject property is not
land necessary to permit farm practices to be undertaken on those lands because none of those
farm uses is dependent upon the subject property.
(b) Land in capability classes other than I-IV/I-VI that is adjacent
to or intermingled with lands in capability classes I-IV/I-VI
within a farm unit, shall be inventoried as agricultural lands
even though this land may not be cropped or grazed.
FINDINGS: As discussed in the findings above, the Borine study found the entire subject
property consists of Class VII and VIII soils and therefore the soils on the subject site are not
Powell/Ramsey, PA -14-2, ZC-14-2 Page 24 of 47
adjacent to or intermingled with higher capability soils. In addition, the Hearings Officer finds the
subject property is neither a farm unit itself nor part of a larger farm unit.
(c) "Agricultural Land" does not include land within
acknowledged urban growth boundaries or land within
acknowledged exception areas for Goals 3 or 4.
FINDINGS: The subject property is not within an acknowledged urban growth boundary (UGB)
or acknowledged exception area.
For the foregoing reasons, the Hearings Officer finds the subject property does not constitute
"agricultural land" under any of the factors listed in this administrative rule.
b. OAR 660-033-0030, Identifying Agricultural Land
(1) All land defined as "agricultural land" in OAR 660-033-0020(1)
shall be inventoried as agricultural land.
FINDINGS: The Hearings Officer finds the applicant has shown through the Borine study that
the subject property is predominantly Class VII and VIII soils. The findings above address the
sub -factors in OAR 660-033-0020(1)(a)(B).
(2) When a jurisdiction determines that the predominant soil
capability classification of a lot or parcel it need only look to
the land within the lot or parcel being inventoried. However,
whether land is "suitable for farm use" requires an inquiry
into factors beyond the mere identification of scientific soil
classifications. The factors listed in the definition of
agricultural land set forth at OAR 660-033-0020(1)(a)(B). This
inquiry requires the consideration of conditions existing
outside the lot or parcel being inventoried. Even if a lot or
parcel is not predominantly Class I -VI soils or suitable from
farm use, Goal 3 nonetheless defines as agricultural "lands in
other classes which are necessary to permit farm practices to
be undertaken on adjacent or nearby lands." A determination
that a lot or parcel is not agricultural land requires findings
supported by substantial evidence that addresses each of the
factors set forth in 660-033-0020(1).
FINDINGS: The Hearings Officer has found the Borine study shows the subject property is
predominantly non-agricultural land based on the soil's capability classification. The findings
above address the factors under OAR 660-033-0020(1). I have considered the conditions
existing outside the subject property as listed in the above analysis, and have found the subject
property is not needed to permit farm practices to be undertaken on adjacent or nearby lands.
(3)
Goal 3 attaches no significance to the ownership of a lot or
parcel when determining whether it is agricultural land.
Nearby or adjacent land, regardless of ownership, shall be
examined to the extent that a lot or parcel is either "suitable
for farm use" or "necessary to permit farm practices to be
undertaken on adjacent or nearby lands" outside the lot or
parcel.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 25 of 47
FINDINGS: The Hearings Officer has taken into account the ownership of surrounding lots or
parcels in determining whether the subject site and/or the entire subject property is suitable for
farm use or necessary to permit farm practices on adjacent or nearby lands. I have found the
subject property is not needed for any farm use to occur on other lands in the area.
(5)
(a) More detailed data on soil capability that in contained in
the USDA Natural Resources Conservation Service (NRCS)
soil maps and soil surveys may be used to define agricultural
land. However, the more detailed soils data shall be related to
the NRCS land capability classification system.
(b) If a person concludes that more detailed soils information
that that contained in the Internet soil survey of soil data and
information produced by the National Cooperative Soil
Survey operated by the NRCS of the USDA as of January 2,
2012, would assist a county to make a better determination of
whether land qualifies as agricultural land, the person must
request that the department arrange for an assessment of the
capability of the land by a professional soil classifier who is
chosen by the person, using the process described in OAR
660-033-0045.
FINDINGS: The applicant submitted the Borine study discussed in the foregoing findings. The
record indicates this study was reviewed and certified by DLCD in accordance with the process
in OAR 660-033-0045 and the NRCS land capability classification system. The Hearings Officer
finds the Borine study is credible based on Mr. Borine's qualifications and the methodology and
detailed analysis in the study.
(c) This section and OAR 660-033-0045 apply to:
(A) A change to the designation of land planned
and zoned for exclusive farm use, forest use or
mixed farm -forest use to a non -resource plan
designation and zone on the basis that such
land is not agricultural land;
FINDINGS: The applicant proposes a change in plan designation from farm use to non -resource
use. The Borine soil study was reviewed and certified by DLCD.
(d) This section and OAR 660-033-0045 implement Oregon
Laws 2010, chapter 44, section 1, effective on October
1, 2011. After this date, only those soils assessments
certified by the department under section (9) of this
rule may be considered by local governments in land
use proceedings described in subsection (c) of this
section. However, a local government may consider
soils assessments that have been completed and
submitted prior to October 1, 2011.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 26 of 47
(e) This section and OAR 660-033-0045 authorize a person
to obtain additional information for use in the
determination of whether land qualifies as agricultural
land, but do not otherwise affect the process by which
a county determines whether land qualifies as
agricultural land as defined by Goal 3 and 660-033-
0020.
FINDINGS: As indicated in foregoing findings, the Borine study was reviewed and certified by
DLCD pursuant to OAR 660-033-0045.
Based on the foregoing findings and conclusions, the Hearings Officer finds the subject property
does not constitute "agricultural land" as defined in Goal 3 and OAR 660-033-0020, and
therefore no exception to Goal 3 is required for the applicant's proposed plan amendment and
zone change from EFU to RI.
GOAL EXCEPTIONS
4. Division 4, Interpretation of Goal 2 Exception Process
GOAL 3
a. OAR 660-004-0010, Application of the Goal 2 Exception Process to
Certain Goals
(1) The exceptions process is not applicable to Statewide Goal 1
"Citizen Involvement" and Goal 2 "Land Use Planning." The
exceptions process is generally applicable to all or part of
those statewide goals which prescribe or restrict certain uses
of resource land or limit the provision of certain public
facilities and services. These statewide goals include but are
not limited to:
(a) Goal 3 "Agricultural Lands"; however, an exception to
Goal 3 "Agricultural Lands" is not required for any of
the farm or nonfarm uses permitted in an Exclusive
Farm Use Zone under ORS Chapter 215 and OAR
chapter 660 division 033, "Agricultural Lands"
FINDINGS: The subject property is zoned EFU-TRB. The applicant has requested a plan
amendment and zone change from EFU to RI. As discussed in detail in the findings above, the
Hearings Officer has found an exception to Goal 3 is not required for the proposed plan
amendment and zone change because the Borine study demonstrates the subject property
does not constitute "agricultural land."
GOAL 14
(c) Goal 14 "Urbanization" as provided for in the
applicable paragraph (1)(c)(A), (B) or (C) of this rule:
* * *
Powell/Ramsey, PA -14-2, ZC-14-2 Page 27 of 47
(D) For an exception to Goal 14 to allow urban
development on rural lands, a local government
must follow the applicable requirements of OAR
660-014-0030 or 660-014-0040, in conjunction
with applicable requirements of this division:
FINDINGS: As discussed in the findings above, Goal 14 is:
To provide for an orderly and efficient transition from rural to urban land use, to
accommodate urban population and urban employment inside urban growth
boundaries, to ensure efficient use of land, and to provide for livable
communities.
The Statewide Planning Goals define "rural land" as:
Land outside urban growth boundaries that is:
(a) Non -urban agricultural, forest or open space,
(b) Suitable for sparse settlement, small farms or acreage homesites with no or
minimal public services, and not suitable, necessary or intended for urban use, or
(c) In an unincorporated community.
The applicant argues no exception to Goal 14 is required for its proposed plan amendment and
zone change because the subject property is rural land and the proposed RI designation and
zoning is by definition rural development. The applicant's Supplemental Burden of Proof states
in relevant part:
"A primary indicator of the rural nature of the proposed uses is the County's
establishment of the `Rural Industrial' zone and its identification in the County
Code of certain permitted uses. In establishing the permitted uses for the RI
zone, the County has already made a policy choice of what constitute non -urban
uses. Furthermore, the permitted uses in the Rural Industrial Zone are limited in
scope to maintain the rural nature of the RI zoned properties and the surrounding
area. Namely, there are limits on the proximity to residential development, limits
on trip generation, limits on parking, and limits on the size of buildings. All of
these limitations substantially restrict the uses, densities and impacts of the
allowable industrial development to preserve the rural character of the zone and
adjoining properties. The allowable uses are also rural because they support
rural activities (i.e. veterinary clinic or tractor supply store), and because many of
the permitted uses are incompatible with an urban setting.
The additional area proposed for rural industrial development will be limited to
2.65 acres. Given the limited size, allowable uses, intensity and lack of need for
urban facilities the proposed use is a rural use and not an urban use."
At the outset, the Hearings Officer agrees with staff that the applicant's original proposal for a
"reasons" exception to Goal 14 for a broad range of industrial uses cannot be justified. In
Columbia River Keeper v. Columbia County, LUBA No. 2014-017/018 (Aug. 27, 2014), LUBA
held that a "reasons" exception is "a more limited vehicle" for an exception than "physically
developed" and "irrevocably committed" exceptions because there must be a "close, direct
Powell/Ramsey, PA -14-2, ZC-14-2 Page 28 of 47
relationship between the reason for the goal exception and the corresponding proposed use(s).
Slip Opinion at p. 11-12. There, as here, the applicant proposed a broad range of industrial uses
without identifying how each proposed use satisfied the criteria for a "reasons" exception to
Goal 14. LUBA held the breadth of potential industrial uses "vastly complicated an already
difficult process" to justify a "reasons" exception and made it virtually impossible for the county
to make adequate findings supporting the goal exception. I find the applicant's original proposal
for a "reasons" exception for a broad, undefined collection of industrial uses is similarly
unsupportable.
As discussed above, the applicant's revised traffic study identified a much more limited list of
proposed RI Zone uses for the subject site — i.e., 7,500 square feet each of light industrial,
building supply/lumber store, and veterinary clinic — for the purpose of demonstrating
compliance with the TPR. The Hearings Officer finds it is possible to conduct a meaningful
"reasons" exception analysis focused on these uses.
In Shaffer v. Jackson County, 17 Or LUBA 922 (1989), LUBA held that industrial uses are not
inherently urban in nature, and "whether a particular industrial use of rural land is urban or rural
requires a case-by-case determination, based on factors identified in the case law." Id., at 931.
In 1000 Friends of Oregon v. LCDC (Curry County). 301 Or 447, 724 P2d 268 (1986), the
Supreme Court identified three factors to be considered in determining whether a use is "urban"
or "rural" for purposes of a Goal 14 exception:
(a) the size of the area in relationship to the developed use (density);
(b) its proximity to an acknowledged UGB and whether the proposed use is likely to become a
magnet attracting people from outside the rural area; and
(c) the types and levels of services which must be provided to it.
In Oregon Shores Conservation Coalition v. Coos County, 55 Or LUBA 545 (2008), LUBA held
the court intended the Curry County factors to be analyzed together rather than in isolation.
With respect to the first Curry County factor, as discussed in the findings above, the subject site
is 2.65 acres in size and comprises approximately one-third of the subject property. The subject
site is surrounded by large parcels zoned RI and developed with rural industrial uses. For these
reasons, the Hearings Officer finds the size of the subject property is relatively small compared
to the developed industrial uses on the subject property and surrounding area.
With respect to the second factor, the record indicates the subject site is located a considerable
distance from the nearest UGBs -- approximately 3 miles north of the Bend UGB and
approximately 6 miles south of the Redmond UGB. The staff report observes that types of
potential uses identified by the applicant in its revised traffic study — i.e., general light industrial
uses, a building supply/lumber store, and a veterinary clinic — could attract customers from
outside the Deschutes Junction area. On the other hand, the Hearings Officer is aware these
types of uses are developed within the Bend and Redmond UGBs. Therefore, residents of Bend
and Redmond might not choose to travel to the subject site to do business, resulting in the
subject property serving primarily residents of the surrounding rural area.
With respect to the third factor, the record indicates the subject property will be served by an
existing rural fire protection district and the county sheriff, and by a private water company that
serves rural and suburban uses in the Bend area. Sewage disposal is provided by an on-site
Powell/Ramsey, PA -14-2, ZC-14-2 Page 29 of 47
septic system currently serving existing industrial uses on the subject property. The Hearings
Officer is aware that Bend's municipal water and sewer systems do not extend north of the
UGB, and in Tight of the distance between the UGB and the subject property I find it is unlikely
either of these systems would be extended to serve the subject site.
Considering the three Curry County factors, the Hearings Officer finds the proposed uses
identified in the applicant's revised traffic study could be considered "urban" in nature. However,
the subject site's small size, relatively large distance from the nearest UGBs, and unique
location and setting, suggest uses on the subject site may be more likely to serve only rural
residents in the Deschutes Junction area. Therefore, I find the question of whether the proposed
uses are "urban" or "rural" is a close one. The staff report states, and I agree, that it is
appropriate to require an exception to Goal 14 for the uses identified in the revised traffic study
so that I can determine if the proposed "reasons" match the proposed uses, and so that I can
establish development limitations as part of the goal exception to assure the subject site is not
developed with "urban" uses.
The applicant submitted evidence and argument supporting both "reasons" and "irrevocably
committed" exceptions. Compliance with the requirements for those exceptions to Goal 14 is
addressed in the findings below.
b. OAR 660-004-0018, Planning and Zoning for Exception Areas
(3)
"REASONS" EXCEPTION
Uses, density, and public facilities and services not meeting
section (2) of this rule may be approved on rural land only
under provisions for a reasons exception as outlined in
section (4) of this rule and applicable requirements of OAR
660-004-0020 through 660-004-0022, 660-011-0060 with regard
to sewer service on rural lands, OAR 660-012-0070 with
regard to transportation improvements on rural land, or OAR
660-014-0030 or 660-014-0040 with regard to urban
development on rural land.
(4) "Reasons" Exceptions:
(a) When a local government takes an exception under the
"Reasons" section of ORS 197.732(1)(c) and OAR 660-
004-0020 through 660-004-0022, plan and zone
designations must limit the uses, density, public
facilities and services, and activities to only those that
are justified in the exception;
FINDINGS: The applicant requests a "reasons" exception to Goal 14 to allow the subject 2.65 -
acre site to be rezoned to RI. This criterion requires that the RI zoning, if approved through a
"reasons" exception, must limit the uses, density, public facilities and services, and activities to
only those that are justified in the exception. As discussed in the findings above, for purposes of
demonstrating compliance with the TPR, the applicant's revised traffic study identified the "worst
case scenario" for industrial development on the subject site to include equal amounts of space
Powell/Ramsey, PA -14-2, ZC-14-2 Page 30 of 47
(7,500 square feet each) for general industrial, building materials/lumber store, and veterinary
clinic development. The Hearings Officer finds my analysis of the applicant's proposed
"reasons" exception will focus on those proposed uses. No new public services or facilities are
proposed.
(b) When a local government changes the types or
intensities of uses or public facilities and services
within an area approved as a "Reasons" exception, a
new "Reasons" exception is required;
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject
property is not located in a previously approved "reasons" exception area.
c. OAR 660-004-020, Goal 2, Part II(c), Exception Requirements:
(1)
If a jurisdiction determines there are reasons consistent with
OAR 660-04-022 to use resource lands for uses not allowed
by the applicable Goal, the justification shall be set forth in
the comprehensive plan as an exception.
FINDINGS: The proposal's compliance with OAR 660-04-022 is discussed in the findings below.
(2) The four factors of Goal 2 Part II(c) required to be addressed
when taking an exception to a Goal are:
(a) "Reasons justify why the state policy embodied in the
applicable goals should not apply": The exception
shall set forth the facts and assumptions used as the
basis for determining that a state policy embodied in a
goal should not apply to specific properties or
situations including the amount of land for the use
being planned and why the use requires a location on
resource land:
FINDINGS: The Hearings Officer finds that to comply with this administrative rule the applicant
must demonstrate or explain: (1) the basis for determining that state policy embodied in the
applicable goals should not apply; (2) the amount of land that is required for the use being
planned; and (3) why the use requires a location on resource land. Each of these factors is
addressed separately in the findings below:
1. Basis for Determining State Policy Embodied in the Goals Should Not Apply.
The state policy embodied in Goal 14, Urbanization, includes providing an orderly transition
from rural to urban uses and assuring efficient use of the land. The subject property is
considered "rural" because it is not located within a UGB or an Urban Unincorporated Area.
The applicant argues the policy embodied in Goal 14 should not apply to the subject property
because of its location adjacent to and surrounded by existing industrial operations and its non-
agricultural soils that make its use for agriculture inefficient. Staff responds that rezoning the
subject site to RI could allow urban -density development in a rural area, resulting in a disorderly
transition from rural to urban uses.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 31 of 47
As discussed above, the Hearings Officer has found the subject property is unique because it is
bounded on all sides by roads, an irrigation canal and railroad tracks, and because it is virtually
surrounded by existing industrial and quasi -commercial development. The subject property has
no irrigation water rights, appears never to have been cultivated, and is comprised of non-
agricultural soils. Therefore, I agree with the applicant that it is not efficient to use the subject
site for agriculture. However, the existing Deschutes Junction area consists primarily of long-
standing industrial uses requiring large lots for processing and materials storage with little or no
retail or service or traffic. In contrast, if the proposed plan amendment and zone change to RI
are approved, the applicant intends to develop the subject property with new uses including
retail and service uses. Nevertheless, because of the unique nature and location of the subject
site, and its distance from the Bend and Redmond UGBs, and the use limitations required for a
goal exception, I find such development is not likely to result in a disorderly transition from rural
to urban development, and therefore the state policy embodied in Goal 14 should not apply.
2. The Amount of Land Required for the Use Being Planned.
As discussed above, the applicant did not propose any particular development in conjunction
with its applications for a plan amendment and zone change, but rather proposed that the
subject site could be developed with a wide range of industrial uses. However, the applicant's
revised traffic study identified a "worst case" development scenario to demonstrate compliance
with the TPR that would include 7,500 square feet of light industrial uses, 7,500 square feet of
building material/lumber store, and 7,500 square feet of veterinary clinic, for a total of 22,500
square feet of building floor area on the 2.65 -acre subject site. That proposal leaves
approximately 21,000 square feet of area for outside storage of goods, parking and
maneuvering of vehicles, etc., which the Hearings Officer finds would be adequate. The
applicant's burden of proof notes a portion of the remainder of the subject property currently
zoned EFU-TRB — a vegetated area along Highway 97 — is not included in this application
because it "is not usable and provides a buffer from the highway." For these reasons, the
Hearings Officer finds the amount of land proposed for rezoning is appropriate because it
appears to be large enough for the proposed uses but is not excessive.
3. Why the Use Requires a Location on Resource Land.
As discussed in the findings above, the Hearings Officer has found that based on the Borine
study the subject property does not constitute agricultural land because it consists entirely of
Class VII and VIII soils. Based on the soil study the applicant argues the subject property is not
"resource land." However, the staff report states, and I agree, that because the subject property
presently is zoned EFU-TRB it is resource land and the applicant must address this factor.
The subject property and surrounding area are developed with industrial and quasi -commercial
uses that virtually surround the subject site. For these reasons the applicant argues it is
appropriate to include the subject site in the existing RI designation and zoning because of its
unique location and characteristics, and so that it can be used in conjunction with the remainder
of the subject property. While the Hearings Officer can't argue with that logic, I find it is not
sufficient to demonstrate the proposed uses identified in the applicant's revised traffic study, or
other uses permitted in the RI Zone, require a location on resource land.
(b) Areas which do not require a new exception cannot
reasonably accommodate the use:
Powell/Ramsey, PA -14-2, ZC-14-2 Page 32 of 47
FINDINGS: The applicant argues that areas that don't require an exception cannot
accommodate the proposed uses because: (1) there is limited land in the county zoned RI; and
(2) other RI -zoned land either is fully developed or is located in La Pine which the applicant
argues is too far away to utilize in conjunction with existing uses on the subject property.
However, the staff report notes that the approximately 2.5 -acre eastern portion of the subject
property zoned RI also is an alternative area that does not require a new exception and the
existing building on that land is presently available for rental. In addition, the staff report states,
and the Hearings Officer agrees, that the applicant cannot limit its review under this factor to
land currently zoned RI inasmuch as other land zoned for industrial use within the Bend and
Redmond UGBs may be available and therefore should be included in the analysis.
Although the applicant has stated its intent to utilize the subject site "in conjunction with the
remaining parcel," as discussed throughout this decision if the subject site is designated and
zoned RI it has the potential to be developed with a variety of uses that do not require proximity
to the existing industrial use, such as the building supply/lumber store and veterinary clinic uses
identified in the applicant's revised traffic study. Moreover, the applicant's supplemental burden
of proof states it intends to "pursue multiple permitted RI uses on the subject property" that
could not be clustered on other RI -zoned properties. The Hearings Officer finds that in the
absence of more specific identification of proposed uses, a more thorough analysis of where
such uses could be permitted outright or conditionally, and an explanation of why other portions
of the subject property zoned RI are not suitable, I am not persuaded that there are no areas not
requiring an exception that could accommodate those uses.
(A) The exception shall indicate on a map or
otherwise describe the location of possible
alternative areas considered for the use, which
do not require a new exception. The area for
which the exception is taken shall be identified;
(B) To show why the particular site is justified, it is
necessary to discuss why other areas which do
not require a new exception cannot reasonably
accommodate the proposed use. Economic
factors can be considered along with other
relevant factors in determining that the use
cannot reasonably be accommodated in other
areas. Under the alternative factor the following
questions shall be addressed:
(i) Can the proposed use be reasonably
accommodated on nonresource land that
would not require an exception,
including increasing the density of uses
on nonresource land? If not, why not?
(ii) Can the proposed use be reasonably
accommodated on resource land that is
already irrevocably committed to
nonresource uses, not allowed by the
applicable Goal, including resource land
in existing rural centers, or by increasing
Powell/Ramsey, PA -14-2, ZC-14-2 Page 33 of 47
the density of uses on committed lands?
If not, why not?
(iii) Can the proposed use be reasonably
accommodated inside an urban growth
boundary? If not, why not?
FINDINGS: The applicant submitted a map identifying the area for which the exception is
proposed, as well as a map showing four RI -zoned properties that are alternative areas the
applicant considered for the use. These properties include: (1) a 35.52 -acre parcel owned by
the Oregon Military Department near Redmond Airport; (2) a 31 -acre parcel owned by 4-R
Equipment located northeast of the Bend UGB; (3) a 13.4 -acre parcel owned by
Simpson/Glazebrook located north of the Bend UGB; and (4) an 11.9 -acre parcel owned by Vic
Russell Construction and located near LaPine. The applicant states the 13.4 -acre parcel could
not reasonably accommodate the proposed uses because it is fully developed. With respect to
the other three parcels, the applicant argues they cannot reasonably accommodate the
proposed uses because they are not close enough to the subject property to allow coordinated
use thereof. However, as discussed elsewhere in this decision, the industrial uses identified in
the applicant's revised traffic study do not require proximity to the remainder of the subject
property. Moreover, the applicant does not indicate whether or to what extent the other three RI -
zoned parcels are available for purchase or lease. The Hearings Officer finds that in the
absence of such evidence, the applicant has failed to demonstrate the proposed uses cannot be
reasonably accommodated on non -resource land. Columbia River Keeper v. Columbia County.
In addition, I have found the applicant has failed to show the uses identified in the revised traffic
study could not be reasonably accommodated within the Bend and/or Redmond UGBs.
Therefore, I find the applicant has not demonstrated compliance with these three factors.
(iv) Can the proposed use be reasonably
accommodated without the provision of
a proposed public facility or service? If
not, why not?
FINDINGS: The Hearings Officer finds this factor is not applicable because no public facilities or
services are proposed.
(C) The alternative areas standard can be met by a
broad review of similar types of areas rather
than a review of specific alternative sites.
Initially, a local government adopting an
exception need assess only whether those
similar types of areas in the vicinity could not
reasonably accommodate the proposed use.
Site specific comparisons are not required of a
local government taking an exception, unless
another party to the local proceeding can
describe why there are specific sites that can
more reasonably accommodate the proposed
use. A detailed evaluation of specific alternative
sites is thus not required unless such sites are
specifically described with facts to support to
support the assertion that the sites are more
Powell/Ramsey, PA -14-2, ZC-14-2 Page 34 of 47
reasonable by another party during the local
exceptions proceeding.
FINDINGS: For the reasons set forth in the findings above concerning the exception factors in
paragraphs (i), (ii) and (iii), incorporated by reference herein, the Hearings Officer finds the
applicant has not demonstrated compliance with this paragraph.
For the foregoing reasons, the Hearings Officer finds the applicant has not demonstrated
compliance with this exception criterion.
c) The long-term environmental, economic, social and
energy consequences resulting from the use at the
proposed site with measures designed to reduce
adverse impacts are not significantly more adverse
than would typically result from the same proposal
being located in other areas requiring a Goal
exception. The exception shall describe the
characteristics of each alternative areas considered by
the jurisdiction for which an exception might be taken,
the typical advantages and disadvantages of using the
area for a use not allowed by the Goal, and the typical
positive and negative consequences resulting from the
use at the proposed site with measures designed to
reduce adverse impacts. A detailed evaluation of
specific alternative sites is not required unless such
sites are specifically described with facts to support
the assertion that the sites have significantly fewer
adverse impacts during the local exceptions
proceeding. The exception shall include the reasons
why the consequences of the use at the chosen site
are not significantly more adverse than would typically
result from the same proposal being located in areas
requiring a goal exception other than the proposed
site. Such reasons shall include but are not limited to,
the facts used to determine which resource land is
least productive; the ability to sustain resource uses
near the proposed use; and the long-term economic
impact on the general area caused by irreversible
removal of the land from the resource base. Other
possible impacts include the effects of the proposed
use on the water table, on the costs of improving
roads and on the costs to special service districts;
FINDINGS:
Environmental. The applicants argue, and the Hearings Officer agrees, that the subject
property's poor quality soils and lack of irrigation make it unsuitable for agriculture. Moreover, I
agree with the applicant that the environmental impacts from industrial use of the subject site
would be substantially limited given the subject property's location near Highway 97, the BNSF
railroad tracks, and other industrial property and its relatively small size. The applicant argues
that any RI use of the property would have lower environmental impacts than would result from
Powell/Ramsey, PA -14-2, ZC-14-2 Page 35 of 47
utilizing a remote property for that use, due to "coordinated and centralized operations".
However, the staff report states, and I agree, that inasmuch as the applicant has not limited its
proposal to uses coordinating with the uses on the existing RI -zoned portion of the subject
property, reduced vehicle trips are not guaranteed. I also concur with staff's concern that some
uses permitted outright and conditionally in the RI Zone — such as pulp and paper
manufacturing operations — have the potential to produce adverse environmental impacts to
agricultural and residential uses.
Economic. The applicant argues the subject property has little or no economic value in its
current EFU zoning because it is unsuitable for agriculture and because of its location between
Highway 97 and the rest of the rural industrial property. The staff report states, and the Hearings
Officer agrees, that while rezoning the subject site to RI certainly would create expanded
economic opportunity, the site's existing EFU zoning provides economic opportunities through
uses including a facility for the primary processing of forest products, a landscape contracting
business, and a commercial dog boarding kennel.
Social. Previous applications for plan amendments and zone changes requiring goal exceptions
have analyzed impacts to nearby residences. The Assessor's data in the record show a dwelling
located on the "Funny Farm" property across Deschutes Pleasant Ridge Road to the north. The
Hearings Officer shares staff's concern that some RI Zone uses could have adverse impacts on
that dwelling. The Assessor's data show other nearby dwellings are located over 1,500 feet from
the subject property and buffered by existing rural industrial lands, and for that reason I agree
with staff's observation that the impacts on those dwellings would be minimal due to the subject
property's location. 1 also agree with staff's observation that the RI Zone establishes some
development restrictions that would protect adjacent neighbors from adverse impacts.
Energy. The applicant argues the proposed use would have lower energy impacts than would
result from utilizing a remote property for the proposed industrial uses due to "reduce[d] vehicle
miles traveled in comparison to utilizing remote alternative sites". However, as discussed in the
findings above, the Hearings Officer has found that inasmuch as the applicant's proposed plan
amendment and zone change do not limit proposed development of the subject site to uses in
conjunction with uses on the existing RI -zoned portion of the subject property, it is not
appropriate to assume reduced vehicle trips through centralized or coordinated operations.
For the foregoing reasons, the Hearings Officer finds the applicant has not demonstrated
compliance with this exception criterion.
(d) The proposed uses are compatible with other adjacent
uses or will be so rendered through measures
designed to reduce adverse impacts. The exception
shall describe how the proposed use will be rendered
compatible with adjacent land uses. The exception
shall demonstrate that the proposed use is situated in
such a manner as to be compatible with surrounding
natural resource and resource management or
production practices. "Compatible" is not intended as
an absolute term meaning no interference or adverse
impacts of any type with adjacent uses.
FINDINGS: As discussed above, the record indicates there is a dwelling on the "Funny Farm"
property to the north across Deschutes Pleasant Ridge Road and other dwellings located much
Powell/Ramsey, PA -14-2, ZC-14-2 Page 36 of 47
farther from the subject site. The Hearings Officer has found that impacts from industrial
development on the more distance dwellings from RI Zone uses on the subject site will be
minimal but that certain RI Zone uses could create negative impacts on the dwelling
immediately to the north. Because the applicant has not identified the particular light industrial
uses that would occur on the subject site with RI zoning, I cannot find the applicant has
demonstrated compliance with this criterion.
(4) For the expansion of an unincorporated community defined
under OAR 660-022-0010. The exception requirements of
subsections (2)(b), (c), and (d) of this rule are modified to also
include the following:
FINDINGS: The Hearings Officer finds this criterion is not applicable because the subject site
and subject property do not constitute an "unincorporated community," defined in OAR 660-022-
0010(10)(e) and Section 18.04.030 of the county code as land having a zoning designation
"Urban Unincorporated Community," "Rural Service Center," "Resort Community" or Rural
Community."
d. OAR 660-04-022, Reasons Necessary to Justify an Exception Under
Goal 2, Part II(c):
An exception under Goal 2, Part II(c) can be taken for any use not
allowed by the applicable goal(s). The types of reasons that may or
may not be used to justify certain types of uses not allowed on
resource lands are set forth in the following sections of this rule:
* * *
(3)
Rural Industrial Development: For the siting of industrial
development on resource land outside an urban growth
boundary, appropriate reasons and facts include but are not
limited to the following:
(a) The use is significantly dependent upon a unique
resource located on agricultural or forest land.
Examples of such resources and resource sites
include geothermal wells, mineral or aggregate
deposits, water reservoirs, natural features, or river or
ocean ports; or * * *
FINDINGS: The applicant argues that because the soils on the subject property are non-
agricultural soils the subject property is not "resource land." The Hearings Officer has rejected
that argument because the subject site currently is zoned EFU-TRB. I find the applicant has not
shown the RI Zone uses with which the subject site could be developed are "significantly
dependent upon a unique resource" on the subject property.
(b) The use cannot be located inside an urban growth
boundary due to impacts that are hazardous or
incompatible in densely populated areas; or
Powell/Ramsey, PA -14-2, ZC-14-2 Page 37 of 47
FINDINGS: As discussed in the findings above, incorporated by reference herein, the Hearings
Officer has found the applicant had not demonstrated the uses identified for the subject site with
RI zoning cannot be located within the Bend and/or Redmond UGB.
(c) The use would have a significant comparative
advantage due to its location (e.g. near existing
industrial activity, an energy facility, or products
available from other rural activities), which would
benefit the county economy and cause only minimal
Toss of productive resource lands. Reasons for such a
decision should include a discussion of the lost
resource productivity and values in relation to the
county's gain from the industrial use, and the specific
transportation and resource advantages which
support the decision.
FINDINGS:
Location. The applicant argues increasing industrial density on the subject property would allow
for coordinated, centralized operations and favorable clustering of industrial uses at Deschutes
Junction, which in turn would expand job opportunities and increase land values to the benefit of
the county economy. The staff report observes, and the Hearings Officer agrees, that the
applicant's argument is based on an unsupported assumption that use of the subject site
following rezoning to RI would be in conjunction with the use on the remainder of the subject
property currently zoned RI. As discussed in the findings above, the applicant has stated its
intent to develop the subject site with multiple RI Zone uses.
Benefit to County Economy. The Hearings Officer concurs with the applicant that industrial
use on the subject site will benefit the county's economy by allowing the applicant to expand its
business operations thereon and by increasing the assessed value of the rezoned site.
However, I agree with staff that because the applicant has not identified a particular use of the
site it has not demonstrated that industrial development of the site would be of any greater
benefit than similar development on another industrial -zoned site.
Minimal Loss of Productive Resource Lands. The Hearings Officer finds that because the
subject property is composed entirely of Class VII and VIII soils, has no irrigation water rights,
and appears never to have been in farm use, rezoning the subject site from EFU to RI would not
result in the loss of productive resource lands.
For the foregoing reasons, the Hearings Officer finds the applicant has not demonstrated
compliance with this exception criterion.
Based on the foregoing findings, the Hearings Officer finds the applicant has not
demonstrated its proposal qualifies for a "reasons" exception to Goal 14.
"IRREVOCABLY COMMITTED" EXCEPTION
d. OAR 660-004-0028, Exception Requirements for Land Irrevocably
Committed to Other Uses
(1)
A local government may adopt an exception to a goal when
the land subject to the exception is irrevocably committed to
Powell/Ramsey, PA -14-2, ZC-14-2 Page 38 of 47
uses not allowed by the applicable goal because existing
adjacent uses and other relevant factors make uses allowed
by the applicable goal impracticable:
(a) A "committed exception" is an exception taken in
accordance with ORS 197.732(2)(b), Goal 2, Part II(b),
and with the provisions of this rule, except where
other rules apply as described in OAR 660-004-0000(1).
(b) For the purposes of this rule, an "exception area" is
that area of land for which a "committed exception" is
taken.
(c) An "applicable goal," as used in this rule, is a
statewide planning goal or goal requirement that
would apply to the exception area if an exception were
not taken. (Emphasis added.)
FINDINGS: The applicant argues it is entitled to an "irrevocably committed" exception to Goal
14 because existing adjacent uses and other relevant factors make uses allowed by the
applicable goal impracticable. Compliance with the requirements for such an exception are
addressed in the findings below.
(2) Whether land is irrevocably committed depends on the
relationship between the exception area and the lands
adjacent to it. The findings for a committed exception
therefore must address the following:
(a) The characteristics of the exception area;
FINDINGS: As set forth above, the "exception area" is the area for which the exception is being
requested — i.e., the subject site. As discussed in the findings above, the subject property is
undeveloped. It is composed of Class VII and VIII soils, has no irrigation water rights, and
appears never to have been in farm use. The subject site is not and apparently never has been
used in conjunction with nearby farm units or activities, and the Hearings Officer has found such
use impracticable in light of the subject site's location and isolation from farms in the
surrounding area. As also discussed above, the subject site is isolated from all but the
remainder of the subject property by roads, the Pilot Butte Canal, and the BNSF railroad tracks.
The applicant states, and I agree, that the subject site is virtually surrounded by industrial
development and major roadways, has limited access, and is of limited value or practical use in
its current EFU zoning.
(b) The characteristics of the adjacent lands;
FINDINGS: The area surrounding the subject property consists primarily of existing industrial
zoning and uses and EFU zoning and uses. To the east across Graystone Lane is Willamette
Graystone, a concrete products manufacturing facility. To the north across Deschutes Pleasant
Ridge Road is EFU-zoned land developed with the "Funny Farm," a quasi -commercial park and
gift/antique shop. On the northern part of the "Funny Farm" is small-scale farm use on 11
irrigated acres of pasture. The adjacent property to the east of the "Funny Farm" and the canal,
Tax Lot 202 of Assessor's Map 16-12-26A, has 18 irrigated acres. To the south across
Powell/Ramsey, PA -14-2, ZC-14-2 Page 39 of 47
Deschutes Market Road is RI -zoned land used for pumice processing as well as vacant EFU-
zoned land along the Highway 97 frontage. Across Highway 97 to the west are some EFU-
zoned land currently engaged in farm use. Also west of the highway are the Three Sisters
Adventist School, rural residences, and a building/landscaping supply business on land zoned
RC north of Deschutes Pleasant Road. Based on this information, the Hearings Officer finds the
adjacent properties are predominately engaged in non -resource uses.
(c) The relationship between the exception area and the
lands adjacent to it; and
FINDINGS: The record indicates the subject Property does not abut any residential or resource
uses. As discussed in detail in findings elsewhere in this decision, the subject site is surrounded
by industrial uses and is separated and isolated from resource and residential uses by roads,
the canal, and the BNSF railroad tracks. The Hearings Officer finds the relationship between the
exception area and the lands adjacent to it leads to the conclusion that the site is essentially a
part of the existing Deschutes Junction industrial complex. These adjacent uses include mining
operations, aggregate processing, heavy equipment operations, and cement products
manufacturing. The applicant states, and I agree, that these surrounding uses, coupled with the
poor quality of the site's soils and the lack of irrigation, make the subject site unsuitable for
agricultural or residential uses.
(d) The other relevant factors set forth in OAR 660-004-
0028(6).
FINDINGS: The relevant factors in OAR 660-004-0028(6) are addressed below.
(3)
Whether uses or activities allowed by an applicable qoal are
impracticable as that term is used in ORS 197.732(2)(b), in
Goal 2, Part II(b), and in this rule shall be determined through
consideration of factors set forth in this rule, except where
other rules apply as described in OAR 660-004-0000(1).
Compliance with this rule shall constitute compliance with
the requirements of Goal 2, Part ll. It is the purpose of this
rule to permit irrevocably committed exceptions where
justified so as to provide flexibility in the application of broad
resource protection goals. It shall not be required that local
governments demonstrate that every use allowed by the
applicable goal is "impossible." For exceptions to Goals 3 or
4, local governments are required to demonstrate that only
the following uses or activities are impracticable:
(a) Farm use as defined in ORS 215.203;
(b) Propagation or harvesting of a forest product as
specified in OAR 660-033-0120; and
(c) Forest operations or forest practices as specified in
OAR 660-006-0025(2)(a). (Emphasis added.)
FINDINGS: The applicant is requesting an exception to Goal 14, Urbanization, to rezone and re-
designate the subject site to RI and Rural Exception Area, respectively, on the basis that the
Powell/Ramsey, PA -14-2, ZC-14-2 Page 40 of 47
subject site is irrevocably committed to non -resource use due to its characteristics and its
relationship to the surrounding land, most of which is engaged in non -resource (industrial) uses.
The site's current EFU-TRB zoning allows outright or conditionally a variety of uses. The
Hearings Officer finds the farm and forest uses allowed in the EFU Zone — along with uses
related to or dependent upon those uses -- would be impracticable due to its small size, the
poor quality of the site's soils, and the site's lack of irrigation. I find the other resource -related
uses allowed in the EFU Zone — e.g., mining, wetland creation, wildlife habitat conservation —
would be impracticable considering the subject site's size and location. The road -related uses
allowed in the EFU Zone would be impracticable given the site's isolated location and small
size.
With respect to residential and related uses (e.g., nonfarm dwelling, church, community center,
park, room -and -board facility, etc.) The Hearings Officer finds the site's location surrounded by
industrial uses, roads and railroad tracks would make the establishment of such uses
impracticable. With respect to irrigation -related uses, I concur with the applicant that the Pilot
Butte Canal's location at a lower elevation than the subject property would make the
establishment of irrigation -related facilities on the subject site impracticable. Finally, I find the
assortment of utility and similar uses allowed in the EFU Zone (e.g., utility facilities, transmission
towers, personal use airports, solar power generating facilities, etc.) also would be impracticable
on the subject site due to its small size and isolated location.
(4) A conclusion that an exception area is irrevocably committed
shall be supported by findings of fact that address all
applicable factors of section (6) of this rule and by a
statement of reasons explaining why the facts support the
conclusion that uses allowed by the applicable goal are
impracticable in the exception area.
FINDINGS: Compliance with the factors in section (6) is addressed in the findings below.
(5)
Findings of fact and a statement of reasons that land subject
to an exception is irrevocably committed need not be
prepared for each individual parcel in the exception area.
Lands that are found to be irrevocably committed under this
rule may include physically developed lands.
FINDINGS: The applicant's proposed exception area consists of a portion of a single split -zoned
parcel that is undeveloped except for gravel roads and vehicle maneuvering areas.
(6) Findings of fact for a committed exception shall address the
following factors:
(a) Existing adjacent uses;
FINDINGS: As discussed in detail in the findings above, uses adjacent the proposed exception
area consist of existing industrial uses, roads, an irrigation canal and railroad tracks. The
applicant states, and the Hearings Officer agrees, that taking an exception to Goal 14 for the
subject site will have little if any effect on these adjacent uses. I also agree such an exception
may benefit the adjacent industrial uses by allowing new rural industrial uses compatible with
the existing uses. And even assuming the "Funny Farm" and the adjacent farm -zoned property
to the east could be considered "adjacent" uses since they are located across Deschutes
Powell/Ramsey, PA -14-2, ZC-14-2 Page 41 of 47
Pleasant Ridge Road from the subject site, the applicant correctly notes these properties have
been located in close proximity to existing industrial uses in Deschutes Junction for many years
with little or no conflicts.
(b) Existing public facilities and services (water and sewer
lines, etc.);
FINDINGS: The record indicates there are no public water or sewer facilities in the vicinity of the
subject property. The subject property is served by an on-site septic system and water from a
private water company. Moreover, the applicant's proposal to develop the subject site with RI
Zone uses will not require public water or sewer facilities. The subject property will continue to
receive fire and police protection from the Deschutes Rural Fire Protection District and the
Deschutes County Sheriff.
(c) Parcel size and ownership patterns of the exception
area and adjacent lands:
(A) Consideration of parcel size and ownership
patterns under subsection (6)(c) of this rule
shall include an analysis of how the existing
development pattern came about and whether
findings against the goals were made at the
time of partitioning or subdivision. Past land
divisions made without application of the goals
do not in themselves demonstrate irrevocable
commitment of the exception area. Only if
development (e.g., physical improvements such
as roads and underground facilities) on the
resulting parcels or other factors makes
unsuitable their resource use or the resource
use of nearby lands can the parcels be
considered to be irrevocably committed.
Resource and nonresource parcels created and
uses approved pursuant to the applicable goals
shall not be used to justify a committed
exception. For example, the presence of several
parcels created for nonfarm dwellings or an
intensive commercial agricultural operation
under the provisions of an exclusive farm use
zone cannot be used to justify a committed
exception for the subject parcels or land
adjoining those parcels.
FINDINGS: The applicant's Second Supplemental Burden of proof states the Deschutes
Junction area and the establishment of its industrial uses resulted from a combination of goal
exceptions and legislative zone changes. In addition, the applicant notes that some of the
existing uses — e.g., Cascade Pumice and Willamette Graystone -- pre-existed adoption of the
county's initial zoning ordinance. The record indicates the existing RI zoning on the subject
property resulted from the county's granting of an exception to Goal 3 and subsequent zone
change from EFU to RI on the basis of findings that the soils were not suitable for agriculture.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 42 of 47
The applicant states, and the Hearings Officer agrees, that the existing exception area at
Deschutes Junction did not become irrevocably committed to industrial uses on account of a
land division, but rather from pre-existing industrial development occurred on adjacent lands,
the county's 1980 approval of an industrial use on the RI -zoned portion of the subject property
(CU -80-145), and construction of the Deschutes Market/Tumalo Road/Highway 97 overpass. I
concur with the applicant that these developments effectively isolated the existing Deschutes
Junction exception area between physical barriers and adjacent industrial development.
(B) Existing parcel sizes and contiguous
ownerships shall be considered together in
relation to the land's actual use. For example,
several contiguous undeveloped parcels
(including parcels separated only by a road or
highway) under one ownership shall be
considered as one farm or forest operation. The
mere fact that small parcels exist does not in
itself constitute irrevocable commitment. Small
parcels in separate ownerships are more likely
to be irrevocably committed if the parcels are
developed, clustered in a large group or
clustered around a road designed to serve
these parcels. Small parcels in separate
ownerships are not likely to be irrevocably
committed if they stand alone amidst larger
farm or forest operations, or are buffered from
such operations;
FINDINGS: The record indicates the RI -zoned parcels in Deschutes Junction range in size from
1.41 to 18.69. The record also indicates that Jack Robinson and Sons and 4-R Equipment, a
related owner, own the majority of the RI -zoned land (approximately 63 of 77 RI -zoned acres).
The applicant argues, and the Hearings Officer agrees, that although some of the existing RI -
zoned parcels are small, it is not the size of the RI -zoned parcels that makes the exception area
— the subject site -- irrevocably committed to non -resource uses. Rather, the exception area is
irrevocably committed because it is a relatively small and isolated parcel surrounded by
contiguous RI -zoned parcels and uses and physical barriers. I concur with the applicant's
observation that the RI -zoned parcels do not stand alone amidst larger farm or forest operations
because no such operations existing in the surrounding area.
(d) Neighborhood and regional characteristics;
FINDINGS: The region surrounding Deschutes Junction can be characterized as predominantly
agricultural with small and medium-sized farms and rural residences. The Deschutes Junction
neighborhood consists of a pocket of industrial and quasi -commercial uses mixed with a few
farms and rural residences. The applicant argues, and the Hearings Officer agrees, that
although there are farm uses in the neighborhood, the subject property and site are physically
separated from them by roads, the canal, the railroad tracks, and existing industrial uses so that
approval of the proposed exception to add land to the existing exception area would result in
little if any change in the character of the neighborhood.
(e) Natural or man-made features or other impediments
separating the exception area from adjacent resource
land. Such features or impediments include but are not
Powell/Ramsey, PA -14-2, ZC-14-2 Page 43 of 47
limited to roads, watercourses, utility lines,
easements, or rights-of-way that effectively impede
practicable resource use of all or part of the exception
area;
FINDINGS: As discussed throughout this decision, the proposed exception area — the subject
site -- is physically separated from resource lands by several man-made impediments including
roads, an irrigation canal, a railroad, and industrial development.
(f)
Physical development according to OAR 660-004-0025;
and
FINDINGS: The record indicates the only physical development on the exception area consists
of gravel roads and vehicle maneuvering areas and outdoor storage. The applicant states, and
the Hearings Officer agrees, that although this development is minimal it does effectively
preclude resource uses -- agriculture and forestry — in the exception area.
(g) Other relevant factors.
FINDINGS: The applicant argues, and the Hearings Officer agrees, that another relevant factor
for finding the proposed exception area is irrevocably committed to non -resource uses is the
existence of a road system that supports significant traffic, detracting from the suitability of the
subject site for resource or other uses permitted in the EFU Zone.
(7)
The evidence submitted to support any committed exception
shall, at a minimum, include a current map or aerial
photograph that shows the exception area and adjoining
lands, and any other means needed to convey information
about the factors set forth in this rule. For example, a local
government may use tables, charts, summaries, or narratives
to supplement the maps or photos. The applicable factors set
forth in section (6) of this rule shall be shown on the map or
aerial photograph.
FINDINGS: The applicant's submitted materials include maps and aerial photographs of the
subject property and surrounding area as well as ground -level photos of the subject site. The
Hearings Officer finds these maps and photos support the proposed exception by demonstrating
the isolated nature of the subject site and the significant existing industrial development on
surrounding land.
e. OAR 660-014-0030, Rural Lands Irrevocably Committed to Urban
Levels of Development
(1)
A conclusion, supported by reasons and facts, that rural land
is irrevocably committed to urban levels of development can
satisfy the Goal 2 exceptions standard (e.g., that it is not
appropriate to apply Goals 14's requirement prohibiting the
establishment of urban uses on rural lands). If a conclusion
that land is irrevocably committed to urban levels of
development is supported, the four factors in Goal 2 and OAR
660-004-0020(2) need not be addressed.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 44 of 47
FINDINGS: Based on the foregoing findings of fact and reasons, the Hearings Officer finds the
proposed exception area — the subject site — is irrevocably committed to non -resource uses in
general, and to industrial and quasi -commercial uses at urban levels in particular. I concur with
the applicant's argument that the exception area is unsuitable for rural uses because of its size,
poor quality soils, lack of irrigation, and location virtually surrounded by existing industrial
development which makes use of the site with rural uses impracticable. Because I find the
exception area has been irrevocably committed, I need not address the four factors in Goal 2
and OAR 660-004-0020(2) for the requested exception to Goal 14. However, I have addressed
those factors in the findings at pages 32-37 above.
(2) A decision that land has been built upon at urban densities or
irrevocably committed to an urban level of development
depends on the situation at the specific site. The exact nature
and extent of the areas found to be irrevocably committed to
urban levels of development shall be clearly set forth in the
justification for the exception. The area proposed as land that
is built upon at urban densities or irrevocably committed to
an urban level of development must be shown on a map or
otherwise described and keyed to the appropriate findings of
fact.
FINDINGS: The findings and conclusions supporting the Hearings Officer's determination that
the subject site is irrevocably committed to an urban level of development are set forth in detail
in the findings above. As discussed in those findings, the applicant submitted maps and aerial
photos depicting the subject site, and I find that as a condition of approval for the proposed plan
amendment, zone change and goal exception the applicant will be required to submit to the
Planning Division a metes -and -bounds description of the exception area.
(3)
A decision that land is committed to urban levels of
development shall be based on findings of fact, supported by
substantial evidence in the record of the local proceeding,
that address the following:
FINDINGS: The Hearings Officer has addressed the factors in this paragraph in the findings
above. However, for purposes of review, I make the following findings.
(a) Size and extent of commercial and industrial uses;
FINDINGS: The exception area is 2.65 acres in size. It is not currently developed with industrial
or commercial uses, but has gravel areas for vehicle maneuvering and materials and equipment
storage supporting adjacent industrial uses on the remainder of the subject property, and is
surrounded by industrial development.
(b) Location, number and density of residential dwellings;
FINDINGS: The record indicates there is one rural residence on the "Funny Farm" property
approximately 600 feet to the north across Deschutes Pleasant Ridge Road, and several rural
residences on surrounding lands located at least 1,500 feet from the exception area.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 45 of 47
(c) Location of urban levels of facilities and services;
including at least public water and sewer facilities; and
FINDINGS: The record indicates there are no public water or sewer facilities on or near the
subject property. The Hearings Officer is aware that the closest of such facilities are located
within the Bend UGB which is at its closest point 3 miles south of the exception area.
(d) Parcel sizes and ownership patterns.
FINDINGS: As discussed in the findings above, RI -zoned parcels in the Deschutes Junction
area total approximately 77 acres in several tax lots, with most properties under 10 acres in
size. The 2.65 -acre exception area comprises less than 3.5% of the Deschutes Junction
industrial area. Most of the RI -zoned land is owned by two related businesses, and consists of
aggregate processing, and the construction of concrete products and supplies. As also
discussed above, Deschutes Junction includes several acres of RC zoning on the west side of
Highway 97, as well as quasi -commercial uses at the "Funny Farm."
(4) A conclusion that rural land is irrevocably committed to
urban development shall be based on all of the factors listed
in section (3) of this rule. The conclusion shall be supported
by a statement of reasons explaining why the facts found
support the conclusion that the land in question is committed
to urban uses and urban level development rather than a rural
level of development.
FINDINGS: As discussed extensively in the findings above, the Hearings Officer has found the
proposed exception area — the subject site -- is irrevocably committed to non -resource uses and
urban development because: (1) it does not constitute agricultural land and is not suitable for
farm or forest use; (2) it is a relatively small parcel isolated from other EFU-zoned land; (3) it is
virtually surrounded by industrial uses; and (4) it is isolated by man-made barriers including
roads, the Pilot Butte Canal, the BNSF railroad tracts, and extensive industrial development. I
have found that public facilities and services — e.g., water and sewer -- are not available to the
exception area but that there is sufficient private infrastructure in place to support the level of
"urban" uses that predominate at Deschutes Junction and that could be developed on the
subject property with RI zoning.
(5)
More detailed findings and reasons must be provided to
demonstrate that land is committed to urban development
than would be required if the land is currently built upon at
urban densities.
FINDINGS: The Hearings Officer finding the detailed findings and reasons set forth in the
findings above in support of the proposed exception demonstrate the subject site is irrevocably
committed to urban development. The applicant also notes that the subject property, of which
the proposed exception area is a part, already is built with industrial uses.
For the foregoing reasons, and with imposition of the condition of approval described above, the
Hearings Officer finds the applicant's proposed exception complies with the criteria in this rule.
3. Division 14, Application of the Statewide Planning Goals to Newly Incorporated
Cities, Annexation, and Urban Development on Rural Lands
Powell/Ramsey, PA -14-2, ZC-14-2 Page 46 of 47
a. OAR 660-014-0040, Establishment of New Urban Development on
Undeveloped Rural Lands
(1) As used in this rule, "undeveloped rural land" includes all
land outside of acknowledged urban growth boundaries
except for rural areas committed to urban development. This
definition includes all resource and nonresource lands
outside of urban growth boundaries. It also includes those
lands subject to built and committed exceptions to Goals 3 or
4 but not developed at urban density or committed to urban
level development.
FINDINGS: The applicant argues its proposal is not subject to this administrative rule because it
is not for new urban development on "undeveloped rural land" since the subject site is
committed to urban development. The Hearings Officer agrees. Based on the detailed reasons
set forth in the findings above, I have found the applicant has demonstrated the subject site is
"irrevocably committed" to urban development. Moreover, as also discussed in the findings
above, I have found the applicant did not demonstrate it is entitled to a "reasons" exception to
Goal 14. Therefore I find this rule is not applicable to the applicant's proposal.
IV. DECISION:
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby
APPROVES the applicant's proposed plan amendment from Agriculture to Rural Exception
Area, zone change from EFU-TRB to RI, and "irrevocably committed" exception to Goal 14, for
the subject site, SUBJECT TO THE FOLLOWING CONDITIONS OF APPROVAL:
1. This approval is based upon the applicant's submitted burdens of proof, supplemental
materials, and written and oral testimony. Any substantial change to the approved plan
amendment, zone change, and goal exception will require new land use application(s)
and approval(s).
2. Prior to the public hearing on the plan amendment, zone change and goal exception
before the Board of Commissioners, the applicant/owner shall submit to the Planning
Division a metes -and -bounds description of the subject site to be re -designated and
rezoned.
3. The applicant/owner shall limit RI Zone development on the subject site to no more than
three 7,500 -square -foot buildings and to limit traffic impacts from the development to no
more than 86 (eighty-six) new p.m. peak hour vehicle trips.
Dated this 15th day of October, 2014.
Karen H. Green, Hearings Officer
Mailed this 16th day of October, 2014.
Powell/Ramsey, PA -14-2, ZC-14-2 Page 47 of 47
Community Development Department
Planning Division Building Safety Division Environmental Soils Division
P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
CERTIFICATE OF MAILING
FILE NUMBERS: ZC-14-2 and PA -14-2
DOCUMENT/S MAILED: Hearings Officer's Decision
LOOKUP AREA: 750 Feet
MAP/TAX LOT NUMBER: 16-12-26C Tax Lot 107
I certify that on the 16th day of October, 2014, the attached notice(s)/report(s), dated
October 16, 2014, was/were mailed by first class mail, postage prepaid, to the person(s) and
address(es) set forth on the attached list.
Dated this 16th day of October, 2014.
COMMUNITY DEVELOPMENT DEPARTMENT
By: Sher Buckner
Claudia Powell, Trustee
Frances Ramsey Trust
c/o Bryant Lovlien & Jarvis, PC
591 SW Mill View Way
Bend, OR 97702
Sharon R. Smith
Bryant Lovlien & Jarvis PC
591 SW Mill View Way
Bend, OR 97702
Hearings Officer Karen Green
Quality Services Performed with Pride