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Zechariah Heck
From: Carol Macbeth <[email protected]>Sent: Monday, November 18, 2019 10:31 AMTo: Zechariah HeckCc: Paul Dewey; Scott Hilgenberg; Rory IsbellSubject: Re: Comments for Deschutes BOCC Public hearing on Non-Resource Lands ProposalAttachments: DLCD to Deschutes County 2015.pdf; LandWatch May nonprime resource
comments.pdf; LandWatch November nonprime resource comments.pdf
[EXTERNAL EMAIL]
HI Zecharia, Please find attached our comments for today's hearing, with our May 23, 2019 comments and DLCD's 2015 letter attached and incorporated by reference. I am submitting these into the record today at the hearing. Best, Carol Macbeth Le lun. 18 nov. 2019 à 09:36, Scott Hilgenberg <[email protected]> a écrit : Hi Zechariah: Please find attached comments submitted on behalf of 1000 Friends of Oregon to be added to the public record for the Non-Resource Lands Proposal/ proposed ordinance 2019-007. We request that the county leave the record open for at least seven (7) additional days, and allow for at least an additional seven (7) days to provide response testimony and evidence. Thank you for the opportunity to comment on this important issue. Please confirm receipt of the attached comments. I am available for any questions or concerns. Thank you. Scott Hilgenberg Rural Lands Legislative Attorney 1000 Friends of Oregon 503.497.1000 x139 Pronouns: he/him
Support a beautiful, bountiful Oregon for generations to come...join us today!
-- Carol Macbeth Staff Attorney
Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities
2843 NW Lolo Dr., Ste. 200 | Bend, OR 97703
Phone: (541) 647-2930
www.colw.org
November 18, 2019
Deschutes County Board of Commissioners
1300 NW Wall Street
Bend, OR 97701
via hand delivery
re: File No. 247-19-000265-PA
Amendments to comprehensive plan to change the development allowed on
certain agricultural and forest lands
Dear Chair Henderson and Commissioners,
On behalf of Central Oregon LandWatch, thank you for the opportunity to offer
additional comments on the proposed amendments. Please find attached our May 23,
2019 letter on the same topic. Please also find attached DLCD's January 8, 2015 letter to
the County. We incorporate both letters here by reference. LandWatch respectfully urges
you to reject the proposed amendments, which contravene the statewide planning goals.
The statewide planning goals are mandatory and binding on Deschutes County. ORS
197.015(8).
The current comprehensive plan has been acknowledged by LCDC to be in
compliance with the statewide planning goals. Before the plan can be amended, the
County must demonstrate that the amendments, too, will be in compliance with the
statewide planning goals. ORS 197.175(2)(a):
"ORS 197.175(2) Pursuant to ORS chapters 195, 196 and 197, each city and
county in this state shall:
(a) Prepare, adopt, amend and revise comprehensive plans in compliance
with goals approved by the commission;".
The land use goals are designed to be applied during a local government's
preparation or amendment of a comprehensive plan. 1000 Friends v. Wasco County
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Court, 299 Or 344, 359, 703 P. 2d 207 (1985). The findings do not demonstrate that the
amendments comply with Goal 3 or Goal 4, which both apply directly to the proposed
amendment. ORS 197.175(2)(a). The statewide planning goals that apply to the adoption
or amendment of a comprehensive plan are applicable "because of the use or the nature of
the land to be included." 1000 Friends v. Wasco County Court, 299 Or 344, 366, 703 P.
2d 207 (1985) (the full range of affected public interests must be considered in the
process of comprehensive planning for land use decisions, taking into account the nature
and use of land and the policies of the goal); 1000 Friends v. LCDC, 292 Or 735, 750,
642 P.2d 1158 (1982) (en banc).
The six areas under consideration are resource lands. See Exhibit F: Meadow
Crest Acres (F1); Squaw Creek Canyon Recreational Estates (F2, EFU); Haner Park
(F2); Skyline Subdivision (F2); Skyline Subdivision 1st Addition (F2); Section 36 (F2).
The nature and use of the six areas is that they are forest lands preserved and maintained
by the County for forest use, or agricultural lands preserved and maintained by the
County for exclusive farm use. Because of the nature and use of the six areas, any
amendment to the County's comprehensive plan must demonstrate that the amendment
complies with Goals 3 and 4. 1000 Friends v. Wasco County Court, 299 Or at 366.
The amendment engages in circular reasoning by inventing a category of land
called "nonprime resource land," declaring this category is not subject to Goals 3 or 4,
and then declaring that the County need not demonstrate compliance with Goals 3 or 4
because the lands in the category are not subject to Goals 3 or 4. Exhibit F. The problem
with this approach is that the six areas of land put forward in the proposal are forest lands
and agricultural lands, preserved and maintained by the County in accordance with state
law for forest use and exclusive farm use. They are not "nonprime resource lands:" there
is no such thing as nonprime resource lands. The set of nonprime resource lands is an
empty set. It is the nature and use of the lands under consideration, not the attributes of an
imaginary category of lands, that determines whether statewide planning goals are
applicable.
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The County is proposing to permit new uses on certain of the County's forest and
agricultural lands, including allowing single family dwellings and accessory uses
outright. Exhibit F, e.g. Table 2. The exclusive means of establishing a policy that does
not comply with some or all of the statewide planning goals is through the adoption of an
exception to those goals. An exception to Goal 3 is required in order to avoid Goal 3's
restrictions on the use of agricultural land, while an exception to Goal 4 is required to
avoid that goal's restrictions on the use of forest land. OAR 660–004–0010. As the
Supreme Court has explained:
"In order to allow land use which any goal would prohibit, a local
government must take an 'exception' to that goal. ... An 'exception' is essentially a
variance, a comprehensive plan provision which allows a local government to
waive compliance with a goal for specific properties or situations."
1000 Friends of Oregon v. LCDC, 301 Or 447, 457, 724 P. 2d 268 (1986) (en banc).
The sole means for taking an exception is through ORS 197.732 and Goal 2:
"A local government which decides to take an exception must use the
procedures and the substantive standards that are provided in ORS 197.732, as
interpreted by LCDC's amended Goal 2 and administrative rules in OAR chapter
660."
Id. at 459.
The proposal errs by referring to the six areas as "committed to residential uses."
Exhibit F, Tables 1 & 2. The County has not shown that the lands satisfy the criteria for
commitment to that use.
The proposal erroneously states that the County is merely "adopting goals and
policies to formally recognize 'NPR' lands." Exhibit F. The County is not merely
adopting goals and policies to "recognize" lands in its proposed new category: the
proposal also declares that lands the County affirmatively identified and maintains as
forest lands and agricultural lands are not forest lands or agricultural lands. There is no
proof that the County's resource lands were incorrectly mapped at acknowledgement. If
the County wants to permit new uses on these six areas of resource lands, the County
must demonstrate that the properties qualify for exceptions to the resource goals. If the
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County wants to redesignate its resource lands, the sole method for doing so is under
ORS 215.788 et seq..
Thank you for your attention to these views. Please consider this a formal request
for written notification of any decision in this matter.
Sincerely,
Carol Macbeth
Staff Attorney
Central Oregon LandWatch
Protecting Central Oregon’s Natural Environment And Working For Sustainable Communities
50 SW Bond St., Ste. 4 | Bend, OR 97702 Phone: (541) 647-2930
www.colw.org
May 23, 2019 Deschutes County Planning Commission Attn: Zechariah Heck, Associate Planner 117 NW Lafayette Avenue Bend, OR 97708 Re: Nonprime Resource Lands Amendments Dear Chair Crawford and Commissioners,
Central Oregon LandWatch (“LandWatch”) respectfully submits these comments in
opposition to the proposed “Nonprime Resource Lands Amendments” (the “amendments”). The
amendments are not needed and are not legal for many reasons, which we outline below.
1. No demonstrated need for the amendments exists.
The proposed amendments seek to facilitate additional residential development on land
designated Agriculture and Forest throughout the County. No need exists for these amendments
because Deschutes County is not struggling to accommodate rural residential growth. The most
recent Oregon Farm & Forest Report, which is published every two years by the Oregon Department
of Land Conservation and Development, shows that Deschutes County approved more dwellings on
farmland than all but one other county during 2016 and 2017. Exhibit 5, page 7. Between 1994 and
2017, Deschutes County again ranks second in the state for dwelling approvals on farmland, and
approved more nonfarm dwellings (830) than any other county. The County’s 830 nonfarm
dwelling approvals is 59% more than the County with the next closest number of approvals (488 in
Douglas County).
Four decades ago, the County correctly identified its resource lands. With its lands
categorized as they are, Deschutes County is consistently ranked as one of the fastest growing
counties in the U.S. Deschutes County is currently the fourth fastest-growing county in the U.S.
according to the U.S. Census Bureau. Deschutes County's phenomenal growth rate is attributable in
part to the high quality of life associated with the County's protection of its rural farm, forest, and
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ranch lands, all of which provide critical wildlife habitat. Protection of its resource lands and
wildlife habitat sets Deschutes County apart and attracts new residents from all over the country.
In the 1970s, Yamhill County argued that the soils of the Dundee Hills were too shallow and
rocky for agriculture and tried to rezone them for housing. Because Yamhill County preserved its
resource lands and did not cover them with sprawl, when David Lett had the idea to grow Pinot Noir
in the Dundee Hills, Yamhill County had the land available to become one of the premier grape
growing regions in the world comparable only to Bordeaux and Burgundy, and the center of
Oregon's $800 million dollar wine industry. Protection of rural resource lands in perpetuity is
necessary to preserve such economic opportunities.
As explained below in “3. The 2014/2015 project established that Deschutes County’s lands
are correctly designated,” the county's resource lands are correctly identified and designated in the
comprehensive plan. When the County considered the designation of its resource only a few years
ago, the County, with significant public input, determined not to pursue rezoning of its resource
lands.
2. No statutory or administrative authority exists for a “Nonprime Resource Lands” plan
designation.
The proposed amendments seek to create a new plan designation called “Nonprime Resource
Lands.” The proposed amendments define the designation in reference to a definition in the Oregon
Administrative Rules (OAR):
“To recognize lands defined in OAR 660-004-005(3) that cannot qualify for an exception pursuant to applicable planning law and fail to satisfy the definitions of agricultural or forest lands contained in the Statewide Planning Goals, Oregon Revised Statutes and implementing administrative rules.” (Exhibit B – PC Meeting Packet May 23, Packet Pg. 28)
The referenced OAR, in turn, defines “Nonresource Land” as
“land not subject to any of the statewide goals listed in OAR 660-004-0010(1)(a) through (g) except subsections (c) and (d). Nothing in these definitions is meant to imply that other goals, particularly Goal 5, do not apply to nonresource land.” (OAR 660-004-0005(3))
The “statewide goals” that nonresource land is “not subject to” referenced in this rule are Goal 3,
Goal 4, and the coastal Goals 16-18.
The division (Division 4) of Chapter 660 of the OARs to which this definition applies is
titled “Interpretation of Goal 2 Exception Process.” The definitions provided in the beginning of
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Division 4 at OAR 660-004-0005, which includes the definition of “Nonresource Land” quoted
above, are prefaced by this qualifier:
“For the purpose of this division, the definitions in ORS 197.015 and the Statewide Planning Goals shall apply. In addition, the following definitions shall apply[.]”
Rather than authorize a distinct plan designation, the definition of “Nonresource Land” simply
distinguishes resource land, which is subject to Goal 3 and Goal 4, from other plan designations for
land that is not subject to Goal 3 and Goal 4 for the limited purposes of interpreting OAR Division
4’s rules related to goal exceptions. Because goal exceptions to Goals 3 and 4 are not required when
land is not subject to Goals 3 and 4, OAR Chapter 660 Division 004 simply adopts the phrase
“Nonresource Land” to make the distinction. Examples of land not subject to Goals 3 and 4 is land
inside an urban growth boundary, or land in a rural residential exception area that contains
development that predates Oregon land use law. These lands are labeled “Nonresource Lands” for
purposes of interpreting the OARs relating to the Goal 2 Exception Process.
The next section in Division 4 is entitled “Application of the Goal 2 Exception Process to
Certain Goals.” OAR 660-004-0010. This rule explains how the Goal 2 exception process applies
to Goals 3 and 4:
“(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 that prescribe or restrict certain uses of resource land, restrict urban uses on rural 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 allowed in an exclusive farm use (EFU) zone under ORS chapter 215 and OAR chapter 660, division 33, ‘Agricultural Lands’, except as provided under OAR 660-004-0022 regarding a use authorized by a statewide planning goal that cannot comply with the approval standards for that type of use; (b) Goal 4 ‘Forest Lands’; however, an exception to Goal 4 ‘Forest Lands’ is not required for any of the forest or nonforest uses allowed in a forest or mixed farm/forest zone under OAR chapter 660, division 6, ‘Forest Lands’[.]” (OAR 660-004-0010(1)(a)-(b))
In order to allow uses on lands acknowledged to be subject to Goals 3 and 4 via the exceptions
process outlined in Division 4, exceptions to those goals must be taken. The OARs, whether in
Division 4 or elsewhere, provide no process for redesignating resource lands to “nonresource” lands
as a means of avoiding the exceptions process. The definition of “nonresource” lands in OAR
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Division 4 simply differentiates between lands subject to one or more of Goals 3, 4, 16, 17, and 18
and lands not subject to any one of those goals. Again, an example of this type of land in Deschutes
County is land designated Rural Residential Exception Area. Land with this plan designation is not
subject to Goals 3 or 4 because exceptions to those goals have been taken.1 The “nonresource”
definition does not authorize a plan designation, but simply allows distinction between resource land
and land where exceptions to the resource goals have been taken.
3. The 2014/2015 project established that Deschutes County’s lands are correctly
designated. Not long ago, in 2014/2015, the County considered a very similar project to amend the
comprehensive plan to create a new nonresource plan designation. The County sought input from
residents throughout the County and compiled what was heard in a report called “Agricultural Lands
Program Community Involvement Report.” Exhibit 1.
The 2014/2015 project also sought to redesignate lots in several rural subdivisions. At the
Planning Commission’s request, the County researched the history of the County’s Agriculture and
Forest plan designations to see if any lands in the County, including in the several rural subdivisions,
are mistakenly designated. To do this, the County consulted with Jon Andersen, who was a Senior
Planner, and later became the Community Development Department Director, when the County
developed its first comprehensive plan. The County’s conversation with Jon Andersen resulted in a
summary memo, which paraphrases Jon Andersen’s response to a question about how six rural
subdivisions received EFU or Forest plan designations:
“Too many years have passed for me to remember specific subdivisions, however, in general, pre-platted subdivisions, lacking development, utilities, or infrastructure were deemed to be vacant and therefore suitable for agriculture uses, based on direction from the State. The County was also required to protect the land for wildlife and open space values, as well as to direct development into areas that could be more efficiently served, thereby reducing required taxation.” Exhibit 2 (John Andersen Phone Conversation / Notes January 15, 2015).
That vacant rural subdivisions were purposely, and not mistakenly, designated EFU or Forest is
confirmed by extensive discussion between County staff and the Planning Commission during the
1 In limited instances, lands have been designated to Rural Residential Exception Area by demonstrating that the land does not meet the definition of Goal 3 or 4 rather than taking an exception to those goals. See “5. Existing Rural Residential Exception Area process” below.
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Planning Commission meeting of February 26, 2015. Exhibit 3 (June 26, 2015 Deschutes County
Planning Commission meeting transcript).
The County also received a letter from DLCD commenting on its proposed 2014/2015
amendments. That letter concluded that considering a handful of subdivisions in isolation for
redesignation would not comply with state law:
“…[C]ounties are not authorized to (1) set up a framework in the comprehensive plan and then require individual applications for re-designation of land or (2) pick and choose small areas to review. While we do not find that the county must review all land in the county, we would be most inclined to approve a work program that includes some major region defined by geographic characteristics rather than by property or subdivision boundaries. Additionally, the county may not pre-determine specific areas for review, as subsection 5(3) requires the county to provide an opportunity for all farm and forest land to be considered. If the county receives a request to review an area that is not included in the original proposal, the county must review it. As explained above, we believe that this area must be a geographic area of the county and not individual properties or subdivisions.” (Exhibit 4 (January 8, 2015 DLCD letter.))
The letter from DLCD also explains how the County did not make the required demonstration that
areas of the County are incorrectly zoned:
“[The] department has been unable to determine the nature and scope of the mapping error the county intends to address. It is not apparent why the areas the county has shared with the department were incorrectly zoned at acknowledgment[.]” (Exhibit 4 (January 8, 2015 DLCD letter.))
Because the County found no errors in its designation of EFU and Forest lands in 2014/2015,
no nonresource plan amendments were pursued. The same facts and law are present today in 2019,
and the same decision should be reached.
4. The proposed amendments require a demonstration of compliance with Goal 3 and
Goal 4.
The draft findings for the proposed amendments state Goal 3 and Goal 4 are not applicable:
“Goal 3, Agricultural Lands and Goal 4, Forest Lands are not applicable because NPR Lands defined in OAR 660-004-005(3) are not subject to Goal 3, Agricultural Land and Goal 4, Forest Land.” (Exhibit F to Ordinance 2019-007; PC meeting packet page 70) Actually, all of the Goals, and especially Goal 3 and Goal 4, are applicable to these
amendments. All post-acknowledgement plan amendments must demonstrate compliance with all of
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the statewide land use planning goals. ORS 197.175(2)(a) (“Pursuant to ORS chapters 195, 196 and
197, each city and county in this state shall […] [p]repare, adopt, amend and revise comprehensive
plans in compliance with goals approved by the commission[.]”).
Goal 3’s definition of agricultural lands, at OAR 660-033-0020(1), includes many factors
that contribute to whether land is agricultural land:
“(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 I-IV soils in Western Oregon and I-VI soils in Eastern Oregon; (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 (C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands. (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[.]” (OAR 660-033-0020(1)) Similarly, Goal 4’s definition of forest lands also includes several factors:
“[L]ands which are suitable for commercial forest uses including adjacent or nearby lands which are necessary to permit forest operations or practices and other forested lands that maintain soil, air, water and fish and wildlife resources.” (Goal 4)
For amendments to a County’s forest lands, OAR 660-006-0010 imposes a specific process for
identifying forest lands:
“(2) Where a plan amendment is proposed: (a) Lands suitable for commercial forest uses shall be identified using a mapping of average annual wood production capability by cubic foot per acre (cf/ac) as reported by the USDA Natural Resources Conservation Service. Where NRCS data are not available or are shown to be inaccurate, other site productivity data may be used to identify forest land, in the following order of priority:
(A) Oregon Department of Revenue western Oregon site class maps; (B) USDA Forest Service plant association guides; or (C) Other information determined by the State Forester to be of comparable quality.
(b) Where data of comparable quality under paragraphs (2)(a)(A) through (C) are not available or are shown to be inaccurate, an alternative method for determining productivity may be used as described in the Oregon Department of Forestry’s Technical Bulletin entitled “Land Use Planning Notes, Number 3 April 1998, Updated for Clarity April 2010.” (c) Counties shall identify forest lands that maintain soil air, water and fish and wildlife resources.” (OAR 660-005-0010(2))
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The stated purpose of the amendments is to provide a process to redesignate lands currently
subject to Goal 3 and Goal 4. The amendments would significantly alter the County’s
comprehensive plan policies regarding lands protected by Goal 3 and Goal 4 – likely moreso than
any other project Deschutes County has undertaken in recent decades. Accordingly, the County
must demonstrate compliance with Goal 3 and Goal 4 for both the proposed NPR-10 and NPR-20
plan designations using the above-quoted definitions and regulations relating to identification of
agricultural land and forest land.
The only way to show compliance with Goal 3 and Goal 4 for the proposed NPR-20 plan
designation is to identify which properties would be eligible for the NPR-20 plan designation.
Currently, the proposed amendments fail to identify which lands would be eligible. As such, it is
impossible for the County to demonstrate compliance with Goals 3 and 4 (and other goals). The
only way for the County to make the required showing of compliance with the goals is to produce a
map showing which properties it believes are eligible for the proposed NPR-20 zone, and to
demonstrate compliance with Goal 3 and Goal 4 for each of those properties.
5. The County already has a process to redesignate property to Rural Residential
Exception Area.
As recognized in the proposed amendments, the County already has a process for
redesignating lands from Agriculture or Forest to another plan designation. May 16, 2019 Staff
Memo, page 2; PC meeting packet page 5 (stating that since 2007, six properties in Deschutes
County have been redesignated to Rural Residential Exception Area). As this process already exists,
and the County historically has not struggled to accommodate rural residential growth at a rate
higher than almost all other Oregon counties, the County has no need for an additional process to
facilitate rural residential growth.
If the County is concerned about the cost to landowners in redesignating their property under
the current process, then LandWatch suggests the County lower its application fees. This solution
would be monumentally less complicated than the current proposed amendments.
6. The County should wait for an outcome to the similar effort by Douglas County.
Beginning in 2017, Douglas County has pursued a project to redesignate many of its
farmlands and forest lands, and adopted a final decision in late 2018. The decision adopts a new
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nonresource comprehensive plan designation that allows for a 20-acre minimum parcel size. It also
adopts a map that shows which lands in the county are eligible for the new plan designation. As part
of its decision, Douglas County mapped and analyzed all parcels in the county and, using criteria
chosen by the county, produced a map showing which lands the county believes should be removed
from Goal 3 and Goal 4 protections and redesignated to the new plan designation.
Differing from Deschutes County’s proposed amendments, Douglas County at least
identified and mapped the farmlands and forest lands it proposes to be eligible for redesignation.
Even so, Douglas County’s decision has been appealed to LUBA by four petitioners: Friends of
Douglas County, 1000 Friends of Oregon, the Oregon Department of Land Conservation and
Development, and the Oregon Department of Fish and Wildlife. Those appeals are currently
pending.
At a minimum, Deschutes County should wait until the legal issues involved in the Douglas
County case are resolved before pursuing the proposed amendments. Not doing so is an unwise use
of staff time, Planning Commission time, and the public’s time and resources.
7. The proposed amendments must adhere to the process specified in ORS 215.788 et. seq.
Only one means of redesignating resource lands exists in state law, and it is found at ORS
215.788 through ORS 215.794. In 2009, the Oregon legislature adopted HB 2229, which was the
outcome of the “Big Look,” a process to create more opportunities for regional flexibility in the
administration of the statewide land use system. The legislation created ORS 215.788, a statute
which is titled “Reacknowledgement process”:
“(1) For the purposes of correcting mapping errors made in the acknowledgment process and updating the designation of farmlands and forestlands for land use planning, a county may conduct a legislative review of lands in the county to determine whether the lands planned and zoned for farm use, forest use or mixed farm and forest use are consistent with the definitions of “agricultural lands” or “forest lands” in goals relating to agricultural lands or forestlands. (2) A county may undertake the reacknowledgment process authorized by this section only if the Department of Land Conservation and Development approves a work plan, from the county, describing the expected scope of reacknowledgment. The department may condition approval of a work plan for reacknowledgment under this section to reflect the resources needed to complete the review required by ORS 197.659 and 215.794. The work plan of the county and the approval of the department are not final orders for purposes of review. (3) A county that undertakes the reacknowledgment process authorized by this section shall provide an opportunity for all lands planned for farm use, forest use or mixed
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farm and forest use and all lands subject to an exception under ORS 197.732 to a goal relating to agricultural lands or forestlands to be included in the review. (4) A county must plan and zone land reviewed under this section:
(a) For farm use if the land meets the definition of “agricultural land” in a goal relating to agricultural lands; (b) For forest use if the land meets the definition of “forest land” used for comprehensive plan amendments in the goal relating to forestlands; (c) For mixed farm and forest use if the land meets both definitions; (d) For nonresource use, consistent with ORS 215.794, if the land does not meet either definition; or (e) For a use other than farm use or forest use as provided in a goal relating to land use planning process and policy framework and subject to an exception to the appropriate goals under ORS 197.732 (2).
(5) A county may consider the current land use pattern on adjacent and nearby lands in determining whether land meets the appropriate definition.” (ORS 215.788) (emphasis added)
The very first words of this statute clarify that an update to a county’s designation of farm and forest
lands may only be pursued for the purpose of correcting mapping errors. The statute’s subsection
(1) specifies that the definitions of agricultural lands and forest lands in the goals are the sole
authority for review of any mapping errors. Further, subsection (3) requires that a county consider
all farm, forest, and exception lands in the county, and not any subset of lands in isolation.
8. Goal 5.
The proposed amendments, at Policy 3.11.3(c), require that a property must demonstrate that
“[i]t does not contain Goal 5 natural resources” in order to be eligible for the proposed Nonprime
Resource Lands plan designation. The County’s many programs to achieve Goal 5 for its many
significant Goal 5 resources, however, are not limited to specific Goal 5 natural resource sites.
For example, the County’s inventoried riparian corridors and wetlands are significant Goal 5
resources. The county’s program to achieve Goal 5 for these resources includes the 80-acre
minimum lot size of the County’s Agriculture and Forest plan designations. The proposed
amendments would allow for a 20-acre minimum lot size on lands currently designated Agriculture
or Forest.
As such, the proposed amendments create a new conflicting use for which a full application
of Goal 5 is required. OAR 660-023-0040. The County must make a full showing of compliance
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with Goal 5, including a programmatic analysis of the economic, social, environmental, and energy
(ESEE) consequences of a decision to allow a new conflicting use.
Further, a more direct contravention of Goal 5 is found in proposed comprehensive plan
Policy 3.11.15:
“Notwithstanding Policy 3.11.3.c, lands committed to residential uses with significant Goal 5 natural resources are eligible for a Nonprime Resource Lands-10 zone subject to an ESEE analysis.”
This policy would allow new conflicting uses on properties containing significant Goal 5 resources.
Site-specific ESEE analyses for these properties are not adequate, as the proposed amendments seek
to redesignate several dozen properties to the proposed NPR-10 zone. A programmatic application
of Goal 5 that accounts for all of the new conflicting uses that the amendments would create with
inventoried significant Goal 5 resources is required.
9. Goals 11 and 12.
The proposed amendments would allow a significant increase in residential development in
the rural County. This increase in development would require significant expansion of public
facilities, including water, sewer, police, fire, and school facilities and service. Goal 11 requires the
County to “plan and develop a timely, orderly and efficient arrangement of public facilities and
services to serve as a framework for urban and rural development.” The proposed findings for Goal
11 incorrectly state that “[n]o development or land use changes are being proposed that impact
public facilities.” Exhibit F to Ordinance 2019-007, page 10. The proposed post-acknowledgment
plan amendment, and not any potential future legislative or quasi-judicial amendments, must
demonstrate compliance with Goal 11. ORS 197.125(2)(a).
The proposed amendments would bring similar impacts to County transportation facilities.
Both the proposed NPR-10 and NPR-20 would cause additional traffic on County roads. Goal 12
and its implementing rules at OAR 660-012-0060 require the County to impose certain measures if a
plan amendment will significantly affect the County’s transportation facilities. Again, the proposed
post-acknowledgment plan amendment, and not any potential future legislative or quasi-judicial
amendments, must demonstrate compliance with Goal 12. ORS 197.125(2)(a).
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For all of these reasons, LandWatch urges to Planning Commission to recommend denial of
the proposed amendments. Thank you for your consideration of these comments.
Sincerely, Rory Isbell Staff Attorney Central Oregon LandWatch 50 SW Bond St., Ste. 4 | Bend, OR 97702 Phone: (541) 647-2930 www.colw.org
Attachments: Exhibit 1: Deschutes County Agricultural Lands Program Community Involvement Results,
June 18, 2014 Exhibit 2: John Andersen Phone Conversation / Notes, January 15, 2015 Exhibit 3: Excerpted transcript or Deschutes County Planning Commission meeting, February
26, 2015 Exhibit 4: Letter from DLCD, January 8, 2015 Exhibit 5: 2016 – 2017 Oregon Farm & Forest Report, January 25, 2019
Oregon John A. Kitzhaber, M.D., Governor
Department of Land Conservation and Development 635 Capitol Street NE, Suite 150
Salem, Oregon 97301-2540
Phone: (503) 373-0050
Fax: (503) 378-5518
www.oregon.gov/LCD
January 8, 2015
Deschutes County Planning Commission SENT VIA E-MAIL
c/o Nick Lelack, Community Development Director
117 NW Lafayette Avenue
Bend, Oregon 97701
RE: HB 2229 question regarding scope of review
Deschutes County planning staff has requested the opinion of the Department of Land
Conservation and Development (the department) on whether HB 2229 requires all, or most,
farm- or forest-zoned lands in a county to be considered in a “reacknowledgment” process, or
whether smaller, non-contiguous tracts could be considered as the first phase of a multi-phase
reacknowledgment process.
County staff described several non-contiguous problem areas. The county stated that its goal was
“for partially platted subdivisions zoned for EFU or Forest to be legislatively rezoned to MUA-
10.” Department staff consulted with county staff on these areas, and studied maps of five of the
areas and past county attempts to find solutions. The total acreage of these areas equals about
840 acres.
Analysis
HB 2229 is memorialized at Chapter 873 Oregon Laws 2009. The relating clause “Relating to
recommendations of the Oregon Task Force on Land Use Planning…” gives an indication that
certain themes in the bill originated with “The Big Look.” A theme that wound through the Big
Look was that land use laws should treat different regions of the state fairly, recognizing the
geographical, ecological and cultural aspects of each region. Section 2(B) of HB 2229, for
example, directs that the Land Conservation and Development Commission to “consider the
variation in conditions and needs in different regions of the state and encourage regional
approaches to resolve land use problems.”
For this discussion, section 5 of HB 2229 is applicable. A portion of section 5 is provided below.
SECTION 5. (1) For the purposes of correcting mapping errors made in the
acknowledgment process and updating the designation of farmlands and
forestlands for land use planning, a county may conduct a legislative review of
lands in the county to determine whether the lands planned and zoned for farm
use, forest use or mixed farm and forest use are consistent with the definitions of
“agricultural lands” or “forest lands” in goals relating to agricultural lands or
forestlands.
Deschutes County Planning Commission Page 2 of 3
January 8, 2015
(2) A county may undertake the reacknowledgment process authorized by
this section only if the Department of Land Conservation and Development
approves a work plan, from the county, describing the expected scope of
reacknowledgment. The department may condition approval of a work plan for
reacknowledgment under this section to reflect the resources needed to complete
the review required by sections 7 and 13 of this 2009 Act. The work plan of the
county and the approval of the department are not final orders for purposes of
review. (3) A county that undertakes the reacknowledgment process authorized by
this section shall provide an opportunity for all lands planned for farm use, forest
use or mixed farm and forest use and all lands subject to an exception under ORS
197.732 to a goal relating to agricultural lands or forestlands to be included in the
review.
This states that the county may undertake a “reacknowledgement” process by conducting a
legislative review for the purpose of correcting mapping errors made during its original
acknowledgment. Determining whether a proposal is a “legislative review” requires
consideration of three questions:
1. Is the process bound to result in a decision?
2. Is the decision bound to apply preexisting criteria to concrete facts?
3. Is the action directed at a closely circumscribed factual situation or a relatively small
number of persons?
This is not a “bright line” test. The more definitively these questions are answered in the
negative, the more likely the process is legislative. In this case, the answer to question 1 is
clearly no. Regarding question 2, the project would be subject to existing criteria in (at least)
Goals 3 and 4 and HB 2229; it is typical for goals and statutes to apply to local legislative
decisions, however, so this is not determinative but it does lend additional weight to question 3.
Regarding question 3, the department is uncomfortable determining that the county is proposing
a legislative review when it includes only 840 acres in five areas. We don’t know the number of
“persons” it would be directed at, but the number can’t be very large.
Section 5 states the review is of “lands in the county” and that the county must provide an
opportunity for all lands in a resource zone to be provided an opportunity for consideration.
While the phrase “lands in the county” is not entirely clear, the department’s understanding of
the legislative intent is that the reference to “lands in the county,” when combined with the
“legislative review” language, is that counties are not authorized to (1) set up a framework in the
comprehensive plan and then require individual applications for re-designation of land or (2)
pick and choose small areas to review. While we do not find that the county must review all land
in the county, we would be most inclined to approve a work program that includes some major
region defined by geographic characteristics rather than by property or subdivision boundaries.
Additionally, the county may not pre-determine specific areas for review, as subsection 5(3)
requires the county to provide an opportunity for all farm and forest land to be considered. If the
Deschutes County Planning Commission Page 3 of 3
January 8, 2015
county receives a request to review an area that is not included in the original proposal, the
county must review it. As explained above, we believe that this area must be a geographic area
of the county and not individual properties or subdivisions.
Regarding phasing of review, the department would entertain a work program that lays out the
project in pieces, but those pieces should each address a substantial part of the county and
address all the other requirements of HB 2229.
Additional Consideration
Considering other aspects of HB 2229 not related to your question, the department has been
unable to determine the nature and scope of the mapping error the county intends to address. It is
not apparent why the areas the county has shared with the department were incorrectly zoned at
acknowledgment, and this is a fundamental aspect of the bill. If the county chooses to move
forward with a work program, the county will need to demonstrate that the HB 2229 process is
an appropriate vehicle for addressing the county’s needs.
Summary
The department does not read HB 2229 to require the county review all farm and forest lands in
the county under the provisions of section 5 of the law. On the other hand, we do not find that it
permits the county to look only at small areas defined by existing subdivisions, but instead
requires a review of a substantial part of the county.
We look forward to working with Deschutes County as it considers whether to submit a work
program for a project to correct mapping errors in its rural zones under HB 2229. We hope this
adequately answers your question, but we are available for further consultation if it does not.
Sincerely,
Rob Hallyburton
Community Services Division Manager
cc: Scott Edelman, Regional Representative
Jon Jinings, Community Services Specialist
Michael Morrissey, Rural Policy Analyst
1
Zechariah Heck
From: Scott Hilgenberg <[email protected]>Sent: Monday, November 18, 2019 9:36 AMTo: Zechariah HeckCc: Rory Isbell; Carol MacbethSubject: Comments for Deschutes BOCC Public hearing on Non-Resource Lands ProposalAttachments: 11.18.19.nonresourcedeschutes.1000Friends.final.pdf
[EXTERNAL EMAIL]
Hi Zechariah: Please find attached comments submitted on behalf of 1000 Friends of Oregon to be added to the public record for the Non-Resource Lands Proposal/ proposed ordinance 2019-007. We request that the county leave the record open for at least seven (7) additional days, and allow for at least an additional seven (7) days to provide response testimony and evidence. Thank you for the opportunity to comment on this important issue. Please confirm receipt of the attached comments. I am available for any questions or concerns. Thank you. Scott Hilgenberg Rural Lands Legislative Attorney 1000 Friends of Oregon 503.497.1000 x139 Pronouns: he/him
Support a beautiful, bountiful Oregon for generations to come...join us today!
133 SW 2nd Avenue, Suite 201 • Portland, OR 97204 • (503) 497-1000 • www.friends.org
November 18, 2019
SENT VIA EMAIL
Deschutes County Board of Commissioners
Deschutes Services Building
1300 NW Wall Street, 2nd Floor
Bend, OR 97703
Re: Comments in support of Denial of the Proposed Comprehensive Plan
Amendments that Seek to Allow the Removal of Lands from State-Mandated
Resource Protection
To the Deschutes County Board of Commissioners:
Please accept these comments to be included in the record for the Deschutes County Board of
Commissioners’ public hearing on November 18, 2019 regarding proposed Ordinance No. 2019-
007. This letter also incorporates and applies all arguments to the current proposal that were
presented by 1000 Friends of Oregon and Central Oregon Landwatch (“COLW”) in testimony
provided on May 23, 2019, June 13, 2019, and June 24, 2019.
1000 Friends of Oregon urges the Deschutes County Board of Commissioners (“board”) to deny
the proposed plan amendments because they misappropriate goal exception criteria for lands that
do not qualify for a goal exception, and misconstrue and misapply state law governing farm and
forest land protection. The proposed amendments lack coordination with affected jurisdictions,
and lack an adequate factual base relating to required showings under Statewide Planning Goals
2, 3, 4, 7, 10, 11, and 12. In addition, the purpose offered for the amendments contradicts
previous determinations of the County. This ill-conceived strategy to circumvent state land use
laws to allow for conversion of protected resource land into expensive rural housing is not well-
founded in law, and violates numerous statutes, statewide planning goals, and administrative
rules that are intended to preserve our state’s natural resources for generations to come.
1000 Friends of Oregon is a nonprofit membership organization that has worked with
Oregonians for more than 40 years to support livable urban and rural communities; protect
family farms and forests; and conserve natural areas. Our work includes resource land protection
through the sound application of Statewide Planning Goals 2, 3, 4, 7, 10, 11 and 12. For the
following reasons, the County should deny the proposed plan amendments.
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A. The county misconstrues applicable law when it asserts that a local “Nonresource
land” designation can allow for conversion of resource land into outright permitted
housing, but that allowance is only permitted via a goal exception.
The county’s initial premise is legally and fatally flawed. In the first page of proposed findings,
the county asserts:
“Nonprime Resource (NPR) Lands, which are also known under State law, OAR 660-
004-005(3) as “Non-Resource” Lands, are areas with an exceedingly low capacity to be
managed for commercial agriculture and/or forestry activities.”
County’s Exhibit F to Ordinance 2019-007 (“Exhibit F”) at 1. Such a statement is facially
inconsistent with state law governing the goal exception process. OAR Chapter 660, Division 4
is titled “Interpretation of Goal 2 Exceptions,” and the above-referenced administrative rule
expressly provides that the definition “Nonresource Land” is for purposes of Division 4, i.e. goal
exceptions. Contrary to law, the County misconstrues this legal term and unreasonably extends
the law to something other than the goal exception process, when claiming that it can be used to
achieve residential development on lands through a process that is not justified under ORS
197.732.
The proposed amendments acknowledge that the proffered local definition of “Nonprime
Resource Lands” attempts to incorporate the legal term “nonresource lands” provided at OAR
660-004-0005(3), notwithstanding the fact that land subject to this new definition “cannot
qualify for an exception pursuant to applicable planning law[.]” County’s Exhibit B to Ordinance
2019-007 at 15. DLCD commented that the low-density residential development that the county
is seeking to achieve should occur through a goal exception rather than the nonprime resource
land designation. DLCD May 15, 2019 Communication at 2. The county’s approach ignores this
legal pathway.
The error in terminology continues, as the findings refer to the six areas (“subject properties”) 1
as “committed residential areas.” Exhibit F at 3. This is not correct terminology, as “committed”
lands are understood to refer to the irrevocably committed goal exception process, an approach
the county is avoiding here. See ORS 197.732(2)(b) and OAR 660-004-0028. The county cannot
use principles derived from the goal exception process as justification for its flawed
unexceptional proposal that attempts to achieve what only a goal exception can do.
1 The plan amendments seek to allow for redesignation of 237 lots located in areas referred to as
Haner Park, Section 36, Meadow Crest Acres, Skyline and Skyline First Addition, and Squaw
Creek Canyon. Notably, Meadow Crest Acres and Squaw Creek Canyon were platted after the
adoption of Oregon’s modern land use planning program.
3 of 8
B. The proposed amendments fail to apply state requirements governing agricultural
land in violation of Statewide Planning Goal 3.
The proposed amendments fail to apply the definition of agricultural land, provided at OAR 660‐
033‐0020(1), to the proposed NPR‐10 zone. Without a showing that the redesignations
envisioned by the proposed amendments for the subject properties will comply with the
definition of agricultural land, the proposed amendments are inconsistent with Goal 3.
OAR 660-033-0020(1) provides, in relevant part, that:
"(a) 'Agricultural Land' as defined in Goal 3 includes:
"(A) Lands classified by the U.S. Natural Resources Conservation Service
(NRCS) as predominantly Class I - IV soils in Western Oregon and I-VI
soils in Eastern Oregon;
"(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; technology and energy
inputs required; and accepted farming practices; and
"(C) Land that is necessary to permit farm practices to be undertaken on
adjacent or nearby agricultural lands.
"(b) Land in capability classes other than I-IV/I-IV 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[.]"
In order to adopt comprehensive plan amendments that allow for the removal of any property
from agricultural land protection, any local program must demonstrate how compliance with the
above administrative rule will occur. Each subsection provided under OAR 660-33-0020(1)(a)
and (b) provides an independent basis that must be analyzed prior to determining that any
property does not constitute agricultural land. The county appears to concede that land subject to
redesignation under the proposed amendments includes land that constitutes 51% or more Class
I-VI soils or intermingled with Class I-VI soils, hence qualifying as agricultural land under OAR
660-033-0020(1)(a)(A). Exhibit F at 19. This facially violates the independent determination of
agricultural land at OAR 660-033-0020(1)(a)(A). The county misconstrues the applicable law
and misinterprets Wetherell v. Douglas County, __Or LUBA__, (LUBA No. 2010-052)
(September 23, 2010), slip op 4. That case applied the “reasonable farmer” inquiry to OAR 660-
033-0020(1)(a)(B) for lands “in other soil classes,” and not to OAR 660-033-0020(1)(a)(A). In
fact, LUBA held in that case that for other soil classes, a local government may consider in
addition to the seven factors listed in the rule whether a reasonable farmer would be motivated to
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put the land to agricultural use, including grazing, for the primary purpose of obtaining a profit in
money. Id. citing Wetherell v. Douglas County (Great American Properties), 342 Or 666, 160
P3d 614 (2007). There is no reasonable argument that the reasonable farmer inquiry can be used
to take land out of resource protection, where land qualifies for resource protection under OAR
660-033-0020(1)(a)(A). The county errs in this regard, as well as in its approach of using the
reasonable farmer inquiry as the sole consideration for whether land constitutes agricultural land.
The county’s proposal improperly allows for conversion of land that qualifies as agricultural land
because the subject properties contain land suitable for farm use as defined in ORS
215.203(2)(a). Land is suitable for farm use based on 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.
Suitability of lands for grazing must be addressed. Dep't of Land Conservation & Dev. v.
Douglas Cnty., __ Or LUBA __ (LUBA Nos. 2018-039, et al.), (August 2, 2019) slip op 37. In
fact, each of these factors must be considered. Wetherell v. Douglas County, 52 Or LUBA 677,
680 (2006).
Noticeably absent from the required suitability factors under OAR 660-033-0020(1)(a)(B) are
“historical use,” “acreage size,” “lotting patterns,” and “ownership,” although these appear to be
the attributes the county depends on when attempting to prove that the subject properties do not
constitute agricultural land. This approach is inconsistent with OAR 660-033-0020(1)(a)(B). In
addition, the findings and the amendments themselves do not sufficiently address, based on an
adequate factual base, whether any of the subject properties are necessary to permit farm
practices on adjacent or nearby agricultural lands, nor does the county adequately explain
whether the subject properties constitute lands that are adjacent to or intermingled with other
agricultural lands.
C. The Proposed Amendments fail to apply state requirements governing forestland,
and therefore violate Statewide Planning Goal 4.
The proposed amendments fail to apply the definition and procedures for identifying forest land,
found at OAR 660‐006‐0005 and -0010 to the NPR‐10 zone and are inconsistent with Goal
4. OAR 660-006-0005(7) defines forest land as lands acknowledged as forest land, lands that are
suitable for commercial forest uses, including adjacent or nearby lands which are necessary to
permit forest operations or practices; and other forested lands that maintain soil, air, water and
fish and wildlife resources. The proposed amendments demonstrate an intention to redesignate
lands in the proposed NPR‐10 zone that clearly meet these definitions of forest lands in violation
of Statewide Planning Goal 4.
The county appears to concede that subject properties allowed to be redesignated NRP-10
include protected forest land when it states:
“According to the Deschutes National Forest Soil Resource Inventory, Haner Park,
5 of 8
Skyline Subdivision, 1st Addition, Squaw Creek Canyon Recreation Estates 1st
Addition and Section 36 possess a potential productivity of 20 or more cubic feet per
acre per year, at culmination of mean annual increment, for one or more tree species
native to Deschutes County.” (Underline and italics added.)
Exhibit F at 11. See also Exhibit F at 18 (“In Deschutes County land that grows 20 or more
cubic feet of basal area per year is considered forestland.”) LUBA has already held that the
county may not simply exclude from forest land those lands with a productivity threshold below
80 cubic acre feet per year. Wetherell v. Douglas County, 50 Or LUBA 167, 199 (2005), rem'd
on other grounds, 204 Or App 732, 132 P3d 41 (2006), rev'd and rem'd on other grounds, 342
Or 666, 160 P3d 614 (2007). It is only when land with wood productivity of less than 20 cubic
feet per acre per year that land is considered unsuitable for commercial forest use unless other
factors compensate for the relatively low productivity. Anderson v. Coos County, 62 Or LUBA
38 (2010). Land that has potential productivity of 20 cubic feet per acre per year or more
constitutes commercial forest land, and is protected under Goal 4, and cannot be taken out of
resource protection.
The proposed findings ignore the productivity of the lands, and inject new factors of
parcelization and ownership that are irrelevant to the definition at OAR 660-006-0005(7) and the
identification process at OAR 660-006-0010(2), when evaluating what constitutes forestland:
“Given the fact that Haner Park, Section 36, Skyline Subdivision, Skyline Subdivision 1st
Addition, and Squaw Creek Canyon Recreational Estates 1st Addition are already
parcelized and owned by multiple parties, it is impractical to expect that a “reasonable”
forester or farmer would put the land to forestry or agricultural use.”
Exhibit F at 18. The county errs in its determination that parcelization and ownership status
determine whether land is forestland under Goal 4. See OAR 660-006-0010(2). In order to
determine whether the subject properties have attributes sufficient to constitute commercial
forestland, National Resource Conservation Service data must be used, and if that data is not
available or is inaccurate, the following must be considered, in priority order:
“1. Oregon Department of Revenue Western Oregon site class maps;
“2. USDA Forest Service plant association guides;
“3. Other information determined by the State Forester to be of comparable quality;
and
“4. If the above data is unavailable, the alternative method set out in the Oregon
Department of Forestry's Technical Bulletin may be used.
6 of 8
Dep't of Land Conservation & Dev. v. Douglas Cnty., Slip op 26-27. Without using the above
priority methodology concerning commercial forestland capability, the proposed amendments
violate Goal 4.
The county improperly considers lot size and ownership as a basis to conclude that lands sought
to be redesignated do not maintain soil, air, water, and fish and wildlife habitat. This error is
highlighted in the context of Haner Park, where the land involved abuts a river. It is implausible
to determine that undeveloped land that abuts a river does not provide ecosystem services for
that river body’s water quality. In addition, just because a property does not provide the type of
ecosystem services that are typically associated with large undeveloped forested tracts, that does
not mean that a given parcel does not constitute Other forestlands under Goal 4.
Moreover, Goal 5 protections provide further evidence that the subject properties include land
that indeed maintains wildlife habitat, and therefore constitutes other forest lands. The County’s
own proposed findings acknowledge that at least three of the subject areas contain
acknowledged Goal 5 habitat for winter deer range or deer migration corridors (Squaw Creek
Canyon, Meadow Crest, and Section 36). Exhibit F at 15.
Without ensuring compliance now with Goal 3 and Goal 4 for the many redesignations of
agricultural and forest land that would ensue upon adoption, the proposed amendments fail to
meet the standard at ORS 197.175(2)(a) that all post‐acknowledgement plan amendments
comply with the goals.
D. The proposed amendments lack an adequate factual base and illegally flip the
evidentiary showing required to take land out of resource protection.
The county errs in its conclusion that the findings document provides the adequate factual base
and documented analysis for this plan update as required by Statewide Planning Goal 2. Exhibit
F at 7. The findings demonstrate that the county is depending on conclusory statements of fact
without evidence to back up those statements. Such an approach is inconsistent with Statewide
Planning Goal 2’s requirement that plans be supported by an adequate factual base. There simply
is not an adequate factual base demonstrating that none of the properties can be used for
agricultural or forestry options, or constitute agricultural or forest lands under the multiple
definitions provided under the administrative rules described above. There is no adequate factual
base to determine that none of the properties can be used in conjunction with adjoining or nearby
agricultural or forestry operations because they are “committed to residential uses.” This failure
is illustrated by Haner Park, where it is surrounded by forest use land, including the Deschutes
National Forest land. To the extent land use history is relevant to any of the aforementioned
inquiries, the proposal lacks an adequate factual base to demonstrate sufficient evidence
regarding historical use that support a finding that the subject properties do not constitute
agricultural or forest land. There is no evidence to demonstrate that the subject properties do not
provide ecosystem services sufficient to qualify them as other forest lands.
7 of 8
Even more problematic is that the proposed findings flip the evidentiary burden that is provided
under state law when considering whether a given resource-zoned parcel is not subject to
resource land protection. The fact that the county determines that there is “no evidence of the
subject property being used for farming” or for forestry use does not demonstrate that a property
is not resource land. OAR 660-033-0020(1)(a)(B) does not ask whether a given property has
been farmed, but rather whether it is suitable for farming. To the extent historical use is a
relevant factor in determining suitability, the absence of evidence does not constitute evidence in
and of itself. Columbia Riverkeeper v. Columbia Cnty., 297 Or App 628, 647, 443 P3d 1184
(2019) (an absence of evidence in the context of meeting a legal standard cannot be a basis on
which to logically infer compliance with a standard). The county’s proposed findings regarding
each subject property’s resource status lack an adequate factual base because they depend on the
absence of, rather than existence of, evidence to support the findings’ conclusions that no land
within the subject properties constitutes agricultural or forest land.
As COLW pointed out in prior testimony, the county already reviewed in 2015 whether any
mapping areas occurred, and concluded that rural platted or subdivided lands within resource
designations were not mistakenly designated agricultural or forest land. Any other determination
now, without persuasive substantial evidence, would constitute arbitrary and capricious decision
making, and be inconsistent with Statewide Planning Goal 2’s requirement that comprehensive
plans be based on an adequate factual base. Based on the analysis provided above, the proposed
findings lack an adequate factual base for the assertion that “NPR Lands do not warrant
agricultural and forest use zoning and should be made available for other land uses.” Exhibit F at
1.
The findings also demonstrate a lack of coordination and a lack of an adequate factual base
relating to compliance with Statewide Planning Goals 2, 7, 10, 11, and 12. The findings do not
address whether the county has adequately coordinated with affected jurisdictions. The findings
do not demonstrate that the allowance of residential development outside of urban growth
boundaries would impact municipalities’ ability to meet Goal 10 obligations regarding needed
housing. The findings fail to address whether there will be sufficient transportation infrastructure
and fire district support to provide hazard response services to what will likely be over two
hundred outright permitted residential dwellings. The findings fail to address whether the soils
and water table for the subject properties are of sufficient quality and depth to accommodate
septic needs of the residential development that would be allowed under NRP-10 zoning. The
findings fail to address whether domestic wells will provide sufficient water for uses allowed
under the NRP-10 zoning, and whether additional residential water use will impact ability to
irrigate resource lands.
E. The County would be well served to abandon this ill-conceived proposal that is not
based in law.
The county cannot avoid application of Statewide Planning Goals 3 and 4 by simply stating that
they do not apply. In order to amend the comprehensive plan in a manner that allows residential
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development outright on rural lands, the county must either take a goal exception, or incorporate
the robust standards provided under statute, planning goals, administrative rule, and binding case
law that adequately address the numerous independent definitions that apply when considering
the removal of land from resource protection.
If the county has an evidentiary basis to demonstrate that mapping errors actually exist and need
to be corrected, or wants to update designations of farmlands and forestlands for land use
planning, we encourage the county to utilize the existing statutory framework to achieve such
actions provided at ORS 215.788. Based on prior work of the county, no adequate factual base
exists to demonstrate that mapping errors occurred.
The proposed amendments are inconsistent with core principles of Oregon land use laws, and
would erode the much‐treasured rural character of Deschutes County. For these reasons, we
strongly urge the county to deny the proposed amendments. We request that the county leave the
record open for at least seven (7) additional days, and allow for at least an additional seven (7)
days to provide response testimony and evidence. Thank you for the opportunity to comment on
this important issue.
Thank you,
Scott Hilgenberg
Rural Lands Legislative Attorney
1000 Friends of Oregon
Cc:
Rory Isbell
Carol Macbeth
File No. 247-19-000265-PA
Board of County CommissionersNovember 6, 2019
Nonprime Resource Lands
What are Nonprime Resource Lands?
• Known as “Non-Resource” Lands under OAR 660-004-005(3).
• Exceedingly low capacity to be managed for commercial agriculture and/or forestry activities.
• Do not meet State agricultural land or forestlands definitions.
Legacy Issue in Deschutes County
• 1970 farm land designations limited by available soil maps.
• Non-urban, undeveloped and uncommitted lands zoned EFU or Forest Use.
Nonprime Resource Lands
Proposal 1 Proposal 2
Proposal 1
Residential Committed Areas
237 lots110 are vacantApx. 900 acres*
Comprehensive Plan AmendmentsSection 1.3 – Land Use PlanningSection 2.2 – Agricultural landsSection 2.3 – Forest LandsSection 3.1 – IntroductionSection 3.2 – Rural DevelopmentSection 3.3 – Rural HousingSection 3.11 – New Nonprime Resource Lands
Comprehensive Plan Amendments
2 Amended Policies• Agricultural Lands• Rural Housing
2 New Goals• NPR Lands
10 New Policies• Forest Lands• Rural Housing• NPR Lands
Agricultural Lands Policy
Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including qualifying Nonprime Resource Lands defined as “nonresource lands” pursuant to OAR 660-004-005(3) for EFU parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan.
Forest Lands Policy
Policy 2.3.13 Allow comprehensive plan and zoning map amendments, including qualifying Nonprime Resource Lands defined “as nonresource lands” pursuant to OAR 660-004-005(3) for Forest Use zoned parcels as allowed by State Statute, Oregon Administrative Rules, and this Comprehensive Plan.
Rural Housing Policies
Policy 3.3.1 The minimum parcel size for new rural residential parcels in Rural Residential Exception Areas shall be 10 acres.
Policy 3.3.2Land divisions are prohibited in the Nonprime Resource Lands-10 zone.
Nonprime Resource Lands
Policy 3.11.1Property owners can continue to apply through a quasi-judicial process for a rezone from Exclusive Farm Use or Forest Use to a nonresource zone consistent with state law.
Goal 1Allow the designation of Nonprime Resource Lands in Deschutes County
Nonprime Resource Lands
Goal 2
Resolve resource zoning restrictions applied to subdivisions platted prior to Statewide planning legislation taking effect in Deschutes County, Haner Park, and Section 36 in Township 22S, Range 10E
Nonprime Resource Lands
Policy 3.11.2A Nonprime Resource Lands-10 zone provides procedures and standards for rural residential living environments and development that balance the public’s interest in the management of community growth with the protection of individual property rights.
Nonprime Resource Lands
Policy 3.11.3A single family dwelling or a manufactured home and their accessory uses shall be permitted outright.
Nonprime Resource LandsPolicy 3.11.4The Nonprime Resource Lands-10 zone is available only for the following properties…
a. Meadow Crest Acres Subdivisionb. Skyline Subdivisionc. Skyline Subdivision, 1st Additiond. Squaw Creek Canyon Recreational Estates 1st Additione. Haner Parkf. Section 36, Township 22S, Range 10E
Nonprime Resource Lands
Policy 3.11.5The properties in Policy 3.11.4 are not eligible for a land division.
Nonprime Resource LandsPolicy 3.11.6Lots in Meadow Crest Acres Subdivision and Squaw Creek Canyon Recreational Estates 1st Addition with 51% or more Class I-VI soils or intermingled with Class I-VI soils remain eligible upon demonstration that the property is unsuitable for farm use based on its land use history and whether a reasonable farmer would put the land to agricultural use.
Nonprime Resource LandsPolicy 3.11.7Lots in Haner Park, Section 36, Skyline Subdivision, Skyline Subdivision 1st Addition, and Squaw Creek Canyon Recreational Estates 1st Addition committed to residential uses that entirely possess a potential productivity of 20 or more cubic feet per acre per year, at culmination of mean annual increment, for one or more tree species native to Deschutes County remain eligible upon demonstration that the property is unsuitable for forestry use based on its land use history and whether a reasonable forester or farmer would put the land to forestry or agricultural use.
Nonprime Resource Lands
Policy 3.11.8Until a Nonprime Resource Lands-10 zone is adopted, property owners can continue to apply through a quasi-judicial process for a rezone from Exclusive Farm Use or Forest Use to a nonresource zone consistent with state law.
Summary• Not suitable for farm/forest uses.
• No impact to neighboring farm/forest uses.
• No impact to wildlife habitat.
• Only applies to 6 residentially committed areas.
Public Hearing
November 18, 2019
Atfidavit of PublicationSTATE OF OREGON, COUNTY OF DESCHUTES
l, Tonya McKiernan, a citizen of the United State and a resident of the county aforesaid; I am over the age of eigh-teen years, and not part to or interested in the above-entitled matter. I am the principal clerk ol the printer of
1777 SW CHANDLER AVE. BEND OR97702a daily newspaper of general circulation, published in the aloresaid county and state as defined byORS 192.010 and ORS 192320,ihat
Acct Name: DESCHUTES COUNTY COMMUNITY DEV.PO Number: 247-1 9-000265-PALegal Description: Legal Notice
NOTICE OF PUBL]C HEARINGThe Deschutes County Board of County Commissioners will hold a publichearing on November 18, 2019, at approximately 10:00 a.m. in the Barnesand Sawyer Rooms of the Deschutes Services Center, 1300 NW Wall St.,Bend, t
a printed copy of which is hereto affixed was published in each regular and entire issue of the saidnewspaper and not in any supplement thereof on the following dates to wit:
1110812019
I certify (or declare) under penalty of perjury that the foregoing is true and correct.
L
Dated at Bend, Oregon, this 6th day of November, 2019
AdName: 111509
State of Oregon, County of Deschutes
and Sworn to before me this
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Notary Public
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STATE OF OREGONlor the
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AFFIDAVIT OF PUBLICATION
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NOTAhY PUBLIC€frEGOI.IcoMMtsstoN no. m14
MY COT4MISSION EXPIRES OCIOBER 21,M2
File No. 247-19-000265-PA
Board of County CommissionersNovember 6, 2019
Nonprime Resource Lands
What are Nonprime Resource Lands?
• Known as “Non-Resource” Lands under OAR 660-004-005(3).
• Exceedingly low capacity to be managed for commercial agriculture and/or forestry activities.
• Do not meet State agricultural land or forestlands definitions.
Legacy Issue in Deschutes County
• 1970 farm land designations limited by available soil maps.
• Non-urban, undeveloped and uncommitted lands zoned EFU or Forest Use.
Nonprime Resource Lands
Proposal 1 Proposal 2
Proposal 1
Residential Committed Areas
237 lots110 are vacantApx. 900 acres*
Comprehensive Plan AmendmentsSection 1.3 – Land Use PlanningSection 2.2 – Agricultural landsSection 2.3 – Forest LandsSection 3.1 – IntroductionSection 3.2 – Rural DevelopmentSection 3.3 – Rural HousingSection 3.11 – New Nonprime Resource Lands
Comprehensive Plan Amendments
2 Amended Policies• Agricultural Lands• Rural Housing
2 New Goals• NPR Lands
10 New Policies• Forest Lands• Rural Housing• NPR Lands
Agricultural Lands Policy
Policy 2.2.3 Allow comprehensive plan and zoning map amendments, including qualifying Nonprime Resource Lands defined as “nonresource lands” pursuant to OAR 660-004-005(3) for EFU parcels as allowed by State Statute, Oregon Administrative Rules and this Comprehensive Plan.
Forest Lands Policy
Policy 2.3.13 Allow comprehensive plan and zoning map amendments, including qualifying Nonprime Resource Lands defined “as nonresource lands” pursuant to OAR 660-004-005(3) for Forest Use zoned parcels as allowed by State Statute, Oregon Administrative Rules, and this Comprehensive Plan.
Rural Housing Policies
Policy 3.3.1 The minimum parcel size for new rural residential parcels in Rural Residential Exception Areas shall be 10 acres.
Policy 3.3.2Land divisions are prohibited in the Nonprime Resource Lands-10 zone.
Nonprime Resource Lands
Policy 3.11.1Property owners can continue to apply through a quasi-judicial process for a rezone from Exclusive Farm Use or Forest Use to a nonresource zone consistent with state law.
Goal 1Allow the designation of Nonprime Resource Lands in Deschutes County
Nonprime Resource Lands
Goal 2
Resolve resource zoning restrictions applied to subdivisions platted prior to Statewide planning legislation taking effect in Deschutes County, Haner Park, and Section 36 in Township 22S, Range 10E
Nonprime Resource Lands
Policy 3.11.2A Nonprime Resource Lands-10 zone provides procedures and standards for rural residential living environments and development that balance the public’s interest in the management of community growth with the protection of individual property rights.
Nonprime Resource Lands
Policy 3.11.3A single family dwelling or a manufactured home and their accessory uses shall be permitted outright.
Nonprime Resource LandsPolicy 3.11.4The Nonprime Resource Lands-10 zone is available only for the following properties…
a. Meadow Crest Acres Subdivisionb. Skyline Subdivisionc. Skyline Subdivision, 1st Additiond. Squaw Creek Canyon Recreational Estates 1st Additione. Haner Parkf. Section 36, Township 22S, Range 10E
Nonprime Resource Lands
Policy 3.11.5The properties in Policy 3.11.4 are not eligible for a land division.
Nonprime Resource LandsPolicy 3.11.6Lots in Meadow Crest Acres Subdivision and Squaw Creek Canyon Recreational Estates 1st Addition with 51% or more Class I-VI soils or intermingled with Class I-VI soils remain eligible upon demonstration that the property is unsuitable for farm use based on its land use history and whether a reasonable farmer would put the land to agricultural use.
Nonprime Resource LandsPolicy 3.11.7Lots in Haner Park, Section 36, Skyline Subdivision, Skyline Subdivision 1st Addition, and Squaw Creek Canyon Recreational Estates 1st Addition committed to residential uses that entirely possess a potential productivity of 20 or more cubic feet per acre per year, at culmination of mean annual increment, for one or more tree species native to Deschutes County remain eligible upon demonstration that the property is unsuitable for forestry use based on its land use history and whether a reasonable forester or farmer would put the land to forestry or agricultural use.
Nonprime Resource Lands
Policy 3.11.8Until a Nonprime Resource Lands-10 zone is adopted, property owners can continue to apply through a quasi-judicial process for a rezone from Exclusive Farm Use or Forest Use to a nonresource zone consistent with state law.
Summary• Not suitable for farm/forest uses.
• No impact to neighboring farm/forest uses.
• No impact to wildlife habitat.
• Only applies to 6 residentially committed areas.
Public Hearing
November 18, 2019
1
Zechariah Heck
From: [email protected]: Wednesday, August 07, 2019 5:58 PMTo: [email protected]; [email protected]; Zechariah Heck;
[email protected]; [email protected]; [email protected]; [email protected]; [email protected]
Subject: Small EFU Parcels
[EXTERNAL EMAIL]
To: All Those Who Can Make a Difference and Change the Archaic State Laws
RE: Small Scale Farming needs to have more zoning options Farming on a small scale is just not possible to make a living. The policy of the Oregon State Land Planning states, if EFU land has water, and land was previously farmed, then EFU zone should remain EFU. These rules were created when farming and forestry were the ‘main stay’ of Oregon economy 50 or so years ago when the State of Oregon was encouraging commercial farming. It is impossible for the small farmer to make a living on his small parcel land legitimately. It may still be true for a large scale commercial operations, but, not small acreage bordering UGB. We would be glad to meet with any of the addressees to review what it takes to maintain small parcels on EFU. What would be a realistic criteria to consider for zoning change. 1. Proximity to City limits & UGB. 2. No additional City or County services needed i.e. Fire, etc. 3. Land does not interfere with wildlife migration. 4. Rezoned land can still provide the same Rural Lifestyle. 5. Land does not disrupt commercial farming. 6. USDA Soil Maps were not consulted before our EFU designation. We live near 15th Street and Knott surrounded by 2-5 acre parcels of RR10 & MUA10 while ours is EFU. Ourselves and our neighbors have irrigation water. 1. Everyone waters their property to keep water rights and land value.! 2. Some have horses, cattle or hay. Then some just mow or brush hog their fields. (None of these activities are done on a commercial scale.) 3. When you drive down our road, you can not determine which property is EFU, RR10 or MUA10.
2
Our property is very close to the Elbow SE. We are less than a mile from the UGB on the front of our property and 1250 feet from the City of at the back of our property . The following will be near the proposed Roundabout at 15th & Knott • 1600 student high school next to a 37 acre Bend City Park. • Large Commercial zone for grocery store and other retail & RS zones Bottom Line: We need flexible options which allow EFU land owners to keep their homes and be able to sell or partition their properties which meets reasonable criteria for doing so. It should not take years with many obstacles in their path with costly soil test and legal costs. Let’s clear a path for rezoning small EFU Parcels. 1. Remove land owner restrictions on rezoning EFU parcels of 23 acres or less. 2. Local planning should have the authority to implement these types of zone changes. 3. Be able to make changes in weeks not years. We are pleased to see that our concerns for the small EFU owner are heard and discussions started on how to deal with the issue of small sites designated as EFU which are not economically feasible and produce zero revenue for the State, County or City. Small Scale Farming needs to have more zoning options especially since we believe the small EFU parcels in South East Bend do not have USDA soil maps because the USDA realized this area was not farmable because of the huge amount of lava rock outcroppings in this area. We would appreciate the State of Oregon addressing the needs of EFU parcels under 23 acres and giving these owners more options to work with their land keeping the Rural Residential look but eliminate EFU zone. Sincerely, Don Jacobs Bend, Oregon ps We would like to hear your response
3
1
Zechariah Heck
From: Tom AndersonSent: Monday, August 05, 2019 12:01 PMTo: Nick Lelack; Peter Gutowsky; Zechariah HeckSubject: FW: Small Parcel EFU landAttachments: Don's letter to commissioners.pdf; ATT00001.htm; Screen Shot 2019-08-04 at 5.36.19
PM.png; ATT00002.htm
From: [email protected] <[email protected]> Sent: Monday, August 05, 2019 8:23 AM To: Patti Adair <[email protected]>; Phil Henderson <[email protected]>; Tony DeBone <[email protected]>; Board <[email protected]> Subject: Small Parcel EFU land
[EXTERNAL EMAIL]
To our County Commissioners: We would like our County Commissioners to consider rezoning Small EFU parcels that can not make a living for their owners, that are close to the City of Bend and UGB and path of growth, will not require additional City or County Services, do not hinder migration of wildlife and were designated EFU without the use of USDA maps.
Farming on a small scale is just not possible to make a living. The policy of the Oregon State Land Planning states, if EFU land has water, and land was previously farmed, then EFU zone should remain EFU. These rules were created when farming and forestry were the ‘main stay’ of Oregon economy 50 or so years ago when the State of Oregon was encouraging commercial farming. It is impossible for the small farmer to make a living on his small parcel land legitimately. It may still be true for a large scale commercial operations, but, not small acreage bordering UGB. We would be glad to meet with any of the addressees to review what it takes to maintain small parcels on EFU. What would be a realistic criteria to consider for zoning change. Proximity to City limits & UGB. No additional City or County services needed i.e. Fire, etc. Land does not interfere with wildlife migration. Rezoned land can still provide the same Rural Lifestyle. Land does not disrupt commercial farming. USDA Soil Maps were not consulted before EFU designation. We live near 15th Street and Knott surrounded by 2-5 acre parcels of RR10 & MUA10 while ours is EFU. Ourselves and our neighbors have irrigation water.
2
Everyone waters their property to keep water rights and land value. Some have horses, cattle or hay. Then some just mow or brush hog their fields. (None of these activities are done on a commercial scale.) When you drive down our road, you can not determine which property is EFU, RR10 or MUA10. Our property is very close to the Elbow SE. We are less than a mile from the UGB on the front of our property and 1250 feet from the City of at the back of our property . The following will be near the proposed Roundabout at 15th & Knott 1600 student high school next to a 35 acre Bend Park & Rec Park Large Commercial zone for grocery store and other retail & RS zones Bottom Line: We need flexible options which allow EFU land owners to keep their homes and be able to sell or partition their properties which meets reasonable criteria for doing so. It should not take years with many obstacles in their path with costly soil test and legal costs. Let’s clear a path for rezoning small EFU Parcels. Remove land owner restrictions on rezoning EFU parcels of 23 acres or less. Local planning should have the authority to implement these types of zone changes. Be able to make changes in weeks not years. We are pleased to see that our concerns for the small EFU owner are heard and discussions started on how to deal with the issue of small sites designated as EFU which are not economically feasible and produce zero revenue for the State, County or City.
Sincerely,
Farming on a small scale is just not possible to make a living. The policy of the Oregon State Land Planning states, if EFU land has water, and land was previously farmed, then EFU zone should remain EFU. These rules were created when farming and forestry were the ‘main stay’ of Oregon economy 50 or so years ago when the State of Oregon was encouraging commercial farming. It is impossible for the small farmer to make a living on his small parcel land legitimately. It may still be true for a large scale commercial operations, but, not small acreage bordering UGB.
We would be glad to meet with any of the addressees to review what it takes to maintain small parcels on EFU.
What would be a realistic criteria to consider for zoning change.1. Proximity to City limits & UGB.2. No additional City or County services needed i.e. Fire, etc.3. Land does not interfere with wildlife migration.4. Rezoned land can still provide the same Rural Lifestyle.5. Land does not disrupt commercial farming.6. USDA Soil Maps were not consulted before EFU designation.
We live near 15th Street and Knott surrounded by 2-5 acre parcels of RR10 & MUA10 while ours is EFU. Ourselves and our neighbors have irrigation water.
1. Everyone waters their property to keep water rights and land value.!2. Some have horses, cattle or hay. Then some just mow or brush hog their fields.
(None of these activities are done on a commercial scale.)3. When you drive down our road, you can not determine which property is EFU, RR10
or MUA10.
Our property is very close to the Elbow SE. We are less than a mile from the UGB on the front of our property and 1250 feet from the City of at the back of our property . The following will be near the proposed Roundabout at 15th & Knott• 1600 student high school next to a 35 acre Bend Park & Rec Park• Large Commercial zone for grocery store and other retail & RS zones
Bottom Line: We need flexible options which allow EFU land owners to keep their homes and be able to sell or partition their properties which meets reasonable criteria for doing so. It should not take years with many obstacles in their path with costly soil test and legal costs. Let’s clear a path for rezoning small EFU Parcels.1. Remove land owner restrictions on rezoning EFU parcels of 23 acres or less.2. Local planning should have the authority to implement these types of zone changes.3. Be able to make changes in weeks not years.
We are pleased to see that our concerns for the small EFU owner are heard and discussions started on how to deal with the issue of small sites designated as EFU which are not economically feasible and produce zero revenue for the State, County or City.
Small Scale Farming needs to have more zoning options.
Small Scale Farming needs to have more zoning options.
The following books, available at the County Planning Division office at 117 NW Lafayette Ave. Bend, OR 97703, were also submitted by Jan Elrod:
Virginia Lee Burton - "The Little House"; Houghton Mifflin Harcourt Publishing Co.; Copyright 1942 New York, New York; ISBN: 0-395-25938-X
Shel Silverstein - "The Giving Tree"; HarperCollins Children's Books; Copyright 1964 New York, New York; ISBN: 978-0-06-025665-4
117 NW Lafayette Avenue, Bend, Oregon 97703 | P.O. Box 6005, Bend, OR 97708-6005
(541) 388-6575 cdd@deschutes .org www.deschutes.org/cd
MEMORANDUM
TO: Board of County Commissioners (“Board”) FROM: Nick Lelack, AICP, Director
Peter Gutowsky, AICP, Planning Manager Zechariah Heck, Associate Planner DATE: July 24, 2019 SUBJECT: Nonprime Resource Lands – Update
To date, the Planning Commission has held three (3) open houses, two (2) public hearings, and two (2) deliberations regarding Comprehensive Plan amendments addressing Nonprime Resource (NPR) Lands (File No. 247-19-000265-PA). The Planning Commission is scheduled to continue deliberations on August 8. In the interim, the Planning Commission is seeking direction from the Board on the scope of its review (and potential process) on the NPR Lands amendments.
I. SUMMARY OF AMENDMENTS
There are two components to the NPR Lands amendments.
• Comprehensive Plan policies identify opportunities to re-designate six areas committed to residential uses that were platted or conveyed prior to State enabling planning legislation taking effect in Deschutes County;1 and
• Comprehensive Plan policies establish eligibility criteria for re-designating Exclusive Farm Use (EFU) or Forest Use zoned properties to NPR Lands.
If NPR Land policies/criteria are acknowledged, Deschutes County would propose a new Comprehensive Plan designation and NPR-10 zone solely to the six areas committed to residential uses. This new zone would allow residential uses outright. The County would also adopt into Deschutes County Code, Title 18 – Zoning, a NPR-20 zone. This zone would be required for all future “Non-Resource” lands quasi-judicial Comprehensive Plan / Zone Change applications.
II. UPDATE ON RECOMMENDATION STATUS
The Planning Commission approved the following the recommendations on July 9 and 11:
1 The six residentially committed areas are: Haner Park, Section 36, Skyline Subdivision and 1st Addition, Squaw Creek Canyon Recreational Estates 1st Addition and Meadow Crest Acres Subdivision.
Page 2 of 7
1. Recommended by 5-0-1 vote (five in favor, one abstention) to support the Comprehensive Plan amendments to establish criteria that would enable the County in a subsequent phase to establish a NPR-10 zone and rezone six (6) residentially committed areas.
2. Recommended by a 5-1-1 (five in favor, one opposed, and one abstention) vote to check-in with the Board to gain approval to further review and likely expand the Comprehensive Plan eligibility criteria pertaining to rezoning other farm and forest lands to a NPR-20 zone, and establishing a process to review and expand those criteria. The majority (5) want to confirm the Board supports their efforts to potentially expand the proposed criteria beyond the proposed criteria. While they did not elaborate on the process, staff assumes they may want to re-open the public record to allow additional public comments on these criteria.
3. Recommended 5-0-2 (five in favor, two abstentions) to support resubmitting the County’s 2015 letter (with an updated date and members) from both the Board and Planning Commission to the Land Conservation and Development Commission to develop and adopt statewide non-resource lands administrative rules.
III. POLICY AMENDMENTS
Below are the draft goal and policy amendments. As noted above the Planning Commission recommended approving policies pertaining to lands committed to residential uses (Policies 3.11.9 to 3.11.16).2 Goal 1 Allow the designation of Nonprime Resource Lands in Deschutes County Nonprime Resource Lands – General Policies Policy 3.11.1 A proposal to designate Nonprime Resource Lands may be initiated by either a property
owner or Deschutes County. Policy 3.11.2 The purpose of the Nonprime Resource Lands designation is to allow low intensity rural
development. Policy 3.11.3 To qualify for a Nonprime Resource Lands comprehensive plan designation and Nonprime
Resource Lands zoning, a property must demonstrate: a. The State’s soil and definitional standards of agricultural land do not apply because:
i. Fifty-one percent of a property contains Class VII or VIII soils as classified by the NRCS; ii. The site is not suitable for farm use:
1. It cannot be used for grazing or in conjunction with adjoining or nearby agricultural or grazing operations.
2. It has no availability of water for farm irrigation. 3. It cannot be combined with any other adjacent land for farming to occur
2 The Planning Commission recommended deleting Policy 3.11.15 because staff determined Goal 5 and an ESEE analysis is no longer required.
Policy 3.11.15 Notwithstanding Policy 3.11.3.c, lands committed to residential uses with significant Goal 5 natural resources are eligible for a Nonprime Resource Lands-10 zone subject to an ESEE analysis.
Page 3 of 7
4. It is not intermingled with lands in Class I-VI soils. 5. It is unnecessary to allow adjacent properties to continue to function as agricultural
land. b. The State’s soil and definitional standards of forest land or forest productivity potential do
not apply by showing the entire parcel possesses a potential productivity of less than 20 cubic feet per acre per year, at culmination of mean annual increment, for one or more tree species native to Deschutes County;
c. It does not contain Goal 5 natural resources; d. It is located in a fire-protection district or can be annexed into one; e. It does not significantly affect a County or State transportation system consistent with
Statewide Planning Goal 12; f. If irrigation districts are impacted by a Nonprime Resource Lands designation, identify
conditions of approval that should be placed on the property. Policy 3.11.4 A Nonprime Resource Lands-20 zone provides procedures and standards for low density
rural development that balances the public’s interest in the management of community growth with the protection of individual property rights.
Policy 3.11.5 The Nonprime Resource Lands-20 zone applies to eligible properties excluding those
identified in Policy 3.11.12. Policy 3.11.6 The minimum parcel size for the Nonprime Resource Lands-20 zone shall be 20 acres. Policy 3.11.7 A single family dwelling or a manufactured home and their accessory uses shall be permitted
outright. Policy 3.11.8 Until a Nonprime Resource Lands-20 zone is adopted, property owners can continue as
before and apply for a rezone from Exclusive Farm Use to Multiple Use Agriculture. Goal 2 Resolve resource zoning restrictions applied to subdivisions platted prior to Statewide
planning legislation taking effect in Deschutes County, Haner Park, and Section 36 in Township 22S, Range 10E
Nonprime Resource Lands – Committed Residential Use Policies Policy 3.11.9 A Nonprime Resource Lands-10 zone provides procedures and standards for rural
residential living environments and development that balance the public’s interest in the management of community growth with the protection of individual property rights.
Policy 3.11.10 A single family dwelling or a manufactured home and their accessory uses shall be permitted
outright. Policy 3.11.11 The minimum parcel size for the Nonprime Resource Lands-10 zone shall be 10 acres. Policy 3.11.12 The Nonprime Resource Lands-10 zone is available only for the following properties
committed to residential uses because they are platted, parcelized, or partially developed:
Page 4 of 7
a. Meadow Crest Acres Subdivision b. Skyline Subdivision c. Skyline Subdivision, 1st Addition d. Squaw Creek Canyon Recreational Estates 1st Addition e. Haner Park f. Section 36, Township 22S, Range 10E
Policy 3.11.13 Notwithstanding Policies 3.11.3.a.i. and 3.11.3.a.ii.4., lots in Meadow Crest Acres Subdivision
and Squaw Creek Canyon Recreational Estates 1st Addition with 51% or more Class I-VI soils or intermingled with Class I-VI soils remain eligible upon demonstration that the property is unsuitable for farm use based on its land use history and whether a reasonable farmer would put the land to agricultural use.
Policy 3.11.14 Notwithstanding Policy 3.11.3b., lots in Haner Park, Section 36, Skyline Subdivision, and
Skyline Subdivision 1st Addition committed to residential uses that entirely possess a potential productivity of 20 or more cubic feet per acre per year, at culmination of mean annual increment, for one or more tree species native to Deschutes County remain eligible upon demonstration that the property is unsuitable for forestry use based on its land use history and whether a reasonable forester or farmer would put the land to forestry or agricultural use.
Policy 3.11.16 Until a Nonprime Resource Lands-10 zone is adopted, property owners can continue as
before and apply for a rezone from Exclusive Farm Use to Multiple Use Agriculture.
IV. MATRIX
Attached is a matrix that lists the proposed goals and policies with staff comments.
117 NW Lafayette Avenue, Bend, Oregon 97703 | P.O. Box 6005, Bend, OR 97708-6005
(541) 388-6575 cdd@deschutes .org www.deschutes.org/cd
Nonprime Resource Lands Draft Goal and Policy Amendments
Goals and Policies Comments
Goal 1 Allow the designation of Nonprime Resource Lands in Deschutes County
Nonprime Resource Lands – General Policies
Policy 3.11.1 A proposal to designate Nonprime Resource Lands may be initiated by either a property owner or Deschutes County.
Purpose statement
Policy 3.11.2 The purpose of the Nonprime Resource Lands designation is to allow low intensity rural development.
Purpose Statement
Policy 3.11.3 To qualify for a Nonprime Resource Lands comprehensive plan designation and Nonprime Resource Lands zoning, a property must demonstrate: a. The State’s soil and definitional standards of agricultural
land do not apply because: i. Fifty-one percent of a property contains Class VII or VIII
soils as classified by the NRCS; ii. The site is not suitable for farm use:
1. It cannot be used for grazing or in conjunction with adjoining or nearby agricultural or grazing operations.
2. It has no availability of water for farm irrigation. 3. It cannot be combined with any other adjacent land
for farming to occur 4. It is not intermingled with lands in Class I-VI soils. 5. It is unnecessary to allow adjacent properties to
continue to function as agricultural land. b. The State’s soil and definitional standards of forest land or
forest productivity potential do not apply by showing the entire parcel possesses a potential productivity of less than 20 cubic feet per acre per year, at culmination of mean annual increment, for one or more tree species native to Deschutes County;
c. It does not contain Goal 5 natural resources;
Incorporating state and proposed local eligibility criteria for non-resource lands. Local criteria are sub (c), (d), (f)
Page 6 of 7
d. It is located in a fire-protection district or can be annexed into one;
e. It does not significantly affect a County or State transportation system consistent with Statewide Planning Goal 12;
f. If irrigation districts are impacted by a Nonprime Resource Lands designation, identify conditions of approval that should be placed on the property.
Policy 3.11.4 A Nonprime Resource Lands-20 zone provides procedures and standards for low density rural development that balances the public’s interest in the management of community growth with the protection of individual property rights.
Legal policy framework to develop a NPR-20 zone
Policy 3.11.5 The Nonprime Resource Lands-20 zone applies to eligible properties excluding those identified in Policy 3.11.12.
“
Policy 3.11.6 The minimum parcel size for the Nonprime Resource Lands-20 zone shall be 20 acres.
“
Policy 3.11.7 A single family dwelling or a manufactured home and their accessory uses shall be permitted outright.
“
Policy 3.11.8 Until a Nonprime Resource Lands-20 zone is adopted, property owners can continue as before and apply for a rezone from Exclusive Farm Use to Multiple Use Agriculture.
Ensures that existing non-resource lands process remains in effect until NPR-20 zone is adopted and
acknowledged
Goal 2 Resolve resource zoning restrictions applied to subdivisions platted prior to Statewide planning legislation taking effect in Deschutes County, Haner Park, and Section 36 in Township 22S, Range 10E
Nonprime Resource Lands – Committed Residential Use Policies
Policy 3.11.9 A Nonprime Resource Lands-10 zone provides procedures and standards for rural residential living environments and development that balance the public’s interest in the management of community growth with the protection of individual property rights.
Purpose statement
Page 7 of 7
Policy 3.11.10 A single family dwelling or a manufactured home and their accessory uses shall be permitted outright.
Customized eligibility criteria pertaining exclusively to six committed residential areas
Policy 3.11.11 The minimum parcel size for the Nonprime Resource Lands-10 zone shall be 10 acres.
“
Policy 3.11.12 The Nonprime Resource Lands-10 zone is available only for the following properties committed to residential uses because they are platted, parcelized, or partially developed: a. Meadow Crest Acres Subdivision b. Skyline Subdivision c. Skyline Subdivision, 1st Addition d. Squaw Creek Canyon Recreational Estates 1st Addition e. Haner Park f. Section 36, Township 22S, Range 10E
Legal policy framework to develop a NPR-10 zone exclusively to these six areas
Policy 3.11.13 Notwithstanding Policies 3.11.3.a.i. and 3.11.3.a.ii.4., lots in Meadow Crest Acres Subdivision and Squaw Creek Canyon Recreational Estates 1st Addition with 51% or more Class I-VI soils or intermingled with Class I-VI soils remain eligible upon demonstration that the property is unsuitable for farm use based on its land use history and whether a reasonable farmer would put the land to agricultural use.
Customized eligibility criteria pertaining exclusively to six committed residential areas
Policy 3.11.14 Notwithstanding Policy 3.11.3b., lots in Haner Park, Section 36, Skyline Subdivision, and Skyline Subdivision 1st Addition committed to residential uses that entirely possess a potential productivity of 20 or more cubic feet per acre per year, at culmination of mean annual increment, for one or more tree species native to Deschutes County remain eligible upon demonstration that the property is unsuitable for forestry use based on its land use history and whether a reasonable forester or farmer would put the land to forestry or agricultural use.
“
Policy 3.11.16 Until a Nonprime Resource Lands-10 zone is adopted, property owners can continue as before and apply for a rezone from Exclusive Farm Use to Multiple Use Agriculture.
Ensures that existing non-resource lands process remains in effect until NPR-10 zone is adopted and
acknowledged
1
Zechariah Heck
From: Ashley WilliamsSent: Wednesday, July 17, 2019 12:13 PMTo: Zechariah HeckSubject: FW: non-prime resource land
Ashley Williams | Administrative Assistant DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW Lafayette Avenue | Bend, Oregon
Mail: PO Box 6005 | Bend, Oregon 97708
Tel: (541) 617‐4707| www.deschutes.org/cd
Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: Steph Spencer <[email protected]> Sent: Wednesday, July 17, 2019 12:11 PM To: Planning Commission <[email protected]>; Board <[email protected]> Subject: re: non‐prime resource land
Dear Deschutes County Planning Commission- Although I am submitting my comments late, and past the deadline, I do hope you will consider the input. I believe strongly in the Exclusive Farm Use (EFU) zone. These protections were not intended to be dependent on the current use of land, but on preservation for future generations. Over time, development pressure has eroded these protections, and more than 50 non-farm uses are allowed on EFU. Despite our region's rapid rate of development, Deschutes and other counties have made many attempts to reclassify resource lands to further facilitate residential development in rural areas. This type of development is harmful to farmers and ranchers, and puts a strain on community resources when infrastructure like roads, sewer, schools and medical services need to be extended beyond urban growth boundaries. Our wildlife is also at risk, as much of the necessary habitat designation has been fragmented and the landscape permanently altered, which inhibits wildlife corridors forged by centuries of migration. Now, more than ever, the EFU policies need to be strengthened & enforced. Thank you for your time & attention to this matter- Steph Spencer Bend, Oregon
1
Zechariah Heck
From: Cynthia SmidtSent: Monday, July 15, 2019 4:01 PMTo: Zechariah HeckSubject: FW: Form submission from: Land Use Planning
From: Do Not Reply <[email protected]> Sent: Monday, July 15, 2019 11:27 AM To: CDD Planning <[email protected]> Subject: Form submission from: Land Use Planning
****AUTOMATED EMAIL - PLEASE DO NOT REPLY**** Incoming Land Use Planning Submission from Website Submitted on Monday, July 15, 2019 -
11:26am Submitted values are:
Name Sherie shirley Phone Number 5413833358 Email Address [email protected] Subject Property Address Bend city Subject Property Taxlot Number Relationship to the Property Citizen and resident of Bend. Details of your Inquiry I have read a few articles in the Bulletin on zone rules being changed. I've lived in Bend for over 27 years. And of course I have seen a lot of changes. After reading the articles red flags went up. What is the impetus behind the changing of the zone rules? What specific areas are you targeting? Fifteenth street has been changed dramatically since I've lived here. Where I ran my dog is now covered by Palisch homes. Now a new high school is being built on opposite side of the road. Hundreds of Ponderosa pines have been taken down. Once this was a refuge with many deer and rabbits. Now it is gone. But then you cross 15th to Temke, and you have reached Nirvana. People have acreage where they grow crops, ie. grass for hay. The land is beautiful covered with acres of green grass spotted with beautiful Ponderosas and aspen. It's what Bend should cherish, not to be turned over to developers and crowded homes causing a blight on this pristine area. This is our heritage, not to be degraded by money. A 4-3 vote isn't necessarily a very close vote to go ahead to recreate new zone laws to reclassify farmland. Does the Deschutes County Planning Commission really want to change our city into something we moved away from, ie. southern CA, Bay Area, Seattle, Cleveland, etc.? Urban sprawl is ugly..
2
Wild life should be considered too. Their habitats in Bend have been exponentially diminished since I've lived here. One no longer see herds of deer in this area off of 15th street. The city seems to give no regard to taking down our beautiful Ponderosa trees. They come down like weeds in our gardens. Think about generations to come. Again, why are you really thinking about changing the zone laws? Sincerely, Sherie Shirley
117 NW Lafayette Avenue, Bend, Oregon 97703 | P.O. Box 6005, Bend, OR 97708-6005
(541) 388-6575 [email protected] www.deschutes.org/cd
Minutes
DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS
AND
DESCHUTES COUNTY PLANNING COMMISSION JOINT MEETING
DESCHUTES SERVICES CENTER
1300 NW WALL STREET, BEND, OREGON, 97703
JULY 11, 2019 - 5:30 P.M.
I. Call to Order
The meeting was called to order at 5:31 p.m. by Chair Phil Henderson for the Board of
County Commissioners. All Board Members were present.
The meeting was called to order at 5:31 pm by Chair Dale Crawford for the Planning
Commission. All Commissioners were present.
II. Public Comments
There were no public comments.
Nicole Mardell, Associate Planner, provided Planning Commissioners with binders of
printed materials for the RLUIPA (Religious Land Use and Institutionalized Persons Act) and
Flood Plain Amendments. She said that Attachment 4 to these materials is very voluminous
and recommended that Planning Commissioners review these materials online. She said
that there is a website dedicated to these amendments.
III. Joint Work Session with Board of County Commission: US 97 / Terrebonne
Refinement Plan / TSP Amendment
Peter Russell, Senior Transportation Planner, provided copies of ODOT’s revised Burden of
Proof. He provided some background on the Terrebonne Refinement Plan and the history
leading up to the work session this evening. He introduced the consultant, Marc Butorac,
from Kittleson & Associates. Commissioner Henderson had some questions about the
exhibits. In response to those questions Mr. Russell said that we are intending to amend
the Transportation System Plan, and many of these materials provide background on the
process.
Marc Butorac, Senior Principal Engineer from Kittleson and Associates, provided a
presentation on the process to date, next steps, corridor needs, safety statistics and traffic
statistics. He said the process started with concepts and was narrowed to two alternatives,
a couplet and an increase to 5 lanes. Due to cost, access granting issues, alignment with
July 11, 2019 Planning Commission Minutes Page 2 of 5
adopted plans and other factors it was decided to move forward with the Couplet. He said
that the couplet was originally introduced in January, and since then there have been many
changes to the original design. He described the specifics of the design at each intersection
in Terrebonne. He said that future steps would be approval by the Planning Commission,
approval by the Board of County Commissioners and finally, approval by the Oregon
Transpiration Commission.
Commissioner DeBone had questions about what specifically was being proposed for
adoption. Mr. Burorac said that this is amending the TSP to specify that a couplet be added
to the Terrebonne Community. Currently the TSP identifies improvements should be made,
but does not specify those improvements. There was a brief discussion about the
scheduling of future hearings.
Chair Crawford and Chair Henderson had questions about outreach for the Public Hearing
in Terrebonne on the 25th. Mr. Russell said that the notice was sent all property owners
within 250’ of the couplet, representatives from Crooked River Ranch and other interested
parties, as well as being published in the Bend Bulletin. Mr. Russell reminded the
Commissioners that there was already funding for this project.
There was discussion about the longevity of this design. Mr. Burorac said this project was
designed to last until 2040 based on projected traffic increases, but he anticipates that it
will last longer than that. There was discussion about projected traffic on Hwy 97 over the
next 20 years, concerns with specific portions of the design, roundabout feasibility,
evacuation routes and focusing on tri-county highways overall rather than in a piece by
piece fashion.
There was a discussion on the purposes, location, dates and times of the hearings for both
the Planning Commission and the Board of County Commissioners. The parties in
opposition were discussed, noting that the revisions since January 2019 have satisfied
many concerns about the project. In closing it was decided to finalize that schedule after
the Planning Commission has had time to deliberate.
Chair Henderson adjourned the Board of County Commissioners meeting at 6:32 pm.
IV. Nonprime Resource Land Amendment / Deliberation
Chair Crawford reopened the deliberations for the Nonprime Resource Lands Amendment.
Zechariah Heck, Associate Planner, provided a re-cap on what was discussed regarding the
amendments thus far. Peter Gutowsky, Planning Manager, provided a reminder about the
Goal 5 resource analysis, and explained such an analysis is not required since no new uses
would be allowed in the 6 residentially-committed areas. Commissioner Swisher reminded
his fellow commissioners that there is a tabled motion regarding sending a letter to DLCD
to urge rulemaking for non-resource lands.
July 11, 2019 Planning Commission Minutes Page 3 of 5
Commissioner Hudson moved that the County extend the principle to allow NPR
rezoning of other EFU/Forest zoned land throughout the County based upon criteria
to be refined, a process and a policy to be determined suitable for inclusion in the
Comprehensive Plan revision. Seconded by Palcic.
Commissioner Hudson broke down the motion and his reasoning for the wording. Mr.
Gutowsky added that the intention for the amendment is to include the states criteria,
along with additional local criteria, into the County’s Comprehensive Plan. He requested
that the Commission consider the ramifications of the motion, and to clarify that
recommending this motion would not preclude an applicant from applying until this
amendment becomes final.
Mr. Heck asked for clarification of the motion as it pertains to the intended timing of
implementation of the policies into the Comprehensive Plan. Commissioner Hudson said
that it was not his intention to linger in adoption of the policies. There was back and forth
discussion amongst staff and the Commission about the intention of the motion, intention
of the amendment, timing of implementation, criteria to be established, criteria already
established, and agency feedback regarding the amendment.
Commissioner Swisher described the proposed criteria as he understood them. He
recommended that an added criterion focus toward areas closer to the UGB (Urban
Growth Boundaries) of cities. Commissioner Hudson replied to the statement saying he
perceived that the NPR 10 amendment was an opened and closed window, but the NPR 20
would need more criteria established. Vice Chair Kirby stated that proposed and listed in
the original packet discussed during the work session on this matter. However, she would
like to look at them more thoroughly for clarity and for the potential of adding criteria.
Commissioner Kieras said that her perspective is that the criteria were discussed, but she
would like to see more added. One of the criteria she would like to see added is that
properties should be located near a UGB. She feels this is important for a number of
reasons including providing county services. She added that this seems like a logical
approach and would help remedy the perception that the process has been considered ad
hoc. Commissioner Beeger wanted to clear up the perception that most growth occurs
within the UGB. He said that 47% of growth since 2010 has occurred in the rural county.
Commissioner Palcic says that it feels as though we are building the airplane as we are
flying it. He would like to start from the beginning and review the Comprehensive Plan in its
entirety to address some of these issues. He felt this will cause us to be more proactive
than reactive. Vice Chair Kirby wanted to clarify if he meant the County should stop
processing Comprehensive Plan amendments entirely. There was discussion about waiting
to update the Comprehensive Plan and how long staff should wait to do so. Director Lelack
said that an update is slated for initiation in 2021.
Staff described the initiation of amendments from the Board and the process that has
been underway for many years regarding these lands. Mr. Gutowsky said that staff was
July 11, 2019 Planning Commission Minutes Page 4 of 5
hoping to kill two birds with one stone by correcting the designations of the 6 residentially
committed areas, and direction from the Board to address lands that are not suitable for
farming or foresting but are zoned as such. There was discussion about the intent of the
motion, moving forward, and clarifying Board Direction.
Commissioner Hudson re-read his motion: Commissioner Hudson moved that the
County extend the principle to allow NPR rezoning of other EFU/Forest zoned land
throughout the County based upon criteria to be refined, a process and a policy to be
determined suitable for inclusion in the Comprehensive Plan revision. Seconded by
Palcic. Commissioners Palcic, Beeger, Swisher and Hudson were in favor. Chair
Crawford, Vice Chair Kirby and Commissioner Kieras were opposed. Motion passed.
Commissioner Swisher commented that he is ready to start the process, but would feel
more comfortable checking with the Board of County Commissioners beforehand.
Commissioner Swisher moved to set a timeline for the process and continued work
on this topic should the County Commission affirm that they would like to the
Planning Commission to continue. Commissioner Kieras seconded.
Vice Chair Kirby commented that she felt we are kicking the can down the road when we
already had direction from the BOCC, and that this could result in postponing the
recommendation for another 4-6 weeks. Chair Crawford expressed concerns about
continuing the discussion any further this evening. There was discussion about whether or
not discussion should continue tonight. It was decided to address other matters first
before further discussion on this topic.
The motion vote was as follows: Commissioner Palcic, Commissioner Beeger,
Commissioner Swisher, Commissioner Hudson, and Commissioner Kieras were in
favor. Vice Chair Kirby abstained. Chair Crawford was opposed. The motion passed.
Chair Crawford called for a vote on the tabled motion from July 9th: Commissioner
Swisher moved co-write a letter with the Board of County Commissioners
encouraging DLCD rulemaking regarding Non Resource Lands. Vice Chair Kirby
seconded.
Commissioner Swisher wondered if these topics would be brought up concurrently to the
board. Staff said they would. Commissioner Beeger asked if other counties had done this.
Staff said that there are other counties that have completed this process.
Commissioner Palcic, Commissioner Beeger, Commissioner Swisher, Commissioner
Hudson, and Commissioner Kieras were in favor. Chair Crawford and Vice Chair Kirby
abstained. The motion passed.
It was requested that staff provide a list of criteria for further deliberations on the
amendment. Some Commissioners requested this list in a table format.
July 11, 2019 Planning Commission Minutes Page 5 of 5
There was clarification for the formal removal of Policy 3.11.15 from the amendment. This
policy relates to Goal 5 inventories and resources and has been struck from the
amendment. There was discussion about the next steps, clarification of the motion, and
the intention of the Commission. The Commission has made a decision to approve
proposal 1 and ask for approval to research and develop additional criteria for proposal 2.
Commissioners explained that there was no intention to halt comprehensive plan updates
until a complete revision can be completed. There was discussion about the complexity of
this issue, the further discussion of criteria, and discussion on the letter sent to DLCD.
V. Planning Commission & Staff Comments
Director Lelack provided scheduling options for the next few meetings given the substantial
amount of topics. It was decided to continue NPR discussions on August 8th, unless more
time is needed in which case the Commission could consider a meeting on the 15th. Mr.
Gutowsky said that he felt staff let the Commission down for this topic and is looking
forward to a debriefing session to address areas of improvement. Commissioner Hudson
said that it has been an evolving project with a response that was not cut and dried. He
thinks that the staff did well, but believes there should always be a debriefing session.
Commissioner Palcic said he is excited that the Commission took action and did not wait
for complete attendance. Commissioner Beeger complemented his fellow Commissioners
on their flexibility. Commissioner Kieras said she felt this meeting was a very positive
experience. Even though she disagreed with some points she never felt uncomfortable.
Chair Crawford discussed some of the history surrounding the Terrebonne couplet and the
group of citizens there that began the process in 2017.
Next Planning Commission meeting will be on July 25, 2019.
There being no further business, the meeting was adjourned at 8:19 pm.
Respectfully submitted,
Ashley Williams
Administrative Assistant
All materials including (but not limited to) video, presentations, written material and submittals are subject to the County Retention
Policy; All items are posted and available for public viewing on the Deschutes County Meeting Portal. For further detail on this and
other meetings please follow link below.
https://deschutescountyor.iqm2.com/Citizens/Default.aspx
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June 22,2OL9
Deschutes County Planning Commission
Mr. Peter Gutowsky, AICP, Planning Manager
Mr. Zackariah Heck, Associate Planner
Dear Sirs/Madams:
This letter is a formal request for consideration to be added to the six areas that
had been partially planned before the county designated farmland in the "70ies.
The basis for this request also is because our property itself has very poor soil and
is too rocky to farm and too small for major, profitable grazing. And, to my
knowledge, was purchased on or before the six properties under consideration. ln
fact, these properties are split zoned, 3 acres in the City and 27 in the County. ln
fact, our deeds reference the lots of Skyview Terrace in their verbiage which was
the subdivision which my late father was planning on building out when he
purchased these properties in 1971.
ln 2004, Mr. Damian Syrnak, Bend City Planning, advised us not to spend money
to correct the split zoning issue because our properties, 24285 Dove Lane, Bend,
ARg77O2, would be brought into the City's next UGB expansion in 2008. From
2OO4 until 2008, we spent thousands of dollars for initial preparation for the
properties to be developed. This included installing power/electricity and water
through Avion along the entire eastern boundary of the properties. Attached are
the plot/site maps performed by Tye Engineering in 2005 and 2007 '
ln 2008, these properties were identified to be brought into the Urban Growth
Boundary. And, they were! However, they were dropped out in"the remand
process. I was at the majority of the planning meetings and witnessed Bend City
planning's response to LCDC during the last meeting which, I feel, is the primary
reason that the original plan was denied. Attached are County maps depicting '
our properties status with the inclusion into the UGB in 2008 and the
exclusion/retraction in 2015. These maps highlight our frustrations because they
exemplify the out right manipulation taken to exclude our properties from going
/
into the UGB. The most notable is establishing the new border of the UAR portion
along our northern property line! We have now become an island with Harold
Marken directly to the east of us, between/among the City/UGB and County five
acre parcels. The exception, however, are the two houses and forty-acre parcel
owned by Central Oregon lrrigation District.
My late father, AIbert R. Springer, purchased these 30 acres in I97I which were
originally part of the Skyview Terrace subdivision, and had plans to build out that
subdivision. Subsequently, the City of Bend established new criteria, later
modified by the State's SB 100, which changed the true nature of the intended
use of the 21285 Dove Lane properties, Bend, OR., based upon L0 or fewer acres
by the City, and L0 or more acres as determined by 58100 ( State). This also begs
our original concern in 1971 as well as with this proposed zoning change, "What
about 30 acres, in our case split zoned, which is ABSOLUTELY ABHORRENT AG
LAND, rocky terrain, poor soil and too small for profitable pursuits!
These properties are barren. rock bound. They are anything but farmland. I know
because I have tried to utilize the current EFU criteria for the last 1,9 years in order
to maintain the deferred tax base so that we do not lose the properties due to
excessive taxes! On average, we lose S8-t0,000 per year attempting mandated,
agricultural activities needed to show our 53,000 income and in order to protect
our existing water rights. The projected, net profit for the last two years was
estimated to be a negative 535,000, in cash outlay! This is due to my last attempt
for redemption through these arcane, discriminating laws, was to grow grass hay
on most of the acreage covered by the water rights.
ln this new project, we did not consider just how rocky and bad the soil is to farm.
After spending 525,000 plus for a PIVOT irrigation system, the person seeding the
project, Dr. Brian Laport, Ph. D. in Ag (soils expert), told me unconditionally that
that the land was not only too rocky with limited prime top soil, but that he
wouldn't even recommend it for grazing because 30 acres will not support that
activity. The individual who thought he could make a little profit also told me that
he will not attempt the grass hay after this year because the terrain is too rocky
and tearing up his equiPment.
These properties were initially identified and partially built-out as the Skyview
Terrace subdivision. To that effect, we have been holding on as best possible!
q/r
Dad died in 1994 and Mom in 1999. We all have (had) been exasperated and
frustrated. The late, Mr. BillTye, a personal friend, with whom I attended Bend
Sr. High, tried to farm these properties in the late '70ies. He gave up because of
the rocky, soil conditions as well. He also advised us and drew our plot maps for
development in the earlY 2000's.
ln conclusion, Bratton AppraisalGroup, LLC, estimated the Dove Lane properties'
value if in the UGB to be 51+5,000 to 5195,000 per acre. That was in 2004!
property within the UGB, 625 hundred feet southwest of us, sold recently,2OtT ,
for 51,375,000 for 9.3 acres. They developed and sold over 40 homes in less than
a year and a half.
So, one can appreciate our concerns about being included in your new
designation. At age75, our health is waning, and our monetary extravagances on
a seemingly endless project is waning at best. The family has dealt with this for
48 years.
I have included various documents to substantiate my letter and highlight the
information addressed. I shall be happy to address/answer questions accordingly.
Our hiatus over the last 10 years in pursuing remedies to our situation has been
greatly affected by death, illness and concomitating issues, therein.
Thank you for your time and consideration. And, special thanks to Mr. Gutowsky
for his enduring patience over the years in trying to alleviate these travesties for
the betterment of our communities
Sincerely,
Richard L. & Georgia A. SPringer
Springer Family Trust
oJ
a\
RecoRptNc REQUESTED BY AND
WHEN RECORDED MAIL TO:
David H. RushPeters, Rush, Habib & McKennaP.O. Box 3509Chico, CA95928-3509
DESCI{UTES COUNTY OFFICIRL RECORDS
INRNCY SLRNKENSI{IP, COUI{TY CLERK
ililil]l
200?-29920
$41,00
6/29/2007 l0:09:3{ f,l'l
,{\vL
D-D Cnt-l Stnr20 JS
ft!.00 Ofl.00 t10.00 $5.00
,
Man- Tax STaTEMENT To:
Richard L. and Georgia A. Springer, Trustees
3358 Canyon Oaks TerraceChico, California 95928
WARRANTY DEED
For no consideration, RICHARD L. SPRINGER and GEORGIA A. SPRINGER, husband
and wife, with right of survivorship, convey and warrant to RICHARD L. SPRINGER and
GEORGIA A. SPRINGER, as Trusties of the Springer Family Trust dated May 14, 2007, all of
Grantors, interest in all that real property situated in Deschutes County, State of Oregon, described
as follows:
PARCEL 1: The southeast Quarter of the Northwest Quarter
(SE74NW%) of Section Two (2), Township Eighteen (18) South,
Range Twelve ( 1 2) E,W.M., Deschutes county, oregon, EXCEPTING
THEREFROM a lract descqibed as follows: A portion of the
SE'/NW% of Section 2, Township 18 South, Range 12 E.W.M.,
described as follows: Beginning at the Northwest corner of the
$E74NW% of section 2, Township 18 south' Range 12;thence South
89 degrees 34',2A" F;ast2l9.75 feetto apoint; thence south 70 degrees
26' 30,J West 267.33 feet to a point; thence North 0 degrees 15' 10"
East 1 53.06 feet to the point of beginning.
PARCEL 2: Thatportion of the Southwest Quarter of the Northwest
Quarrer (SW74NW%) of Section Two (2), Township Eighteen (18)
South, Range Twelve (12) E.W.M., Deschutes county, oregon, lying
Easterly from the Easterly boundary of the Plat of Skyview Terrace'
ALSO Lots Two (2), Three (3), Four (4), Five (5), Six (6), Seven (7),
Eight (8), Nine (9), Ten (i0) and Eleven (11) of Block one (1); Lots
Two (2), Three (3), Four (4), Five (5), Six (6), Nine (9), Ten (10) and
Eleven (11) , Twelve (12), Thirteen (13), and Fourteen (14) in Block
Two (2);Lots One (1), Two (2), Three (3), Four (4), Five (5), Six (6)
and seven (7) in Block Three (3); and Lots one (1), Two (2), Three
LLI
Page 1 of 3
(3), Four (4), Five (5) and six (6) in Block Four (4), all in SKYVIEW
TERRACE, Deschutes CountY, Oregon'
PARCEL 3: The Southeast Quarter of the Northwest Quarter(SEl/4NWll4) ot Section Two (2), Township Eighteen (18) South,
Range Twelve (12), East of the Willamette Meridian, Deschutes
County, Oregon, excepting therefrom atract described as follows:
A portion of the SE 1 i4NW 1 /4 of Sect ion Z,Township I 8 S outh, Range
I2,Eastof the willamette Meridian, described as follows:
Beginning at the Northwest corner of the SE1/4NWI14 of Section 2,
Township 18 South, Range 12, East of the Willamette Meridian;
thence South Bg'34'2A" East 219.75 feet to a point; thence South
70"26, 30" West 267.33 feet to a point; thence North 0o 15'10" East
153.06 feet to the point of beginning, also except therefrom the South
410 feet.
Together with that portion of the Southwest Quarter of the Northwest
euarrer (SW1/4NW ll4) of Section Two (2), Township Eighteen (18)
South, Range Twelve (12), East ofthe Willamette Meridian, Deschutes
County, Oregon, lying Easterly from the Easterly boundary of the Plat
of Skyview Terrace, except therefrom the south 410 feet.
It is Grantors, intent to transfer any andall interest of the Grantors in the properly described
above to the Springer FamilY Trust.
Executed on May ls ,2007, at Chico, California'
'7 f ,....;
{ *,/u"--J'" .{. ',!,
RICHARD L. SPRIN
GEO IA A. SPRINGER
Page2 of 3
STATE OF CALIFORNIA )) ss.
COLINTY OF BUTTE )
on May ll, roor. before ^", Saru ''7"-il/,5--- , Notary Public,
personally upp.*-d zucHARD L. SPRI].IGER and GEORGIA A. SPRINGER, persona'llyknovin
,+o-me-(or proved to me on the basis of satisfactory evidence) to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the persons, or the entity upon
behalf of which the persons acted, executed the instrument.
WTTNESS my hand and official seal
NOTARY C
6 Page 3 of 3
SECTION 2 T,185. R.12E. W.M
DESCHUTES COUNry1" = 400'
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Section 2: Growth Area Yield & Benefits
OverviewPolicy and implementation decisions affecting Bend can be estimated and predicted, but not
calculated definitively. The information provided in this analysis is rooted in the best available
projections and predictions. Ultimately, however, it is the Council's judgment that determines
the benefits that are most important to the community.
This section describes some of the land use attributes associated with the Areas of Analysis
(Exhibit 3) discussed in this report. The Areas of Analysis are subsets of UGB expansion areas
that require City Area Planning prior to development (unless property owners perform their own
Master Plan on 40 or more acres). The Areas of Analysis also include a subset of UGB
identified opportunity areas, which are locations the City re-designated in the core areas of the
City through the UGB adoption.
This section describes land use development assumptions for the Areas of Analysis at different
years, SDCs revenues resulting from development according to land use development
assumptions, and annual city property tax revenues resulting from new development.
lJousing & JobsUnderstanding the potential growth yield of different areas of the UGB requires a discussion of
how development projections were created, and how to use them appropriately. The following
explains the approach to making land use projections for 2018 associated with the UGB
adoption, and for 2040 associated with the ILUTP. Land use estimates form the basis for
subsequent SDC and tax revenue estimates. The 2028 and in some cases 2040 land use
estimates are used in public facility system modeling'
l-and [-!se Assumptions" 2028
CIvervlewThis section summarizes the growth assumptions (and the rationale behind them) that underlie
the analysis that supported the expansion of the UGB.
The UGB analysis was based on control totals for population and employment projections
through 2028. This means that estimated capacities are not build-out or maximum allowed
capacities. They reflect reasonable but conservative (in the context of ensuring adequate land
supply) assumptions about likely development within the planning horizon (through 2028). The
overall population projection of 115,063 residents by 2028 was developed using the coordinated
population forecast developed with Deschutes County, as required by state law.
Most growth assumptions were linked to the Comprehensive Plan designation, though in some
cases there were variations to account for master plan requirements, approved and platted
subdivisions, and other special cases.
As described below, while the capacity assumptions are reasonable and appropriate as
averages across many properties within a given plan designation, the outcomes on specific
,t4t"\1
properties may vary based on site conditions, developer or property owner preferences, and
other factors. The UGB analysis addressed the inherent uncertainty about future development
by using weighted averages and reasonable default assumptions on many issues where
precision is not possible.
The UGB rules also require cities to assume that nearly all land that is buildable and not already
developed will develop within the planning horizon unless there is evidence to support an
assumption that development is highly unlikely within the planning horizon. In reality, some
properties may not develop within the planning horizon at all'
Growth Aneas
The UGB analysis projected population, housing, and employment growth spatially throughout
the existing City limits and in the newly approved UGB expansion areas. The UGB work
addressed growth in three different types of areas somewhat ditferently:
. "Opportunity areas" were identified within the existing City limits where there was either
significant vacant acreage or the potential for redevelopment. Potential for growth by 2028
was evaluated in detail for these areas, particularly where changes to plan designations
and/or zoning were adoPted.
. UGB expansion areas were identified outside existing City limits for new development.
Nearly all represent "complete communities" with a mix of housing, employment, and civic
uses (e.g. schools and parks). All expansion areas were assumed to be fully developed by
2028.
. ln the balance of the existing City limits, modest incremental infill, reinvestment, and non-
residential redevelopment were assumed, based on zoning and historic trends. , and due to
changes in the Bend Development Code adopted with the UGB expansion.
The Opportunity Areas are shown in Figure 4. The Expansion areas are shown in Figure 5.
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Expansion Areas10 - Northeast11 - East Hwy 2012 - DSL Property13 - The Elbow14 - The Thumb15 - Southwest16 - West17 - Shevlin18 - OB Riley19 - North Triangle
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