Support a beautiful, bountiful Oregon for generations to ......Protecting Central Oregon’s Natural...

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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


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

8 of 8

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.


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.


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


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


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.


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


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.


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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J--:dayorl[ry ,zo!!,nvSu

Notary Public

Court of the

No.

ln the

STATE OF OREGONlor the

COUNTY OF DESCHUTES

AFFIDAVIT OF PUBLICATION

From the oftice of

Altorney for

Filed

By

@OFFICIALSTAMPALVSHIAVALDEZ

NOTAhY PUBLIC€frEGOI.IcoMMtsstoN no. m14

MY COT4MISSION EXPIRES OCIOBER 21,M2

File No. 247-19-000265-PA

Board of County CommissionersNovember 6, 2019
