Planning Commission - Regular Meeting

Ms. King, can you hear me?

Yes, we can hear you, hearings officer.

Okay, wow, that's loud and clear. I better turn my volume down. All right, thank you.

Are you ready to go?

Yes, we are. Thank you. Okay. Good afternoon. We will now go on the record. The time is just about one o'clock on July 30th, 2026. This is a hearing time and place for the Deschutes County file numbers 247-26000. There's four zeros and 99-BA. and 247-26-00100-ZC. My name is Greg Frank, and I'm the hearings officer who has been assigned to this matter. Before we turn to the particulars of this hearing, I would like to turn things back over to Ms. King, who will describe how this process is going to work today, both electronically and if you're in the hearings room. Ms. King?

Great. Thank you, hearings officer Frank. Good afternoon, everyone. For the record, again, my name is Hallie King. I'm a senior planner with Community Development. And the item before the hearings officer is a plan amendment zone change for approximately 7.79 acres with a request to go from agriculture to rural residential exception area, and then a corresponding zone change from exclusive farm use to MUA 10, multiple use agriculture. I'm going to talk through the hearing procedure this afternoon. So first I'm going to explain the hearing format and how we'll be taking testimony this afternoon. I do want to note we included testimony time limits in our notice of public hearing. That's standard. You'll see here applicant has up to 30 minutes, any agencies 10, the general public 3, and any applicant rebuttal 10 minutes. However, I do want to note that the hearings officer has discretion to eliminate or modify those as they see fit. So after staff gives a brief presentation on the application, we'll move into the testimony portion where the applicant will have the opportunity to go first. Then again, if there's any agencies in attendance, they would follow. Then we would move into just general public. Those that are in support of the application would testify, any in opposition, and lastly, anyone neutral to the application. Then at the end of that, the applicant has the opportunity for rebuttal. And then if there's any closing comments from staff, that would be provided at that time. For testimony and testifying at today's hearing, this is a hybrid hearing, so we have both in-person participation opportunities as well as remote. And we do ask for folks giving testimony, please state your first and last name and your mailing address for the record. This is so we can capture you in our notification list for future recommendations, decisions, and future hearings on this matter. For those in person, again, we will invite you up here to the tables in the room where you will provide your testimony. I have a sign-up sheet as well on the table if you wouldn't mind writing down your name and your mailing address just for making sure we get the right spelling. And then again, please state your name and mailing address for the record. For those that are joining us on Zoom this afternoon, you must use the Zoom link that's provided in the notice of public hearing. We will utilize the raise hand function on Zoom. If you're on a computer, it's the hand image there below, and that will notify our producer that you would like to speak. And then if you're calling in, you will dial star nine if you would like to raise your hand. If anyone has written testimony this afternoon they would like to hand in, you can just hand that directly to myself. Or if you're attending remotely, you can email that in to my email address here on the screen. The hearings officer and I are responsible for running an orderly and respectful hearing. And at this point, if there are any objections to the hearing format, please let us know. If you're in person, please raise your hand. And if you're on Zoom, please hit the raise hand button. So again, calling any objections to the hearing format. I'm not seeing any raised hands in person and none on Zoom. Okay. And with that, I'm going to turn it back over to hearings officer Frank for some additional public hearing information.

Thank you, Miss King. Before we get going any farther, I see there's no attendees on Zoom, at least when I looked at participants. Can you kind of give me a feel for who's in the hearing room? How many?

Absolutely, yes. We have two folks here representing the applicant and the property owner, and then four additional folks in the room that may want to provide testimony this afternoon.

Super. Okay. I'm going to stick with the county's recommended time limits. But if it moves along fairly briskly and it looks like somebody has a need to speak longer, then I'm going to certainly modify those. And so if you need more time, just let me know. And I'll address that when you do that. So as Ms. King described, we're following the normal hearing procedures in the county code and I will provide sufficient opportunity for everyone to participate at an appropriate time. I'd ask for your patience as we make sure we get through each of the steps that she just outlined. The application being considered is through what's called a quasi-judicial process. I will consider only the factual evidence that it's in the record, and I will then apply those facts to any relevant provisions of the county's comprehensive plan and land use regulations. The standards and applicable criteria relevant to this hearing were identified in the public notice announcing the hearing and they were also set forth in the staff report. The public notice and staff report are posted on the county website and they were also available from the staff upon your request. It is important that you direct all testimony to the standards and applicable criteria. If you believe that a criteria applies that was not listed, you may address that unlisted criterion. However, I urge you to also explain why that criteria must apply and to do so with such specificity so that the other participants may respond and so that I can address that issue in my recommendation. The failure to raise an issue with enough detail to enable me or other participants to respond precludes, in other words, kind of stops your ability to appeal that issue to the Oregon Land Use Board of Appeals. Also, the failure to raise a constitutional or other issue relating to any proposed conditions of approval with enough detail to allow me to respond precludes. to the issue in my recommendation precludes an action for damages in circuit court. As I just noted, I serve as a county land use hearings officer and have been assigned in this particular matter. In that role, it's my job to be a neutral decision maker. Thus, while I have a contract with the county to serve in this role, I'm obligated to remain impartial. I do not represent the county's interests or the interests of any particular county. To that end, I will state that for the record that I do not have any relationship with the applicant, don't know the applicant, and I'm not aware of any connections that I may have with other participants in this proceeding that would prevent me from remaining impartial. I have communicated with staff, but only to discuss particulars of today's hearing, and those particulars talk about scheduling, what records, what documents are in the record, but I don't talk about whether or not somebody should win or lose, and I don't talk about the substance of the application. I do not have any ex parte contacts to disclose. It's my obligation to preside over this hearing in an efficient manner. Before we begin and go any farther, I'm going to ask Ms. King to let me know, and I'm going to ask you to respond. Does anyone who is in the hearing room or otherwise have any objections that I continue to proceed to be the hearings officer in this case? So if you have any objections to me, let Ms. King know.

Hearings Officer Frank, there are no raised hands in person, and I don't believe any on Zoom.

All right, hearing none then. I will turn the, well, before I do that, I just want to let you know, and this particular subject matter of this particular case has been the subject matter of quite a few prior land use hearings that I've been involved with, but not only myself, but the other hearings officer, as well as the county commission. So this is not a topic that is brand new to me. With that in mind, I want you to be aware of what I kind of looked at before we get into this. I have reviewed the staff report in some detail. I've reviewed applicants' burden of proof as an overview. I have not studied it in detail, but I have certainly looked at it in an overview fashion. I also want you to be aware Based on the staff report, well, let me skip over that. I received an email notifying me from Ms. King yesterday that something new was in the record. And that's all she said. And I took a look at that. It happened to be a letter with attachments written. from attorney Liz Fancher. I want you to know that I have reviewed three of the four documents that are included in that package fairly carefully, and that includes the letter from Ms. Fancher, a request, a June 5th, 2026 letter from Oregon Land, Central Oregon Land Watch to the Land Conservation Development Commission, And a good cause hearing to shoot county petition for enforcement. It looks like a staff report. But that's dated June 11, 2026. I've reviewed those documents pretty carefully. There's also a very, I think it's 110 page document. document from Oregon Land Watch, which is the petition, and I honestly did not look at that in great detail. I did a very quick, brief overview of that, but I haven't studied that in detail, okay? So now you know that. I've also, based on a, I want you to be aware, hearings officers in Deschutes County have are sent copies of decisions or recommendations from other hearings officers in Deschutes County. Recently, I think it was dated July 21st, 2026, another hearings officer for Deschutes County submitted a recommendation on a similar topic as we're discussing today. It deals with 68589 Highway 20, Sisters, Oregon. It was issued by Tommy Brooks, the other hearings officer. And I did actually review that fairly carefully. And it raised a point or raised case that was also raised by Ms. King and her staff report, which was a recent, a relatively recent Central Oregon Land Watch versus Deschutes County and BCL report. The Luba decision, and I have actually reviewed that pretty carefully and I'm familiar generally with what the Land Use Board of Appeals has held in that matter. So those are kind of the things that I have looked at. So I'm not completely sure. unaware of some of the issues that are surrounding this particular case, but with all of that in mind, your testimony, your facts, your evidence, your argument, whether you be the county, whether you be the applicant, or anyone in opposition, all of that factors into this overall process. This is an evolving area of the law that requires a fair amount of diligence on both applicants, opposition and the county's part, and mine as well. So I look forward to all of your testimony. We're going to start with the staff report. Ms. King will be given the staff report. Following that, I would ask the applicant or applicants represented to come forth and give me your testimony. Ms. King.

Thank you hearings officer Frank. Um, so, uh, yeah, I'm gonna kind of go into a brief staff report here. Just overview of the application. Um, everyone here I'm sure is familiar with the, the subject property addressed as 62150. Hamby road outlined here in red, um, it borders highway 20, um, to the south and Hamby road to the west. Again, the property is about 7.79 acres in size and about 0.27 miles from the City of Bend urban growth boundary, which is on the very bottom of this picture outlined in blue, is the edge of the city limits and the urban growth boundary. Bear with me here as my slide catches up. There we go, so the property also as discussed throughout the application is with entirely within the landscape management combining zone associated with the goal five resource of the highway 20 scenic corridor. And I've got an overview here just to kind of capture the surrounding lands and zoning. Again, the staff report goes into detail. You can see here in blue is the City of Bend city limits and urban growth boundary. The orange color is the exclusive farm use zone. And then the yellow is the MUA 10 zone, multiple use agriculture. Just to the northeast of the subject property are some larger tracts of land that are existing development includes utility and solar panel arrays. And again, to reiterate the request of the applicant, they are requesting a comprehensive plan amendment to change the designation from agriculture to rural residential exception area and a concurrent zone change from exclusive farm use to multiple use agriculture. The application does not request any exceptions to any statewide planning goals. The applicant, specifically regarding Goal 3, which pertains to agricultural lands, the applicant provided an Order 1 soil study, which found that the property is predominantly consisting of Class 7 and 8 soils, about 71%. And again, just to reiterate, the application in this zone change would not change the applicability of the landscape management combining zone. And due to the fact that that is a Goal 5 resource, the applicant provided an EC analysis indicating that the change in zoning would not introduce any conflicting uses and that the continuation of the landscape management overlay will continue to protect that scenic resource. And I wanted to highlight for the hearings officer, as hearings officer Frank also alluded to, after the staff report was published, I received three additional comments in support of the application, and those are all uploaded to the record. And then we also received an email and some attachments from Liz Fancher, and she included, as hearings officer Frank mentioned, some information and additional sort of considerations for the hearings officer as it pertains to a pending enforcement process with the Land Conservation Development Commission related to two that are tied to agricultural lands and goal three, and then one looking at goal 14. And so as nothing new here introducing, but just noting for the hearings officer and the applicant, a question that we have in the staff report for the hearings officer, and that is whether, you know, how Goal 14 applies to this application based on some of these recent LUBA opinions that look at what is called the Schaefer and Curry County test to ensure that zone changes don't result in the urban use of rural lands. And with that, I want to remind everyone the application record is published at the website here. This is the shortened URL link. This is on the Deschutes County Community Development website. We also have record materials available via DIAL and Oregon EAT permitting by searching the application file number. And with that, that concludes my brief staff report. Before we transition over to the applicant's presentation. I'm also available for questions from the hearings officer.

Thank you, Ms. King. I'm going to hold my questions until the end of the hearing. So this would be the time and the place for the applicant or applicant's representative to come forward. Please recall that we'd like first and last names. Spell them if you can. I'm notoriously bad at spelling names. And so if you'll do that, that's most appreciative. And give us your mailing address. So if the applicant or applicant's representative will come forward, I'd appreciate that. and identify yourself for the record.

Okay.

So my name is Craig Gales, C-R-A-I-G-G-A-L-E-S, and address is 62615 Erickson Road, Bend, Oregon 97701.

And my name is Charles Hemingway, C-H-A-R-L-E-S-H-E-M-I-N-G-W-A-Y, And do you need my home address? Yes, please. Okay. 59939 Minnetonka Circle, Bend, Oregon 97702. Thank you, Mr. Hemingway. Who's going to speak first?

I'm going to speak first and speak to what we're seeking. We are seeking approval of a comprehensive plan amendment to change the designation of our 7.99 acres property from agriculture to rural residential exception area and a corresponding zone change to rezone our property from exclusive farm use EFU to multiple use agriculture MUA 10.

So Mr. Gales and I will be going through a series of slides that we prepared. To begin with, we do have many slides, which with much information and should, due to time constraints, we not get through them all. We ask that this PowerPoint presentation be included as written testimony. But can we go to the first? Oh, I need to go to the first slide.

Mr. Hemingway, can I interrupt you for a real brief second? Ms. King, just to confirm to the applicants and the applicants representative, this PowerPoint presentation will, in fact, be part of the public record and available to both myself and anyone interested.

Yes, that is correct.

Thank you. Okay, Mr. Hemingway, go ahead.

We want to put this application in context to begin with. and why we're seeking this change. In particular, we want to point to ORS 197.783 concerning local approval of emergency shelters and some highlighted language. In particular, a local government shall approve an application notwithstanding various provisions of state law or any statewide land use planning goal rule of the Land Conservation and Development Commission or local land use regulation and zoning ordinance if the emergency shelter is located in an area zoned for rural residential use.

Mr. Hemingway, can I interrupt you just once more? And I apologize deeply for it, but you just told me that the application was for a plan amendment and zone change. The application, as I understand it, is not for an emergency shelter. And I'm not sure how this information about emergency shelters is relevant. Could you just put that in context for me, why this is relevant to the plan amendment and the zone change request?

Let me go on to the next several slides. Okay, go ahead, sir. So why we are seeking this change, we wish to use the land to create an emergency shelter which requires the property to be rezoned rural residential. The property is currently zoned EFU. In DCC Chapter 18.16, exclusive farm use is not considered rural residential. Only two county zones qualify as rural residential. Rural residential, RR10, and multiple use agriculture, MUA. We opted for MUA10 because there is an applicable conditional use in MUA10 that is not available in RR10. because there are other applications pending to rezone properties totaling more than 200 acres around our property to MUA 10. And since this property is only 7.99 acres, for purposes of consistency in zoning, we opted for MUA 10 rather than RR 10. But then What we want to point out is the county involvement in this issue that we believe makes this statute pertinent. We want to thank the county for its strong support to date, but as background, there is a state law that awarded a million dollars to Deschutes County and the cities of Bend, Redmond, Sisters, and Lapine to coordinate efforts to strengthen the local homeless response system. This entity is called the Coordinated Houses Response Office, or CRO, and it was created and placed under Deschutes County, and this $1 million was placed with Deschutes County. The initial CRO executive director was a county employee. Subsequently, Crowe approved $25,000 of these funds to pay for this rezoning application, and Deschutes County Finance transferred the funds to Community Development. In a December 17, 2025 vote by the County Commissioners supporting Crowe's action, The county required the Gales Family Trust to enter into a grant agreement for the $25,000 with the county and enter into a restrictive covenant with the county that for 15 years the property could be used only as an emergency shelter under ORS 197-783. So this is a question, a case of applying ORS 7.782 and 7.783 in Deschutes County. And how does this fit in? The staff report states at page 10 that ORS 197 and 782 and 783 have not yet been applied in Deschutes County. And that is somewhat the case, but applicant notes that the county has created an emergency shelter managed camp in Redmond, the East Redmond managed camp on county land and in May 2026 selected an operator. Also Veterans Village on the Deschutes County Sheriff's Campus was authorized under a predecessor statute to 197783 and Veterans Villages on county land within the the city limits. And so this application is a case of first impression. Zoning was not an issue with Veterans Village of the East Redmond Managed Camp, but the use applicant seeks here appears to be the first case in the state of Oregon where in order to take advantage of ORS 197, 782, and 783, a change in zoning is necessary. Applicant is also dealing with a circumstance where county staff acknowledges that applicant's property was wrongly zoned, EFU, and we note the staff report page 16 where staff generally agrees with the applicant and finds that there's been a change in circumstances since the property was last zoned and a mistake was made in zoning of the property in question. So we're in kind of a quandary where had the property not been originally rezoned incorrectly, we might not have been dealing with this question at all concerning the applicability of Section 783. But be that as it may, With regard to the current status of the applicant's land and this application, applicant agrees with the county staff that notwithstanding the foregoing that I've discussed concerning 783, it's staff's opinion that this application must be evaluated on its own merits and independent of future goals and uses. And I think that's probably what you were getting to hearing Officer Frank. But applicant believes that on its own merits, Rezoning the subject property from EFU to MUA is warranted. An applicant believes that the application and supplemental information the applicant has provided, much of which is referenced in the staff report, establishes by substantial evidence that MUA is the correct zoning. Staff has provided us with a staff report, which we think agrees mostly with our efforts, but has some additional questions that they'd like you as the hearing officer to address. The applicant has identified 11 instances in the staff report in which staff requests that the hearing officer make findings, and so we'll take each of those slides in turn. The first question that comes up concerns a restrictive covenant that was mentioned in the staff report at page 10. We'd like to point out that Well, the restrictive covenant referred to is listed in the staff report as a private agreement between Crow and the Gayle's Family Trust and that it was not relevant. We believe it is and like to point out that Crow was not a party. The grant agreement for the $25,000 to pay the cost of the rezoning application is actually between Deschutes County directly and the Gales Family Trust. And the restrictive covenant that it is entered into between the county and the Gales Family Trust, and it has been signed by the county administrator. So these are a little bit hard to read, but... The fourth paragraph down under recommended motion requires a list of requirements for the terms of the restrictive covenant. And you'll note that this is an official county action from December the 17th, 2025. And then the next page over is the grant agreement. And under paragraph 2, which is hard to read with the last sentence or so, says that in return for the grant, the county requires a restrictive covenant. So the importance of the restrictive covenant and the grant agreement on applicant's case here is that the restrictive covenant requires that the only use authorized by the county is for use as an emergency shelter per ORS 197, 782, and 783. An applicant has identified only one applicable use under MUA 10 that satisfies this requirement. Accordingly, we're asking you as the hearing officer, as the county requested also, that the restrictive covenant be officially recognized as a public agreement between the county and the applicant, not Crow, and that the restrictive covenant is relevant to the subject application. So now we'll go on to some of those other questions that were raised in the staff report. We've just given you here the purpose statement from the MUA zone and ordinance, but we want to go on and talk about that we believe the applicant has demonstrated the change in classification is consistent with the purpose and intent of the proposed zone classification, the question that was asked in the staff report at page 12. We note that applicant's application at page 8 and 9 addressed this question, but applicant further reveres that the entirety of the materials in the administrative record from the application, the exhibits, the supplemental information, etc., Demonstrate cumulatively by substantial evidence that the change in classification is consistent with the purpose and intent of the proposed zone classification to wit. That we are preserving the rural character of the impact area of the Goal 5 resource that is the scenic corridor between Bend and Milliken. That the potential development the applicant proposes is consistent with the character and capacity of natural resources in the area. that conserving open spaces and protecting natural and resource areas is done, and that maintaining and improving the air quality, the air, water, and land resources of the county is applicable to what the applicant is seeking to do, and that it provides for an orderly and efficient transition from rural to urban land use. The next question that the county asked is, will the zoning presently serve the public health, safety and welfare considering the following, the availability and efficiency, of providing the necessary public services and facilities. Applicant's application at page 9 and 10 addressed this question, but applicant adheres that prior to development of the subject property, the applicant will comply with applicable requirements of the Deschutes County Code, including but not limited to potential land use, building, and wastewater disposal permits. Staff noted that regarding adequate public services and facilities, specifically electricity and water, that the applicant did not provide will serve letters for these service providers. Applicants' application discussed public services and facilities at pages 5 and 10 of the application. An applicant would refer you specifically to the hearing officer to paragraph J at page 5. Applicant has had informal conversations with these service providers. Applicant was not of the understanding that at this point in the process it was necessary to provide will serve letters, but that as part of the development process, should resulting be granted, applicant would provide will serve letters at that time. Should the hearings officer determine in making specific findings on this criteria that will serve letters are critical at this juncture, Applicant requests that the record be held open so that will serve letters will be provided or the alternative that the hearings officer require that is part of the de novo hearing before the county commission that will serve letters be provided at that at that point. The next question was, will the zoning presently serve the public health and welfare, considering the following, that the impact surrounding land use will be consistent with specific goals and policies contained within the comprehensive plan, noted at staff report page 15. at the time of the applicant's submission of this application the county commissioners had in september 2025 approved rezoning of mua 10 of approximately 240 acres surrounding applicants property which was appealed to luba and you saw on the slide that miss king presented that there was an area in yellow that she large area she referred to as as efu That was land that had been in this county action rezoned to MUA 10, but based on the BCL's decision, is back now to being EFU. On June 26, Luba remanded that action back to the county, resulting in leaving the land that was the subject of this action zoned as EFU. But despite the BCL case, applicant appears that given its small size and the nature of the potential development, the record establishes that any impacts on surrounding land use will be consistent with specific goals and policies within the comprehensive plan. The next question was that the hearing officer determine whether the applicant's proposed ESEE analysis complies with the requirements of OAR 660-023-040 and whether the requirements of this policy have been met, as was indicated in staff report at page 27. We believe that, well, we point out that this provision specifies four steps in order to comply with the ESCE decision process, identifying the conflicted uses, determining the impact area, analyzing the ESCE consequences, and developing a program to achieve goal five. APPCA discussed these four steps in not one, but three separate ESSE analysis documents, each of increasing complexity. An initial ESSE analysis that focused on only one MUA10 conflicting use because that conflicting use is the one that applicant believes will satisfy the requirements that the county has imposed on the applicant based on ORS 197, 782, and 783. A second ESEE analysis entitled a supplemental ESEE analysis was requested by planning staff and we provided one which addressed all 14 uses permitted outright and 32 conditional uses. A third ESSE analysis was requested by staff that also addressed 14 uses permitted outright and the 32 conditional uses, but in a columnar format and amplifying on the provisions of OAR Chapter 660 pertaining to the ESSE inventory process. All three are a part of the administrative record and the applicant requests that the hearing officer find that requirements of this policy have been met. Next was that the hearing officer determine if the applicant's ESEE analysis complies with the rule that development within the quarter mile overlay zone does not excessively interfere with the scenic or natural appearance of the landscape as seen from the road, and that the existing landscape will not be altered by removal of vegetative cover. We stressed the language there, does not excessively interfere. In the first ESEE analysis, This concerned the semi-public conflicting use, which is the use that we believe permits establishment of the emergency shelter specified in 783. That ESSC analysis addressed screening of the property from view of travelers along Highway 20. shielding any buildings in the development from view, retaining existing trees and planting other trees to create a foliage barrier, and creation of an attractive physical plant to maintain the attractiveness, scenic views, and openness of the subject property. The second ESE analysis at page 45 of that document incorporated by reference the information contained in the first EEC analysis. But then that third ESE analysis at page two discusses screening. At page eight discusses developing a program to achieve goal five. At page 45, when discussing negative social consequences common to all conflicting uses, discusses the potential that might be involved in the diminishing of visual quality. And the analysis points out that the impact area will be shielded from view by trees, vegetation, and that having good visual quality enhances the recreational experience. Further, at page 69 of the third ESE analysis, under negative environmental consequences common to all conflicting uses, the analysis stresses the need for maintaining and enhancing the vegetative cover along the roadways to enhance the visual quality associated with travel corridors, specifically mentioning the impact area that abuts the Highway 20 scenic corridor. And finally, at page 96, under negative energy consequences common to all conflicting uses, the analysis recognizes that the applicant's aim is to keep the impact area shielded from view with trees and vegetation along Highway 20 as it skirts the subject property. Then the staff report asked that the hearing officer determine if the applicant's analysis appropriately determined the impact area, and this was at staff report page 37. The impact area is defined at OAR 660.023.0103 as the geographic area with which conflicting uses could adversely affect a significant Goal 5 resource. The first ESG analysis involving semi-public conflicting use stated at page one that applicant believes this definition means the impact area is limited to the applicant's 7.9 acre tract that lies within the landscape management roadway. The third EEC analysis at page seven stated that consistent with land watch Lane County versus Lane County, 2019 LUBA decision, that the applicant proposes that the appropriate impact area in that case was, that following that case, that in our case, the appropriate impact area is the 7.9 acres that comprises the applicant's subject property and is the subject of this application. Applicant did not provide an analysis of what other properties should be considered despite the relatively flat topography. Applicant defined to consider a larger impact area given the vegetative cover along Highway 20 scenic corridor abutting the subject property that screens other properties from view, but which is going to be enhanced during the development process. And we note that the existing vegetative screening will be significantly enhanced, and the applicant has planned fencing along the subject property abutting Highway 20. And then following on, staff asked that the hearing officer determine if the applicant's EASCC analysis complies with the requirements to limit each conflicting MUA 10 use subject to restrictions of OAR 660.023.0405B and page 9 of ordinance 92050. And that particular paragraph of the ordinance states specifically, that identified conflicting uses should be balanced so as to allow the conflicted uses but in a limited way so as to protect the resource to a desired extent. Applicant appears that both the second ESE analysis and the third ESE analysis that are part of the administrative record established by substantial evidence that all identified conflicting uses enumerated and discussed were balanced so that the Goal 5 resource would be protected to the desired extent. In particular, the applicant makes reference to pages 8 and 9 of the applicant's third ESSC analysis as to how the positive and negative consequences can be balanced through clear and objective development standards. And next, The staff asked the hearing officer to determine if applicants ESE analysis complies with the rule in OAR 660-023-0501 that for each resource site local governments shall adopt comprehensive plant plan provisions and land use regulations to implement decisions made pursuant to OAR 660-023-0405. And we'd like to point out that this provision allows local governments to determine whether to allow, limit or prohibit identified conflicting uses for significant resource sites. applicant has proposed, based on the ESEE analysis which applicant has provided, that the conflicting uses should be allowed in a limited way, which protects the resource site to a desired extent. Applicants' understanding is that should this rezoning be approved in implementing the 5B limitations, that the county would then pass an ordinance pursuant to OAR 660-023-0501 that implements decisions made pursuant to OAR 660-023-0405. Accordingly, that is what applicant meant in stating that applicant request that the ESEE analysis be included by reference in DCC Chapter 23.01 and Section 5.12 of the Comprehensive Plan. meaning that no other amendments to the DCC or the comprehensive plan would be required in order to implement the county's decision pursuant to OAR 660-023-0405. Applicant apologizes to staff for lack of clarity in this language and for confusion the language appears to have created. And if applicant's understanding is incorrect, applicant looks forward to being apprised of the correct interpretation. um now staff also asked the hearing officer to confirm that the subject property is not necessary to prevent farm practices to be undertaken on near adjacent or nearby lands staff notes that there must be relevant distinctions between the subject property there there may be relevant distinctions between the subject property and the property involved in the LUBA decision that we refer to as the 710 properties case, where this level of analysis was necessary. Applicant believes that there are relevant distinctions. In the 710 properties case, that case involved nine lots totaling 710 acres. Applicant's property is 7.99 acres. The 17 acres sought to be rezoned were predominantly surrounded by EFU zoned lands with large scale farm and agricultural uses apparent. When applicant's application was submitted, the 240 acres surrounding the applicant's property had been rezoned from EFU to MUA 10. Due to the remand of the BCLC case by LUBA on June the 26th, those properties remain EFU pending the county's decision on remand. However, the approximately 240 acres of EFU land surrounding applicants and 7.99 acres have no large scale farm agriculture use as apparent, which were the case in the 17 acres case, and we believe that's a highly relevant distinction. Finally, in the 710 properties case, Batisters William and Elizabeth Buchanan own a 37.51 acre parcel that adjoins the subject 710 property on which they run a cattle grazing business. The Buchanan submitted a business plan to the county that proposed to use the 710 property for seasonal grazing as part of an expansion of their business. And you've got the case cited that discusses this. In the applicant's case, the only nearby property currently receiving farm tax deferral deferral is at 622565 Hamby Road owned by the Allen Mary Morrison Trust. Applicant visited recently with the Morrison's. An applicant asked the Morrison's whether they might need to rent or lease the applicant's property for purposes of storing farm equipment or housing animals. Mr. Morrison stated that he has sufficient acreage to accommodate all his farm equipment and livestock and sees no current or future need for applicant's property. So we believe that these are relevant distinctions that we've made to satisfy what the staff report has requested. Next, the staff asked the hearings officer to review the BCL LLC case for its applicability to this application or compatibility with Goal 4 urbanization. The land use versus the Chutes County and BCL case was decided June 26, 2026. The BCL tract involves four tax lots totaling approximately 240 acres. The BCL tract is located approximately a quarter mile east of the Bend urban growth boundary. Surrounding uses include two churches, an electrical power substation, a 95-acre city park, lands developed with solar array panels, and a number of smaller parcels developed with residential uses. The county hearings officer recommended approval, and the Board of Commissioners agreed in a de novo hearing on January 28, 2026, and issued an ordinance approving the proposed comprehensive plan and zoning amendments. Land Watch filed a LUVA appeal citing four assignments of error, only one of which is the subject of staff's concern. Land Watch's third assignment of error at page 25 of the BCL decision contended that the county's action violated statewide planning goal 14 urbanization. That third assignment of error It deals with the Oregon Supreme Court interpretation of Goal 14 that prohibits urban use of rural land. And that's the Curry County case cited there. Land Watch argued that in order to comply with the Curry County case in Goal 14, the county should have done an evaluation of whether development allowed under the new REA plan designation and associated zoning would allow for urban use of rural land. Luba held that the county must demonstrate that the proposed redesignation and rezoning is consistent with Goal 14, applying the relevant curry factors. And we stress relevant. Luba determined that the two relevant curry factors at issue were the density factor and proximity to the UGB. And so what did Luba say about these two factors? Regarding the density factor, Land Watch contended that the county's action was a way to circumvent the requirement in the comprehensive plan 3.3.1 that the minimum parcel size of new residential parcels shall be 10 acres. The county concluded that the property would be developed as a cluster development, which would allow a two-acre minimum lot area, or a planned unit development, which did not specify minimum lot sizes so long as the planned unit development was 40 acres with 65% open space. Further, under MUA zoning development, either as a cluster development or a planned unit development, that would not be considered under MUA 10 as being urban in nature. Luba agreed with Land Watch that remand was necessary for the county to conduct more adequate findings that would evaluate the actual or individual lot sizes allowed under the DCC. But insofar as... Yes. Yeah, as far as the proximity to the urban growth boundary, Luba noted that Goal 14 has long been understood to be concerned with intensification of rural lands near urban growth boundaries that could adversely impact or undermine the effectiveness of the urban growth boundary. land watch noted that the subject property is a quarter of a mile from the bend urban growth boundary and argued that residents seeking proximity to urban amenities would be drawn to the subject property because of its proximity to the urban growth boundary undermining the effectiveness of it BCL argued that all rural residents have to rely to some extent on urban services and amenities because such services and amenities are usually not available in rural areas. But Luba found that to allow a relatively higher density cluster development or a planned unit development would be the functional equivalent of creating a suburban neighborhood undermining the effectiveness of the urban growth boundary and requiring a Goal 14 exception. But we believe there are distinguishing characteristics between this application and the BCL case. First, applicant believes that Goal 14 is not implicated and that none of the conflicting uses applicant has identified involve an urban use of rural land or would result in urbanization. But the key distinguishing characteristic involving both the density factor and proximity to the urban growth factor is the term residential. The argument with density concern DCCP 3.1 and the minimum parcel size of 10 acres versus the minimum lot sizes that would be involved in the VCO property that would be developed as cluster developments or a planned unit developments, residential uses. The discussion with proximity to the urban growth boundary involved rural residents, cluster development, planned unit developments, and the potential creation of the functional equivalent of a suburban neighborhood. Residential. Applicant is envisioning no residential development, and the most applicable conflicting use applicant has found to satisfy the requirements of a county directive restrictive covenant is semi-public use. And we'd also point out that there is the matter of scale. 740 acres versus applicant's 7.99 acres. We also believe that ORS 197.783 is relevant. And again, with regard to the impact of Section 783, I would point out that the highlighted language, notwithstanding, any statewide land use planning goal, rule of the Land Conservation and Development Commission, or local land use regulation, zoning ordinance, or comprehensive plan, if the emergency shelter is located in an area zone for rural residential use, then we believe that ORS 197-783 is relevant. Applicant believes that Goal 14 is not implicated based on applicant's preceding analysis of the BCL case. And if this application is approved, applicant is required by the restrictive covenant to use it solely as an emergency shelter under ORS 197-783. ORS 197-783 allows this use notwithstanding Goal 14 or a comprehensive plan. And so we've covered the material we believe was addressed for questions asked in the staff report. And that would conclude these slides. And I'll turn it over to Mr. Gales.

Like Chuck had mentioned earlier, as far as our lawyer and the county is already doing what we're thinking about, what we'd like to do. And our whole goal here is to work with the county as a private sector and try and figure out how we can work together with the local county and state and, uh, city, um, which we've been in front of, of all been in front of all with this, with our land. And we're just, we're just really trying to look at, uh, is there another solution, another way to move forward to help out this emergency shelter and whatnot? I've, I've been fortunate. I've been able to work with, uh, the homeless or people in need, whatever, however you want to say that, for the last three and a half years. And it is a real concern and it's a real problem in not just Central Oregon, but throughout throughout the nation, throughout the world. And that's our whole goal here is to be able to establish from the private sector, working through, like I said, the county, city, state to hopefully go to that next step and be able to work together and establish what we're looking to do here.

Thank you, sir. Anything further, Mr. Hemingway or Mr. Gales? Nothing further, sir. Okay, I'm going to perhaps have you come back up later after all the testimony prior to having final comments from the applicant or from the staff. But at this point in time, I'd like to hear the rest of the testimony, kind of like I said to the staff. I'd like to hear all the testimony before I get into what I think might be appropriate questions, if I have any at all. So thank you so much for your testimony. Is there anyone here who wishes to testify in support of the application? And if so, you're going to come on up. You're going to give us your first and last name and you give us your mailing address, please.

And when wyman ly and the w i e m a n. I live it. To 0, 3, 9, 8, penhollow lane and band. I support allowing this zone change. When I first heard of Craig's plans, I looked up the history of the property and saw that it seems to have never been irrigated or farmed, as I'm sure you know. From his soil tests, it appears to not be valuable for farm use. And I think that the restrictive covenant prevents it from being urbanized. And I think that with Craig's intended use of the land, it has net positive impact on the on Deschutes County by reducing the illegal camping in other areas and providing a safe, clean environment. Thank you.

Thank you so much. I appreciate your testimony. Anyone else wishing to testify in support of the application who is in favor of this application? I don't see anybody jumping up. Is there anybody who is neutral? I never had anybody get up when I asked that. All right. All right. This will be time and place for anyone in opposition. Is there anyone here who would like to testify in opposition?

Hearings Officer Frank, we're not seeing any raised hands on Zoom either.

Okay, then what I'd like to do is perhaps, and Miss King, if you object, please say so. My biggest focus right now, because it seems to be kind of a linchpin of the application and the testimony relates to the relevancy of the emergency shelter conditional use of the property. And I asked that question right up front of Mr. Hemingway, is how does that relate? I think it was 197 to 783 is his particular focus. My understanding is there is absolutely no application for conditional use. I'm not even sure that you can, and you can enlighten me on this because you know better. Can a person file an application for a comp plan change, zone change, and a conditional use as concurrent applications?

In hearings, Officer Frank, that was a question for staff or the applicant?

No, it's a question for staff. I kind of like to get staff's position on this before I get to going back to the applicant.

Yeah, yeah. So ORS 197, 782, and 783, as I mentioned, the community development has not received an application invoking those statutes at this time. And so it's not clear exactly how an application under that statute would be processed. We don't have an example of that coming forth before the county. So, yeah, again, we don't have an application that's not part of the review of this zone change. So at this point, it is unclear to staff how someone invoking that statute, how that would exactly be processed, but certainly we If it came before us, we would, you know, coordination with legal counsel need to establish how that would go based on the language and the statutes.

Okay, the other question I have, it's not totally out of left field, but it's bothered me over the last couple applications that we've been dealing with is, is it possible to condition, place a condition in my recommendation or recommended condition to the commission that they restrict the use of the property to an emergency shelter, for example?

I think that would be, I mean, ultimately up to the ultimate decision makers if they were to consider such a condition. Yeah, I don't know if I have a fully formed answer on that. It is a bit of a complicated question and determining what use category, something like that would come in is challenging and maybe difficult to determine at this point without a full development application before the county.

Okay, thank you. All right, I'm going to come back to you and let you have your final comments in just a few minutes. Mr. Hemingway, I'm going to turn it back to you. Based on the comments we just heard from Ms. King, I'd like you to kind of go back over and clarify for me why it is that I could even consider the restrictive covenant that you referred to and the potential conditional use as an emergency shelter. So Mr. Hemingway, you're back on.

Thank you, Hearing Officer Frank. I guess first I'd say that setting aside the applicability of 783, we believe that we have established by substantial evidence that notwithstanding 783 or the restrictive covenant that this land qualifies to be rezoned from EFU to MUA 10.

But having said that- I understand that and that was not my implication in the question. But you raised right out of the blocks the issue of 782 and 783. And I questioned you right out of the blocks about why I should even consider that since there's no application filed.

And we have struggled with that as well. We have dealt with the requirement that the county has imposed. And they've placed that restriction upon the applicants. And you asked why, or perhaps what staff thought, how you could limit this conditional use. And the response would be, this matter was reviewed by county council. And it was county council that drafted the grant agreement and county council that drafted the restrictive covenant that imposed these restrictions. And so we're stuck with that, that apparently under the guidance from the county, this is legally permissible. But again, we point out that this is a case that we think of first impression, where the first case that's come along in the whole state, where in order to create an emergency shelter under 783, it requires a zoning change. And so we believe that brings together the applicability of this application with that particular state statute. We're just having to dance with who brung us, so to speak, and are fully prepared to deal with the county as it moves forward to resolve any of these particular issues that that might arise that might flow from additional questions raised by staff or that might come from your decision as the hearing officer. But again, we firmly believe that substantial evidence has been provided by us to establish that whether this should be considered at all, that this land was improperly zoned way back when and now should be zoned in accordance with what applicant believes would be the most appropriate use. I'm not sure I answered your question, but that's the best I can give it a go.

I appreciate the best you've given it a go. I do appreciate that. I'm caught in a quandary here, quite honestly. And quite honestly, I think I alluded to it when the hearing started. This is an evolving area of the law. And taking both parts of your answer, the otherwise we've qualified part of the answer, irrespective of the 197, 782, and 8783 part, whether you've qualified, that part, the agriculture, the Goal 14 issues are evolving as we sit here. And so those issues, and it seemed to me that there were some issues that I'm concerned about. And I think if you had an opportunity to read a number of the prior cases, one of which was Destiny Court. That happened to be my recommendation to the county commissioner, which they agreed with and got sent back. So I am no... stranger to seeing the law evolve before my eyes. And probably the biggest concern I have, and I put it in Destiny Court, actually, and I think Ms. Fancher actually agreed with me in her letter, is that Goal 14 is quite honestly, I believe is not even relevant to this based on the county's or the LCDC approval acknowledgement of the plan. I think they acknowledged that MUA is a, is a rural use but uh as much as i tried to convey that in destiny court and my subsequent decision oh maybe three or four weeks ago um i'm not sure i've i've made much headway and from my perspective and i'm obligated to follow the law and in my best interpretation of the law so i i Based on your discussion and your analysis of Goal 14, I'm not sure you've made it there yet. I'm just trying to be forthright with you. You asked that the record remain open if there was a certain... uncertainty on my part or a question on my part. This is an area that, based on the BCL case, based on the recent decisions, and based on the information contained in Ms. Fancher's submission, I think could be better discussed both by you and the county and addressed with more specificity. So I'm just making that suggestion. You don't have to follow that. Because if you do follow that, it basically bumps back my recommendation by anywhere from two to three weeks. So I understand that. There was an additional point which is escaping my mind right now. But I am concerned that based on the recent land use decisions, even with the restrictive covenant, which I think you told me was 15 years. Is that correct? Okay, what happens after the 15 years?

Okay, there's no, it reverts back. Any use that might be applicable under MUA 10?

And that's my concern. Okay. Do you understand where I'm coming from with that comment? Yes, I have. believe you that if in fact I consider the restrictive covenant, we've put a restriction on non-residential or just residential uses for a period of 15 years. If you define residential uses as houses and lots and subdivisions or partitions or whatever it happens to be. But I'm also concerned that perhaps after the 15 years, then all of a sudden I've made a recommendation that allows those other uses. Quite honestly, I'm not particularly fond of Luba's argument that cluster developments and PUDs lower the density or lower, you know, increase the intensity of use to urban uses. I dealt with that in DestinyCorp and my comment was, and I still believe it's actually true, but I'm somewhat constrained by Luba, is that what you apply for is what we decide. And so I think that cuts both ways for you. What you applied for was the comp plan change and zone change. Not a conditional use. So I think when I when you go back to my destiny court decision, you're stuck with with those two applications. And that's what I decide. And I don't decide it in the context of what might happen with a conditional use application. And I believe that also applies to my analysis when I was looking at destiny court is. I agreed with, at that point, with the applicant that they had not applied for a cluster development. I agreed with the applicant that they had not applied for a PUD and that if, in fact, an application for a conditional use or a PUD or a cluster development came in, those would be decided. And I think it's clear that a decision by the county and those decisions cases, the cluster development PUD, would have to deny those, okay, would have to deny those if there were less than 10 acres, right? So it kind of cuts both ways. And I just want you to appreciate that, that I'm concerned, number one, about the restrictive covenant and it ending, but I'm also concerned that I'm not very much persuaded that your application is for conditional use. Therefore, I can't really consider it. The approval factors, the criteria just aren't there, and I shouldn't be considering those. And so I'm going to leave it up to you if you want additional time to consider what I've just said. You can ask for that record to remain open if you want me to consider what's in the record to this point, which I fully am happy to do, then I will do that. It is 100% your decision.

We only received the information from Attorney Fancher yesterday. So we haven't had the opportunity to review it very closely. And so we would request that you allow the record to remain open to permit us to go through that and prepare a submission to staff or to you concerning our thoughts and how we feel this factors in with this application.

So noted. With that, then, I'm going to turn it back to staff. Any final comments, staff? Don't go away. I'm going to come back to you about timing and things like that. So you can stay right where you are, but I'd like to turn it back over to staff for any final comments.

No additional comments. Hearings Officer Frank, thank you.

Okay, so would you talk to us about open record period and suggested dates and then I'm going to turn it back over to Mr. Hemingway to make sure that there's no conflicts with that.

Absolutely. So our the county procedures ordinance requires a minimum of a 14 day open record period consisting of seven days for new evidence and testimony and seven days of rebuttal. Those are minimums though those two seven day periods. So I would defer back to the applicant and the hearings officer if you would like to request longer. for either of those periods. You could do 14 and 7, 21 and 7. It's really how much time the applicant would like, provided the hearings officer is in agreement.

Thank you, Ms. King. Mr. Hemingway, the floor is yours.

Regarding my own personal schedule, I have some vacation time coming up. No, no, no, no. You can't do that. I have to check with Mr. Gales about his schedule. 21 days would be better than the 14 days. Okay.

Here's what we normally do with that. And then we have a seven-day open record period for new evidence. We have a seven-day open record period for rebuttal evidence. And I'll talk about that in a sec, but it's rebuttal evidence. You can bring in evidence, but it's only in response to what got submitted during that first seven days. And then the final seven days is the applicant's final argument. Only you get that. Okay, so anyone can provide evidence during the first seven days. Anyone can provide evidence in rebuttal of what happens that first seven days, but only you can provide the final argument. And I've been doing this for an awful long time. And what I often say to folks is, yes, I appreciate your oral testimony. But what I see in writing, I tend to read two or three or four times. And so I find what's submitted by you, in other words, the PowerPoint today, to be incredibly helpful. Okay. Appreciate that. I find the Safford book to be incredibly helpful. And I find the written evidence or rebuttal evidence or your final argument also to be really important. And I promise to always read it once. Always read it once. I can't promise you that I'll read it the full four times, but I will promise you that I will read it once. So is the 777 acceptable to you? Yes, sir. Okay. And is the 777 acceptable to staff?

Yes, that's fine for staff hearings, Officer Frank, I do just want to clarify and apologies if I didn't explain it correctly. But so yeah, the new evidence and testimony, you would have seven days for that from today. I just I know the applicant, I heard them mentioned 21, maybe 14 and seven, I just want to make sure with your time on vacation that that would that would work for you.

Let's double check with Mr. Hemingway. Mr. Hemingway, does that make sense to you?

I'm leaving tomorrow.

Would you like to have 14, seven and seven? Yes. Yes. Yes, sir. Okay, cool. Thank you, Ms. King. I appreciate that clarification. It just went over my head. So it's great that you brought that up. And I wasn't trying to disrespect your vacation, Mr. Hemingway. That was meant as humor and obviously didn't work very well. So Ms. King, you want to give us some dates and how we do this stuff?

Let me pull this up. So I'll pull up share my screen to have those dates on where with me here. One moment. So, OK, so I've got everyone I have my calendars out to I just want to make sure we get this right. So the applicant, the new evidence and testimony is a two week, a 14 day time period starting today. That would take you to Thursday. The deadline would be Thursday, August 13th at 4 p.m. And then following that would be another seven-day period for any rebuttal to anything coming in under new evidence and testimony. The deadline for that would be Thursday, August 20th at 4 p.m. And then the final legal argument is forwarded to the applicant only is another seven days following that, concluding Thursday, August 27th at 4 p.m. I believe I got that right, Mr. Hemingway.

I'm looking at my wall calendar and it does appear to be correct, but I certainly stand to be updated by Mr. Hemingway. Mr. Hemingway, the proposal from staff is a proposal consistent with what you've asked for is new evidence must be in by 4 p.m. 8.13. The rebuttal evidence must be in by 8.20 p.m.

the final argument by 827 does that make sense to you yes sir it does okay miss miss king you want to talk about how we get that stuff in yes absolutely so um we um all all submittals again the deadline is four o'clock pm um and so you will be um sending your submittals to myself i also have my supervisor um anthony regini copied here as well i also have a vacation planned next week So I just want to make sure if anything comes in next week, it gets to both of us. I'll be back again following that on the 11th, but just making sure if you can include both of us on your submittals. And so these are all digital, digital submittals only. Please note, again, we don't take information from cloud storage links or Google Drive or any type of shared device. It would need to be, you know, PDF attachments to emails. And then all the submittals, again, 4 p.m. is the deadline. Just to note, if you are sending a large email, try to get it sent a bit before 4 p.m. just to make sure we receive it, especially if it takes some time over email. So sending it in before then. And that, oops, let me go back. And that's it. Again, it'll be addressed to me. I'll update the website with this information, with these open record dates. And if you have any questions, definitely reach out to me and we'll get all those uploaded. And then at the conclusion of the open record period, we'll notify hearings officer Frank that the record would be closed and he can proceed with his review and recommendation.

Mr. Hemingway, any questions, comments, concerns about the open record period?

I would defer to Mr. Gales on that. At this point in time. I'm sorry. Mr. Gayles said not at this point in time. He has no questions.

Okay. All right, then. With that, then, I want to express my appreciation for the courtesy of everyone who testified and participated in the hearing today. Mr. Gayles, Mr. Hemingway, Ms. King, I appreciate, and excuse me, the other individual, Mr. Whitehead, I got it. Sorry. I see you and you're waving at me and I apologize. I can remember a lot of stuff, but I forgot that and that's disrespectful. So I apologize. I appreciate all your testimony. I appreciate it being respectful. and polite, that always makes the process go better because we don't have the animosity and the contests going on in the hearing room. So thank you for participating at this point in time. Unless I hear something further from Ms. King, I'm going to close the hearing. Anything further?

Nothing else, hearings officer. Thank you.

Okay, we're going to close the hearing. Thank you all for participating. Bye-bye.

Thank you.