Planning Commission - Regular Meeting

Bye.

Yes. Very good. Did you want to speak to me. Yeah. Read that. Start and split.

What is two pages. Very fast. Depending on speaking.

Some of you guys have filled this out, but not everybody. Phil, did you write down your name?

I'm on there.

And hearings officer, we're just confirming that everyone in the room who wanted to sign up to testify had a chance to.

Great. And while we're waiting, can you confirm that you can hear and see me?

We can. Thanks.

Thank you.

Okay, thank you, hearings officer. I believe we're ready to begin.

All right, and can you confirm that it's recording? Because I don't see that on my end.

It is recording.

Great, all right. So let's go on the record. The time now is 1.04 p.m. This is the hearing for Deschutes County. File numbers 24726431-PA and 432-ZC. My name is Tommy Brooks, and I'm the hearings officer in this matter. Please note that there are two separate hearings scheduled today. At this point, we are beginning with the hearing only for Deschutes County file numbers 431PA and 432ZC. If your interest is in the other application, which is file number 483-ZC, you'll need to wait until that hearing starts, which will be after this hearing. If you are online, I think you are able to use the same Zoom link for the second hearing. but only the testimony and evidence that are submitted during each hearing process is going to be considered. So if you have an interest in both hearings, you need to make sure you participate in both hearings. Before we turn to the substance of the hearing today, I'm going to turn things over to Ms. Stewart to describe how the participation process works.

Good afternoon. For the record, my name is Audrey Stewart, Associate Planner with Deschutes County Planning. Here we are. The item before the hearings, officer, is a comprehensive plan amendment to change the designation of the properties from rural residential exception area to rural industrial and a corresponding zone change to rezone the properties from floodplain and multiple use agricultural to rural industrial. Today's hearing will proceed as follows. First, staff will explain the hearing format and how to testify at today's hearing, followed by a brief presentation on the application. The county has established time limits for testimony as follows. 30 minutes for the applicant, 10 minutes for public agencies, 3 minutes for the general public, and 10 minutes for the applicant's rebuttal. However, the hearings officer can modify or eliminate these time limits. When the testimony portion of the hearing begins, the applicant will present first, followed by agencies, next those in support, then those in opposition, and finally anyone neutral to the applicant's request. Afterwards, the applicant will be afforded an opportunity to present rebuttal testimony. And finally, staff can make closing comments. This is a hybrid public hearing with both in-person and remote participation. Before starting your testimony, please provide your first and last name, as well as your mailing address. For in-person participants, if you wish to testify, please add your name to the sign-in sheet, which I'll use to call up participants for their testimony. After your name is called, please come to one of these tables in the front here before beginning your testimony. For our remote participants, if you want to testify, you must be logged into Zoom or have called in using the Zoom dial-in option. When hearings officer Brooks asks if anyone attending remotely would like to testify, you'll need to use the raise hand feature to notify staff. To do this, you need to press the raise hand button on your computer or smart device, or if you've called in, dial star nine. In addition to oral testimony, if anyone has written testimony to submit, please hand it to me. If you're in person, please hand it to me after your oral testimony. And if you're participating remotely, you can submit your written testimony via email to me at Audrey.Stewart at Deschutes.org. Hearings Officer Brooks and staff are responsible for conducting an orderly hearing. Any testimony or behavior which is inappropriate will be addressed and may result in that member of the public being removed from the hearing. Are there any objections to the format of the hearing? If you're attending remotely and have an objection, please use the raise hand function. Seeing none, I will turn the hearing back over to hearings officer Brooks.

All right. Thank you, Ms. Stewart. The process just described is the normal hearing procedures that are set forth in the county's code, and I will make sure to provide sufficient opportunity for everyone to participate at the appropriate time. The application is being considered through a quasi-judicial process. I will consider only the factual evidence that is in the record. 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. They are also set forth in the staff report, both of which are posted on the county's website, and they're also available directly from staff upon request. It is important that you direct all of your testimony to the standards and applicable criteria. If you believe a criterion applies that was not listed, you may address the unlisted criterion. However, I urge you to also explain why the criterion must apply and to do so with specificity so that other participants may respond and so that I can address that issue in my decision. The failure to raise an issue with enough detail that it enables me or other participants to respond to that issue precludes your ability to appeal that issue to the Land Use Board of Appeals. Also, the failure to raise a constitutional or other issue relating to any proposed conditions of approval, again, with enough detail that allows me to respond to the issue of my decision, will preclude an action for damages in circuit court. As I just noted, I serve as the county's hearings officer in this matter, and in that role, my job is to be a neutral decision maker. Thus, while I have a contract with the county to serve in this role, I am obligated to remain impartial, and I do not represent the county's interests or the interests of any participant. To that end, I'll state for the record that I do not have any relationship with the applicant, and I'm not aware of any connections I may have to other participants in this proceeding that would prevent me from remaining impartial. I have briefly communicate with staff, but only to discuss procedural aspects of today's hearing and not the substance of the application, I do not have any ex parte context to disclose. So as we kind of figure out how much time we need for today i'd like to ask if we know have a good count of how many people have signed up to testify, both in person and online.

And hearings officer, we have seven people signed up in person, and then on Zoom, the applicant has their hand raised, and then there's one other Zoom attendee besides the applicant.

Okay, thank you. And we will typically take the, except for the applicant, we'll take the in-person testimony first, followed by the online testimony. Before we begin, does anyone wish to challenge my ability to hear this matter or to challenge the county's jurisdiction over this matter?

No one in person or on Zoom is raising their hand.

All right, so we will proceed and I will turn it back to Ms. Stewart to deliver the staff report.

Thank you, hearings officer. I'll now provide a brief overview of the subject application. The properties are located at the intersection of 85th Street and Tumalo Road. The four properties are each approximately 1.1 acres in size and were created as lots in the first addition to Whispering Pines Estates subdivision. The properties are zoned floodplain, with the exception of one portion of tax lot 2900, which is zoned MUA 10. The applicant requests a change in the zoning designation from floodplain and multiple-use agricultural to rural industrial. They're also requesting a concurrent change in the comprehensive plan designation from rural residential exception area to rural industrial. The application materials state that the new zoning will better reflect the longstanding use of the four properties and correct the floodplain zone, which is overmapped on these properties. This application was submitted on June 30th as part of a larger application package that also included a floodplain to MUA 10 rezone for 17 surrounding properties. On July 31st, the application package was split into two separate zone change files, and the subject file is specific to the four properties that the applicant would like to rezone to rural industrial. There are several terms I want to clarify as we discuss the floodplain zoned portion of these properties. The floodplain zone in Deschutes County is unique because it's a base zone. Therefore, modifying the boundary of the county's floodplain zone requires a land use application for a zone change. The special flood hazard area is mapped by FEMA and is commonly referred to as the 100-year floodplain. An individual property owner can work directly with FEMA to revise the special flood hazard boundary through a letter of map change. In this case, the area went through a letter of map change with FEMA in 2015, and FEMA's flood insurance maps were updated to reflect this. However, the boundary of the floodplain zone does not automatically update to reflect the changes to the flood insurance maps. Eight public comments were submitted in opposition and three public comments were submitted in support. The comments in opposition cited the increased traffic and noise that new industrial uses would create, safety concerns with Tomolo Road, impacts to the residential character of the neighborhood, reduction in property values, and impacts to groundwater. The comment from Central Oregon Land Watch also included procedural concerns. Commons in support cite the historical use of these properties, the increase in property values despite surrounding commercial and industrial uses, and the direct road access onto Tumalo Road. All materials received as of 12 p.m. today have been uploaded, but I do want to note I received one hard copy letter that I haven't uploaded yet. And with that, staff is available for any questions from the hearings officer.

All right, thank you. I do not have questions yet for staff, so we can proceed with the applicant's presentation.

Good afternoon. I just want to make sure everybody can hear me okay.

I can hear you.

All right. Good afternoon for the record. My name is Ken Katsaroff. I'm the attorney for the applicant, which is the Fagans, along with another slew of folks. The application, sorry, my address is 1425th Avenue, Suite 3400, Seattle, Washington, 98101. I have my colleague Daniel Robinson with me in the room. We do have a PowerPoint. It's fairly brief. and I'm gonna need his help to kind of navigate that. Let's make sure that's running okay. If Daniel, you can elevate that or Audrey.

One second hearings officer, we're gonna pull it up from a thumb drive on staff's computer.

While we're, okay, there we go. I wanted to address real quick this procedural splitting of the applications. I just want to be transparent on that. That was a request by county staff. There was no change to either of the file or the application itself. It was merely for record keeping to have the files be separate. So that one set of files and those numbers would correspond only to the MUA 10 zone change. from floodplain based zone. And the second set would also include the plan amendment change as well as the zone change. So there's no other change other than county record keeping side of things. No change in files, no change in any other information that had been provided to the county. I know that Central Oregon Land Watch had submitted a comment letter about that and an additional question on it in a letter they submitted today. Nothing was changed. It was merely just a procedural record keeping request from the county that the applicant said, sure, let's just split them apart. I don't really have anything else to say on that. I just wanted to start with that. Okay, so I'll try to be as brief as I can because I think that this request as well as the second one shouldn't be super complicated. Let's go ahead and go to the next slide. We're seeking to change a few properties essentially from what is a base level comprehensive plan designation of RREA or Rural Residential Exception Area and then a floodplain zone, which is a base zone. And that's going to get important in just a second. because unlike what would typically be seen in other jurisdictions related to flood zones, this is not an overlay. It is a base level zone and that's important and it's gonna get important as I go through this and as I respond to LandWatch's comment letter that was filed today. Go ahead. This is a picture of the property. There are four lots that are legally created lots that were done by a plotted subdivision. That's not necessarily important other than we have to determine that there are lots of record in order to proceed in any application except for zone changes and plan amendments. But that's what it looks like. That is a current or relatively current photo. What's important here is that these properties are largely have been in the same state for a number of years. I don't remember what the next picture is, but go ahead and move slides, please. I'm having problems getting my own PowerPoint version up, so I apologize. Let me see if I can restart my PowerPoint again. I can't, but okay, well, we'll just continue. I apologize, Mr. Brooks. Basically, this is the overlay that shows the flood zone as it was originally mapped on the property before this 2015 remapping was done with FEMA. And so we can go ahead and move on. There's obviously one property that's the broader application. Again, it's still part of the same application materials. What you see here, and I'll just say this now because it's relevant to the next application, is you see here there's a tighter, smaller circle as opposed to this broader circle. amoeba looking thing, that is the actual FEMA confirmed real flood area hazard portion, okay? And so that's what's been confirmed as FEMA as being the only relevant portion of the flood hazard, which means under the county's code that the rest of it that is in the blue, the rest of what is currently zoned as floodplain doesn't meet the county's definition for floodplain. Does that make sense? So instead of having this broader bubble that is overlaid on a whole bunch of properties, it's really only that smaller piece. This particular hearing is related to those four on the top left-hand side of this picture. And those are requests where we're going from the RREA comprehensive plan, also to the RI comprehensive plan, and then the associated zoning district, which is rural industrial. We can go to the next slide. This just reiterates the map revision. So the real reason that we're doing this is trying to get consistent with the actually zoning designation and the comprehensive plan. We believe that the original mapping was done in error, which was then shown by the LOMAR or letter of map revision that was done in 2015. As staff noted, because this is a base zone, The county can't just willy-nilly wave a magic wand and change the zoning on the property itself. We had to come in with our own application in order to confirm the zoning designation or conform it to what may be more correct on the subject property. What's interesting is, and I have this on slide 12. I don't want you to move forward to it. It's not necessarily relevant right now. And it is in a letter that we filed. The floodplain zoning itself is a kind of an odd creature in Deschutes County. And it was done as a base level zone, not as an overlay. The problem with it being done as a base level zone is it was never really properly accounted for in Deschutes County's comprehensive plan for all of time. And what I mean by that is there is a table in the comprehensive plan that is both in a letter that I provided and in a later slide. It's table 1.3.3. And that shows you which comprehensive plan designations there are that have been authorized. and then which associated zoning codes can be applied for those various comprehensive plan designations. What I mean by that is in the RREA or Rural Residential Exception Area, for example, in theory, the only base level zones that can be applied to RREA comprehensive plan is the MUA 10 and the RR 10 zone. We're gonna geek out here for a moment and say that is problematic because when the county created the floodplain zone at the same time, it created it as a base level zone that is not authorized under the comprehensive plan zoning designation, sorry, as the comprehensive plan designation of RREA. In fact, the only place in the comprehensive plan that are authorized to have the floodplain as a zoning designation or zoning code is in the Sisters Urban Growth Area and the Bend Urban Growth Area. So it's just a mistake that had been applied throughout the county's code, or sorry, throughout the comprehensive planning map that was never corrected in any of the comprehensive planning programs that Deschutes County has moved forward with since it adopted its original comprehensive plan. That's a problem because technically speaking, we're now out of alignment with the comp plan and the zoning code, which means in theory, it could be argued that there is no proper zoning code that has been applied to these properties. It also creates a problem when you look at what exceptions were taken in order for Deschutes County to establish its comprehensive plan and zoning code in the first instance. I'm getting a little bit in the weeds here, but this is relevant because Central Oregon Land Watch today submitted a comment letter saying the only way you could move forward on this application is if you took another exception. because the exception wouldn't be, it would be a broader exception than what was taken under goal three, goal four in order to establish the rural residential area. I will have to provide a legal briefing on this and a final legal argument, but my initial kind of thought process when I looked at this letter a few minutes ago was I don't think that's correct and I don't think it's correct because when Deschutes County took its exceptions and put the rural residential exception area on this property as mapped, it also included the floodplain. So the exceptions that it was taking, which typically would have been for RR for residential uses, it also adopted the floodplain zoning designation. So clearly, although the exception statement itself may or may not be ambiguous on this point, it also still adopted the floodplain zone onto this property. And so the exceptions would have had to subsume that floodplain designation also in all of those uses. And as we'll get to in a second, those uses are broad. So let's move to the next slide. Why are we looking at rural industrial? Well, there's several comments that are concerned about additional industrial uses. As we already noted earlier briefly, there's four different properties here. Right now, there's a well drilling business on one of them, and there's been various other industrial and commercial type uses on the property. There are some concerns that there would be additional impacts based upon an industrial zoning here. And I just wanna be very clear that overlaying this property or correcting the zoning and adding the RI zoning designation actually provides for more protection than the existing zoning designation. The existing zoning designation that's floodplain has almost no restrictions on it. And what I mean by that is under the floodplain designation, you can have new commercial and new industrial uses as a conditional use, period, okay? And the only criteria or restrictions are the standard conditional use criteria. That's it. Whereas if instead you overlay the rural industrial zoning to this property, it has a whole slew of other limitations. And those are included in dimensional standards, other requirements, and also the conditional use criteria. So we would go from having just standard conditional use criteria, compatibility, those sorts of things overlaying to having the rest of the rural industrial zoning scheme in order to protect against impacts to other properties. On that point, there maybe have been some questions about whether or not putting industrial uses here is an urbanization. And I just want to be clear, and this is in my comment letter today too, that the Court of Appeals has firmly stated that anything that has the rural industrial zoning or comp plan applied to it in Deschutes County is a rural use. That's the last ranch decision. I've cited it in my materials, and it's pretty recent this year that has confirmed that they are rural uses, we don't have a goal 14 issue, etc. I'm trying to fly through this pretty quickly because I know we've got a lot going on today. I'm going to skip the next slide. It basically talks about the long history that have been on this property and instead get to the images. We got 2000, 2005, 2011, and 2024. What you essentially see is these properties have been in some sort of a shop use or industrial use for decades. It actually goes back further than that. There's a decision on the property that is currently split zone, floodplain and MUA 10. It also allowed, for example, home occupation, which was essentially an antique store. And so the point is, is that these properties have been used for a long time for this sort of use, and we're just seeking to establish that in its totality. I'm going to move forward two slides now. I apologize. Just to get you to that table so you can see it. And what you'll see here is these are the comprehensive plan designations and then the associated zoning codes that are enabled in them. So for example, the rural residential exception area in theory by the comp plan only allows the overlay of our R10 and MUA10 zone. The only place that the floodplain is permitted in theory is Sisters Urban Growth and Bend Urban Growth area. That's why we're trying to clean this up. That's the nerdy legal part of this. The reality is we're just trying to conform the uses to what's happening on the property. I'm gonna go ahead and turn it over to the applicant representative, Abby, I think she's sitting there, to talk a little bit more about what exactly is happening on the property. And then one last piece, because this is raised in LandWatch's letter today, is a question about code enforcement on the property. And I'll have Abby touch on that. But it's my understanding that there is no active code enforcement on the subject property or properties, any four of them. But I'll let Abby go ahead and jump in if I'm incorrect on that point.

No, I can talk about this. So I am the wife of Neil Fagan, and he is one of the sons of Harry and Bette Fagan. And I got into this, kind of went down this rabbit hole because we decided that we wanted to remodel our house that was in the floodplain. And from there, I... wanted to know more before I just paid for things and had answers given to me that I didn't understand. And so for the RI, Neil wanted to update me. the shop that we're, he's currently doing business out of and that we, he had his contractor go down and they said, no, you're in a floodplain. You can't do anything. And I wanted to know why. And I met with Audrey and Will and went into depth about why the, This is how it is. And from there, I connected with Ken and Daniel, and I've learned more and more about how this whole thing conspired and where we're at now. And at this point... Like Ken keeps saying, it's a pretty big mess. And I would say that Audrey and Will both agree that it's pretty messy. And when you go down to the county to go and submit a permit, it's often they don't know what to do. and there has to be a lot of backtracking. So we went through the process of getting prepared to submit permits, a CUP, for the commercial building that is on the property. And we would like to do some updates to it. So we are trying to abide by the county's rules and stuff. And we have worked on how tall it can be, how wide it can be, that the property setbacks are all corrected, that we have proper landscaping, and that we have proper barriers or something to keep what's going on there more private and not be exposing the residents around it. Definitely, I have spent time, hours and hours going through this and reading over and over trying to make sure that If we go for a rural industrial zoning, that we could comply with that and move forward and keep our small business going and just... be able to work with the land and be in compliance is basically the bottom line is that floodplain is an open can of worms and it doesn't make it easy for either side, the county or us, to navigate through it. For the code compliances, yes, over the years there has been a few code violations and those have all been cleaned up. We've worked with the county. The last one we worked with, we spent time with Carolyn Young and went through all of it and An example of that is there was a shipping container on one of them. And in order for the shipping container to stay, we had to get a... CUP for it, and we couldn't just pay a permitting process for it. So we would have gone through the whole CUP process and then pay for the container permit. So we had to remove the container because I wanted to go through the zoning and spend the money on correcting the issue instead of what Will and I and Audrey kind of say this is the band-aid of fixing the problem is doing just a COP. Other thing, I think there was a lighting issue. issue long long ago for the shop at 21028 and under the rural industrial you have to follow certain lighting restrictions and stuff and so that again is something that would regulate us better and hopefully be able to be neighbors that comply with the coordinates for the

So again, I just want to highlight that the whole point here is not to pull a fast one. It's really just to get us into a place where we can be performing the uses on the property that are appropriate and that have been used for decades. And like Abby said, the floodplain is kind of a mess and there is an authorization. It's in my letter, but it's DCC 1896. that 040 sub I. And under that particular code provision, it's been the interpretation that you can have any commercial or industrial use or expansion, and that that merely requires a conditional use application. And there aren't other restrictions in the zoning code for floodplain that otherwise restrict use. And so you don't have the same buffering requirements, et cetera, et cetera, et cetera. It falls back on the conditional use criteria. and depending on what you're doing, a site plan criteria. Whereas the rural industrial has much broader sideboards that then would provide additional restrictions and regulatory authority for both the county and protection for neighbors. So that's kind of our thought process of why we wanted to move these four to rural industrial as opposed to continuing the same proposal as MUA 10. but obviously that required a comprehensive plan amendment and not just a zone change, it required both. I want to hit one last piece before I reserve time for rebuttal, which is I think that there is sometimes a fear that what is permitted in the RI zone is substantially different than what may or more impactful than what may be allowed in the MUA 10 zone. And I don't prescribe to that same idea. thought process. If you look at the MUA 10 zone, it also allows substantially disruptive, I would say, types of uses, also as conditional uses. It allows things like asphalt batch plants and surface mining. And so what we're talking about here is a small business that's a well driller in all reality. We're not looking at other significant uses that are even permitted in the MUA 10 zone without significant other guardrails, again, except for those conditional use or site plan criteria that might apply. And so the actual uses that we're looking at aren't substantially different. It's just that the RI zone does have more protections. And then it does allow some certain industrial uses that may not be explicitly permitted under MUA 10. I believe this is in the record, but if not, certainly the file number is. Over the last year, we did receive the conditional use permit that Abby was talking about in order to expand a business, in particular, expand a building related to the well drilling business. And there are findings in that decision about how the use has been there for years. I'm not sure if it says decades, but it certainly alludes to many years. And so if the hearings officer wants the actual copy of that decision, I'm happy to submit it as part of post-hearing comment. That's all I have unless there's specific questions.

Thank you for the presentation. I don't think I have specific questions now. I imagine you'll come up for rebuttal and I may have more than based on what is... revealed during the rest of the testimony. But for now, I'm good. Thank you.

Thank you.

I think that brings us to anyone that's signed up in support of the application. Ms. Stewart, is there anyone that's noted that?

I have... Seven people signed up, one of which is Abby, who just testified. Of the remaining six, could you raise your hand if you're here to testify in support? Six people in person are signed up to testify in support. Would you like me to just run through the list?

Yes, please. Just call them up in whatever order you have.

Okay. We will start with Phil Peterson.

Does he need to come up here? So we'll have you guys swap.

Okay. Bill, you can take my seat.

Excuse me. Phil Peterson. I'm the original owner of that property and the builder of the shop. Back in 1981 when I built that and bought it, The county, I went to the county and they told me since logging, and it was built for a logging shop, falls under agricultural use, you didn't need any permits, anything like that. That's how it all started. There were no lot line adjustments, no floodplains, nothing. You could, as long as it was agricultural related, you could do it. That's how it all started. And when this floodplains came in effect, I can hardly believe my ears when I heard that. You turned support. Oh, I'm supportive of whatever they say, but. It's made it hard for Harry for what he had to go through. And he was a logger too, and that's what he used it for. And everything related to his business was there. So what he bought it for is for the use of his logging, which is what I built for it. So he never varied from what it was originally all started at.

All right. Thank you for your comments.

Next up, we have Eric Christensen.

Good afternoon. I'm Eric Christensen. I'm a resident of that beautiful community. My address is 64682 Cook Avenue, number 58, right off of Tumalo Road. So I've lived in this neighborhood for over 35 years, and we live just a few blocks northeast of the proposed zone changes at 65290 78th Street Bend. I'm writing to express my full unequivocal support for the proposed zone change from flood plain to rural industrial for the four adjacent properties. 21006, 21020, 21028, and 21040 Tumalo Road. As a property owner, I have a deep interest in protecting the financial stability and property values of our neighborhood. A basic search of public real estate data combined with our own lived experience shows that 60 plus years of rural industrial operations in our neighborhood has had zero negative impact on local property values. Since 1980, property values along the Tumalo Road corridor have exploded by roughly 10 to 15 times their original value. Even adjusting for inflation, real appreciation has jumped four to six times over. When these industrial properties first started, the surrounding area consisted mainly of basic mobile and manufactured homes surrounded by open ranches and local contractors. Over the last 10 to 15 years, our neighborhood has successfully shifted and seen more stick-built homes and several high-end multimillion-dollar custom homes. The historic data proves that long-standing rural industrial presence does not hold back neighborhood equity. We also want to comment on concerns regarding local density and traffic. Public records show that Deschutes County population skyrocketed from around 23,700 in 1980 to roughly 177,000 today, a massive 7.5 times increase. The Tumalo Road corridor alone has grown from a handful of scattered farmsteads, local rural industrial businesses, and markets boutiques to an estimated 450 plus homes. The increased traffic and density are the natural result of regional growth and daily commuters traveling between the Tumalo area and the Highway 97 corridor. It is mathematically impossible to blame this regional traffic on four historic rural industrial properties. All four requesting properties feature direct entry and exit onto Tumalo Road, keeping any business vehicles entirely off residential side roads. We appreciate your consideration for updating zoning to match the historic and accurate use of our diverse and lovely neighborhood. Thank you.

Thank you. I have no questions for you.

Thanks for that. And next, we have Tony Asetti.

Thank you for this opportunity. Tony Asetti. I own property close to the subject property at 21-235 Tumalo Place. And I've gone through a rezone in recent years over this and is quite arduous at least. So in support of this, many things you wouldn't want to – you wouldn't – You could not expect better neighbors than the Fagans, willing to help, always trying to do what's right, going out of their way to help the entire community, by the way, not just our area. So I see in this application they want to do what's right. There are more restrictions to protect the general public in this having an RI zone designation. And so again, I support this and to show that the Fagans are trying to do what's right for not just themselves, to create a livelihood for their family and have these all of these all the paperwork that it takes to get something done it's very frustrating and expensive and if this is the path to clean up what needs to be done and historically this has been a industrial type use area and I can attest to that for at least the last 30 years that's how long I've been in the vicinity so without much more to say I'm in support of their application and good luck to you and If there's any questions, I'd be happy to answer anything.

All right. Thank you for your testimony. I do not have any questions for you, Mr. Resetti.

Thank you.

Thanks, Tony.

You're welcome. And next we have Anne Dolan.

Hello, my name's Anne Dolan. My property at 21096 Tumalo Road is included in the MUA 10 application. The property was recently transferred to me. Earlier this year, Abby approached me about the zoning application she was working on. her exhaustive efforts, I would like to acknowledge, and her beautiful explanations of how we got here and what has happened. I just want to say a thank you to all your hard work for something I don't think is your wheelhouse. And She helped me understand what all of this means for me as a property owner. I'd like to express my support not only for the MUA 10 application, but also what they are doing with the RI. As a neighbor, I know that I'm not concerned at all about what they're asking for here. I did learn that in order to make changes to my property under the current zoning, I would likely have to go through a conditional use permitting process, pay additional fees, etc. And rezoning the property would most likely allow me to avoid that process and move directly to the permitting process for building a new home. which is something I would like to do. I also want to say that I appreciate everything Abby did with the entire neighborhood. And from my conversations with her, I believe she's working with the neighborhood in mind and has good intentions for the surrounding properties and residents. I understand that the purpose of this zoning is to better align with how these properties are all currently being used and MUA 10 for the areas where homes are located and rural industrial for areas where businesses are currently operating. So, to reiterate, for these reasons, I support the rezoning, and I believe it's a reasonable way to bring the zoning more in line with the existing uses of the properties. Thank you for your time.

Thank you, Ms. Dahlin. I don't have any questions for you.

Next up, we'll have Carson Thorpe.

My name is Carson Thorpe. I live at 21055 Tumalo Road. Me and my wife purchased the property in 2020. I'd like to speak briefly about my own experience with the challenges of developing property in this area, as well as what I've observed with the neighboring Fagan properties. My property, like the properties involved in this application, is affected by floodplain regulations. All of my property is within the Deschutes County floodplain and approximately half of it remains within the FEMA floodplain. I have firsthand experience with the hurdles involved in doing anything with property in the portion that is outside the FEMA floodplain. My family has recently grown, and I'm currently working on a home addition. I can say from my experience that navigating these regulations and requirements is not the easiest process. I would have liked to be part of this application myself, but under the current comprehensive plan, my property is designated EFU, so that isn't an option for me at this time. I also want to speak about the impact on the surrounding neighborhood. Since moving to the area, I have seen the Fagan properties continually improve and made more appealing to the neighborhood. Based on what I have personally observed over the past several years, I believe rezoning these properties to RI would be consistent with the way the properties have been maintained and improved, and I believe it can be a positive fit for the area. For those reasons, I support the application and respectfully ask that you consider approving the RI rezoning.

Thank you, Mr. Thorpe. I do not have any questions for you.

Thank you.

And I have Neil Fagan signed up next.

Neil Fagan, address 21025, Tumlo Road, Bend, Oregon. I am in support of the rezone to RI. I have lived and grown up on this property and it's been logging and currently we are well drilling and have for my whole life, 40 plus years. That's all I have.

Thank you for your comments. I do not have any questions for you. Ms. Stewart, I count that was six. Is there anyone else who would like to speak in support of the application?

Ms. Block, who's with the applicant's team, was asking if she can also testify as a person in support of the application.

I think I've heard from the applicant, if she wants to be part of the applicant's rebuttal, that would be fine. I'd like to keep this for the public at the moment.

We have no one else in person signed up to testify. We do have one person online. They don't have their hand raised, but I see a Dan Bruce is online.

Okay. Mr. Bruce, if you were hoping to testify in support of the application, could you use the raise hand feature? Don't look like it. Okay. Is there anyone that's signed up to testify in opposition to the application?

No one in person, but I'll just double check. No. Okay. No one in person signed up for opposition.

Okay. And then I will ask Mr. Bruce again, who's online, if you would like to speak in opposition to the application to use the raise hand feature. Okay. Okay, I think we'll move on. This would normally be the time for the applicant to have rebuttal. I suppose since people did testify, the applicant could still make some final comments if you would like to. I might have one question for Mr. Katzaroff, but if the applicant's team would like to use their time, please go ahead.

And I'm back. All right, for the record, Ken Katzer off for the applicants. I'm happy to address your question first, but I do have two quick things.

Sure. I guess the only thing that I saw in the written comments, to be clear, I haven't seen what was posted today either from you or from Central Oregon Land Watch. And I think some of the comments were submitted kind of on both applications. But just for the record's sake, I just wanted to get your take on whether or not Goal 5 is invoked in this proceeding. Sure.

I do not believe that it is. It's clear the intent of the floodplain zoning designation was also intended to have some riparian habitat protections. It wasn't adopted specifically as a Goal 5 regulation or a program to achieve the goal under Goal 5, but it's clear that I think When they did it in 1979, that the intent was it also had those protections. Given that there are no wetlands, repairing areas, streams, or rivers on these properties, I don't think that Goal 5 is invoked in any way, shape, or form. So we concur with staff and staff's analysis of that issue, which was there's nothing here, so there's nothing here to protect. And so the extent that it is a Goal 5 regulation, which we would not concede necessarily that it is, it shouldn't be invoked here.

Thank you. That was the one curiosity I had. So feel free to address your other points now.

Yeah, I have two other quick points. The first is I appreciate the testimony and support. I wanted to comment on, I think his name is Mr. Thorpe. We did not include his property in this application or the application to go to MUA 10. And he's correct. The reason we didn't do that is because of the comprehensive plan designation on his property, which is EFU exclusive farm use, which is categorically different in these types of proceeding than the RREA. It's both different in the burden of proof, which requires us to show that it can't be in a farm use under OAR 660. 0330020. So this is not a non-resourced lands amendment, which is totally different. We don't have the burden of proof to show that you can't farm on it. And more importantly, or certainly equally importantly, is how procedurally this is handled at Deschutes County. which is the decision of this hearings officer is a decision. It is not a recommendation to the Board of County Commissioners, meaning if no party appeals, for example, your decision is the final decision, even if it is to approve the Comprehensive Plan Amendment, which is, again, different than if it was a resource-related zone change and Comprehensive Plan Amendment. So that's why we didn't do a completely different procedure and a completely different burden of proof. Certainly would have loved to have corrected all of the mapping error here related to floodplain, but that just wasn't in the cards for this set of applications. The last thing, and assuming the record is either left open or even just for final legal argument, addressing Landwatch's comment, they did submit the exception statement for part of the comprehensive plan that was adopted on November 1st, 1979 under Ordinance PL-20. The ordinance that we have typically cited is the zoning code, which is PL 15. And it was also adopted the same day. And the same day included all of the floodplain restrictions, use categories, etc. And so clearly it would have been considered at the same time as the comprehensive plans exception statement. Now, the one thing that I'm not clear on is PL 20, which includes the adoption of that Deschutes County 2000 plan. It says as amended to the date hereof, which means I do not know, based upon what I've seen right now, whether or not there was an earlier plan that specifically considered the floodplain differently. It's our understanding that PL 15 was what was considered and met all of the applicable goals and was acknowledged by DLCD. His letter questions whether or not the exception needs to be expanded. And my argument is that I don't think it does because it was considered at the same time, the same adoption, November 1st, 1979. But again, from what he submitted on PL 20, I don't know how that relates to any earlier adoption. It could just be that this is an amended exception statement that wouldn't have addressed it head on, or it could have just all been considered. And I don't know the answer to that. I just wanted to let you know that that's what I've uncovered just briefly. Yeah. I'm happy to answer any questions related to that though.

I don't have any additional questions, so I'm ready to talk about process if the applicant doesn't have anything else. Right. You mentioned a couple of times you would like to submit at least additional argument. My approach typically is I don't extend the record unless there's a request. I don't think I've seen a request yet. So if you're requesting that the record stay open, I would do that so that you could get the final legal argument. I would do that through the normal 777 period. So I'm open to a request, but if I don't receive one, I'll probably just close the record today.

I guess my comment to that is I don't think that we need a 7-7 because there's nobody, as far as I'm aware, that has requested the record be left open. But my understanding of ORAS 197-797 is that applicants still would have the opportunity for a final legal argument.

The reason I'm inclined to do it that way is because some information came in very late today, both from you and from Central Oregon Land Watch, which happened after the notice of the hearing. So I think it is fair to leave that open even for a minimal time for others to address the new information in the record.

We don't object.

Okay. So we'll do the normal 7-7-7 period. I don't have any other questions for you. I guess I want to ask Ms. Stewart if there's anything from staff standpoint. If it's substantive, I'll let Mr. Katsaroff address it in rebuttal, additional rebuttal. But Ms. Stewart, is there anything that you need to bring to my attention?

Nothing else from staff. And I do have some notes on the open record period when we get to that discussion. Okay.

All right, well, I think that's where we are so if you could read your instructions I think you've already calculated dates, if you could read your instructions for additional submittals and what those dates are and then I'll make some final comments.

Thank you. So for the open record, please keep in mind that all submittals should be addressed to me. For email submittals, use my email audrey.stewart at deschutes.org. The county does not retrieve information from a website link or personal cloud storage device. It's your responsibility to submit all evidence and testimony you want the hearings officer to consider. And any electronic submittals must be received by the county server by 4pm. Please do not wait until the last minute to submit your evidence and testimony. On the screen here I have the deadlines. The initial seven days for new evidence will end on Monday, September 21 at 4pm. The rebuttal period will end on Monday, September 28th at 4 p.m. And then the applicant has until Monday, October 5th at 4 p.m. to submit their final legal argument.

Great. Thank you. So those are the instructions for how to submit additional information. I'm going to extend the record for the 777 period. That first open record period is for any participant to submit evidence or argument into the record. The second seven-day period is for rebuttal only, for evidence that's been submitted to the record. And then the final period is just for the applicant to make a final legal argument without any new evidence. With that, we will go off the record today. It's 2-0-3, and we'll keep the record open as I just described. Thank you. And Ms. Stewart, I'm going to take about a five-minute break just to do some notes, and then I'll come back for starting the second hearing.

That's good. Thanks, hearings officer.