Deschutes County holds de novo hearing on request to rezone 240 acres east of Bend; written record left open under 7-7-7 schedule

The Deschutes County Board of Commissioners on Aug. 20 held a de novo public hearing on an application to amend the comprehensive plan and rezone 240 acres east of Bend from Exclusive Farm Use (EFU) to Multiple Use Agricultural (MUA-10). The board left the written record open under a standard 7-7-7 schedule: new evidence due Aug. 27 at 4 p.m., rebuttal due Sept. 3 at 4 p.m., and the applicant’s final legal argument due Sept. 10 at 4 p.m.

Audrey Stewart, associate planner with Deschutes County Community Development, summarized the application and process. She said the property consists of four tax lots totaling 240 acres, contains a lot-of-record dwelling and a photovoltaic solar array covering about 62 acres, and lies east of Bend north of Highway 20 between Ward Road and Erickson Road. The applicant seeks a comprehensive plan amendment from agriculture to rural residential exception area and a zone change from EFU to MUA-10. Stewart explained the county must hold a de novo hearing because the request affects resource land and outlined four procedural options the board could take following the hearing.

Christopher Koback, the applicant’s attorney, said the record compiled by staff and the hearings officer supports approval. He described past rezones east of Bend, explained that the applicant’s soil consultant relied on NRCS mapping and a memo interpreting complex soil units, and said the hearings officer recommended approval. Koback noted the solar array on the property would be a nonconforming use under MUA-10 and cited Holmes v. Clackamas County to argue an existing lawful nonconforming use does not render the rezoning inconsistent with the new zone.

Rory Isbell, staff attorney for Central Oregon Land Watch, opposed the application. He argued the proposed MUA-10 zone does not allow a photovoltaic array and that rezoning would create a willful nonconforming use. Isbell also said the county should treat the soil consultant memo as a state-required soil assessment (and thus require DLCD certification) and asserted that when earlier iterations of the application included roughly 19 additional acres the combined parcel met NRCS criteria for agricultural land. He also raised concerns about the MUA density bonus within one mile of the urban growth boundary and noted county code provisions that allow planned developments with no minimum lot size.

Members of the public raised traffic, wildlife, water (wells and water rights), septic, road safety and fire-service capacity questions. An audience member asked whether a traffic study had been completed; staff and the applicant said a traffic analysis for the MUA-10 worst-case scenario was completed and iterated with transportation staff; transportation staff also asked the applicant to model redevelopment within a 20-year planning horizon. Nearby residents also requested more data on wildlife impacts and groundwater impacts.

During the hearing commissioners probed competing soil-evidence approaches: site-specific soil studies based on test pits versus reliance on NRCS mapping and consultant memos that interpret ‘‘complex’’ soil units. The applicant’s representative said their certified soil scientist had concluded the property is predominantly class 7 and 8 soils and that other recent rezones in the area used a similar approach. The applicant also supplied economic and irrigation-related arguments, including written testimony from an expert (Eric Haggerty) that argued farm activities requiring irrigation or large investments are unlikely given limited water rights and high costs.

Staff advised the board that they had received multiple written comments, including seven submissions before the hearings officer hearing and four more since the hearings officer’s recommendation was mailed July 9 (one of those four from LandWatch). The hearings officer had held an initial hearing May 9 and issued a recommendation for approval on July 9.

Commissioners asked staff to provide a follow-up regarding transportation and whether the Ward/Highway 20 roundabout has reduced crashes; staff said the county’s transportation planner and ODOT had reviewed the traffic work and that further follow-up could be provided. Community Development staff planner Nicole Bridal and CDD Director Peter Gutowski described a DLCD-funded “future urbanization” code project (grant: $25,000; grant deadline June 30, 2027) the county is starting to study rezonings and development adjacent to the Bend UGB and to explore code changes such as land-division, cluster and planned-unit development standards to preserve lands for future urbanization.

After public testimony and applicant rebuttal, the board discussed whether to leave the written record open. Commissioners expressed differing views: some favored closing the record and setting deliberations later; others favored leaving the record open to allow additional neighbors to submit comments. The board adopted a 7-7-7 schedule for written submittals (new evidence by Aug. 27, rebuttal by Sept. 3, applicant final argument by Sept. 10) and closed the oral portion of the hearing. No final vote on the rezoning was taken at the Aug. 20 meeting; the hearings record will be expanded and the board will deliberate later based on the updated written record.

Key factual points stated on the record include: the project area is 240 acres; the existing photovoltaic array covers about 62 acres; the hearings officer recommended approval on July 9; the applicant provided a soils memo interpreting NRCS complex soil mapping (no site-specific test pits); the county received a DLCD grant of $25,000 to study code approaches for lands adjacent to the Bend UGB; and the county transportation planner asked the applicant to analyze redevelopment within a 20-year planning horizon for traffic modeling.

The board provided explicit deadlines for written submissions addressed to Audrey Stewart at audrey.stewart@deschutes.org: new written evidence and testimony (Aug. 27, 4 p.m.), rebuttal (Sept. 3, 4 p.m.) and applicant final legal argument (Sept. 10, 4 p.m.). The oral hearing portion is closed and deliberations will be scheduled after the written record closes.