A Deschutes County proposal to rezone certain farm and forest lands could be upended in light of a decision from the state Land Use Board of Appeals.

This month, the Land Use Board of Appeals ruled that a decision in Douglas County to redesignate 22,500 acres of forest and farm land to allow for more rural development did not adequately meet the standards of the state’s land use laws. The proposal was appealed by several entities, including 1000 Friends of Oregon and the state Department of Land Conservation and Development, over environmental and public safety concerns.

Douglas County, which sought to open up more development on resource lands, did not do enough to protect farm and forestlands, address wildfire concerns or work with other jurisdictions to coordinate with other housing needs and projects, according to the ruling.

The decision comes at a time when the county is considering its own proposal, which seeks to define a zone and create criteria for land that is zoned for farm and forestry but has little capacity to grow anything. While the designation has existed for years, there has been little to no direction from the state telling counties how this land should be regulated — and for what purpose.

But as a result of the decision in Douglas County, for the first time, there is case law guiding how these lands are regulated, said Deschutes County Planning Manager Peter Gutowsky. That’s raising new issues and creating an uncertain fate for Deschutes County’s plan to rezone six subdivisions — and for creating a zone for these lands at all.

“To me it seems like they were underscoring that the state land use system is structured to a certain extent to protect these farm and forest lands, and the bar to overturn those designations is significant,” he said.

County staff will be bringing the issue before the County Commission at its regular meeting Wednesday to consider.

“What the (Land Use Board of Appeals) has done is created case law on a land use matter pertaining to nonresource lands where none exists,” Gutowsky said. “That gap, that void … has essentially been filled in by this LUBA remand for the first time. It’s created a whole new legal environment where counties will need to step back and evaluate whether it’s worthwhile to go forward.”

The issue of nonresource lands — now defined as rural resource lands by the state — has puzzled local government and vexed land use and environmental activists for decades.

New ground

Deschutes County, in some ways, has been at the forefront of this issue. About 25% of all land redesignations from farm and forest to a residential zone in the state have happened in Deschutes County.

But the push for the current proposal, which is still being deliberated by the planning commission, came out of a desire to clarify a process that the Department of Land Conservation and Development has yet to make rules for.

The county’s plan would make a zone for someone who can prove their land can’t be farmed, which would allow them to build a home outright, rather than go through the costly and time-consuming conditional use process that exists for land zoned for farm or forestry zones. Another proposal is seeking to rezone six subdivisions, which are all on farm and forest land but were developed before the state’s land use law system.

But the Douglas County case has raised new questions about what it takes to make land eligible for this kind of change. Part of the decision addressed the fact that the county failed to coordinate with local cities about how to handle wildfire risk and the effects from wastewater systems. The county also failed to address the city of Roseburg’s concern over how the zone change could negatively affect its effort to supply additional housing within the city limits and the surrounding areas in the urban growth boundary, out of fear that the potential increase in residents could put “a heavy toll on the public infrastructure used to serve these individuals, who do not share in the cost of its upkeep and maintenance,” according to the decision.

Outside of requiring property owners to be in a fire district, or having the capability to be annexed into one, the Deschutes County proposal has yet to address these kinds of issues, Gutowsky said.

“The fact (LUBA) introduced all these other elements raises uncertainty as to whether it’s possible to go forward with an update of the comprehensive plan if the LUBA is expecting a more robust analysis,” Gutowsky said.

The pushback

Both Deschutes County proposals also have been met with sharp pushback, with groups including Central Oregon LandWatch and 1000 Friends of Oregon arguing that the proposal doesn’t meet standards set by state law and will set a precedent for a kind of spot zoning that will for generations drive up costs for taxpayers.

“The policy reasons of why we protect agricultural land aren’t necessarily based on short-term, economic output of land but on it’s capability into the future indefinitely to support agriculture and forestry,” said Rory Isbell, a staff attorney for Central Oregon LandWatch. “Every irrigated field you see in Central Oregon probably had rocks in it 120 years ago. It takes awhile to prime those soils, but it’s possible.”

Environmental activists argue that creating a clear path to development on nonresource lands is driven by special, profit-driven interests that will lead to the degradation of wildlife, increase wildfire risk and threaten the character of rural Oregon.

“This is the West,” said Isbell. “If you think of old Western landscapes, that’s what we’re trying to preserve here … so we don’t have luxury housing dotting our landscape.”

For organizations like 1000 Friends of Oregon, the land use decision is considered a win for what they consider to be the heart of Oregon’s land use law: keeping rural areas rural, and urban areas urban.

“I think it’s a really important decision. … The (board of appeals) said, ‘No, we’re serious about what goals three and four say,’” said Scott Hilgenberg, an attorney with the organization, referring to statewide planning goals that protect farm and forest land. “And it says that an attempt to do a technical runaround of these goals protecting farm and forest economies are not acceptable.”

Deschutes County is now left to make a decision about what to do next.

“One of the conclusions (from the Douglas County decision) is that without rulemaking, counties are really disincentivized to go it alone,” Gutowsky said. “Before Douglas County, you could absolutely make the argument that Douglas and Deschutes could do their analysis … to update their comprehensive plan to acknowledge these circumstances. That opportunity really is compromised with this (land use decision).”

— Reporter: 541-633-2160, bvisser@bendbulletin.com

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