Oregon Cases August 02, 2019: Dep't of Land Conservation & Dev. v. Douglas Cnty.

Case Description

FINAL OPINION AND ORDER

Appeal from Douglas County.

Erin L. Donald, Assistant Attorney General, Portland, filed a petition for review and argued on behalf of petitioners Department of Land Conservation and Development and Oregon Department of Fish and Wildlife.

Meriel L. Darzen, Portland, filed a petition for review and argued on behalf of petitioner/intervenor-petitioner 1000 Friends of Oregon.

Jennifer M. Bragar, Portland, filed a petition for review and argued on behalf of petitioner/intervenor-petitioner Friends of Douglas County. With her on the brief was Tomasi Salyer Martin PC.

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Michael C. Robinson, Portland, filed the response brief and argued on behalf of respondent. With him on the brief were Andrew J. Lee and Schwabe, Williamson & Wyatt, P.C.

Timothy J. Bernasek, Portland, filed the amicus curiae brief on behalf of Oregon Farm Bureau Federation and Douglas County Farm Bureau. With him on the brief was Dunn Carney Allen Higgins & Tongue LLP.

RUDD, Board Member; RYAN, Board Chair; ZAMUDIO, Board Member, participated in the decision.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.

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Opinion by Rudd.

NATURE OF THE DECISION

Petitioners and intervenors-petitioners challenge a county board of commissioners' decision adopting a post acknowledgement plan amendment (PAPA) that adopts a new Rural Open Space (ROS) comprehensive plan designation and a new zone designation, Rural Transitional-20 acre (RT-20).

MOTION TO FILE AMICUS BRIEF

On April 30, 2019, Oregon Farm Bureau Federation (OFBF) and Douglas County Farm Bureau (DCFB) (collectively, amicus ) filed a motion for leave to participate as amicus curiae on the side of petitioners. OAR 661-010-0052(1)

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(2017). Our rules provide that "[w]here amicus is aligned with the interests of the petitioner(s), the amicus brief is due seven days after the date the petition for review is due." OAR 661-010-0052(2). The motion to file an amicus brief is timely, unopposed and accordingly, it is granted. See Central Oregon Landwatch v . Jefferson County , 62 Or LUBA 530, 533 (2010) (explaining that "[t]he typical amicus is a person or organization that has no direct interest in the matter, but is in possession of views or perspectives that may assist LUBA to correctly decide the legal issues.")

MOTION TO TAKE OFFICIAL NOTICE

On April 24, 2019, DLCD and ODFW (collectively the agencies) filed an unopposed motion requesting that LUBA take official notice of the Governor of Oregon's Executive Order No. 12-07 (Executive Order). The Executive Order authorized the creation of a pilot program to evaluate the potential for development of a regional approach for designating resource lands. The resulting program was designated the Southern Oregon Regional Pilot Program (SORPP).

In their petition for review, the agencies state that they include a discussion of the Executive Order in their statement of facts because the challenged decision includes a discussion of the SORPP and the SORPP analysis is prominent in the

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county's decision. Agency Petition for Review 6. The agencies maintain that the Executive Order provides context for the challenged decision. Motion to Take Official Notice 2.

Official acts of the executive branch of a state are subject to judicial notice under ORS 40.090(2) and we will take official notice of the Executive Order as an official act of the Governor of Oregon. We acknowledge, however, that the agencies' petition states that "the SORPP materials referenced and contained in the challenged decision and the record have no independent legal significance." Agency Petition for Review 7. We have consistently held that we will take official notice of documents subject to judicial notice under ORS 40.090(2) with the understanding that our review is generally limited to the record and that we will not consider documents officially noticed for adjudicative facts. Friends of Deschutes County v . Deschutes County , 49 Or LUBA 100, 103 (2005). Given that it does not appear that the Executive Order is submitted for any purpose other than for adjudicative facts for which we will not consider it, our taking official

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notice of the document will not affect our analysis or impact our disposition of this appeal.

MOTION TO FILE REPLY BRIEF

On June 7, 2019, 1000 Friends filed a motion to file a reply brief and reply brief. "A reply brief may not be filed unless permission is obtained from the Board. * * * A reply brief shall be confined solely to new matters raised in the respondent's brief, state agency brief, or amicus brief." OAR 661-010-0039. The reply brief addresses issues of waiver, failure to cite to the record and ripeness that are raised in the county's brief. The motion is unopposed and is granted.

MOTION TO FILE SUPPLEMENTAL AUTHORITY

On June 12, 2019, the agencies filed a motion to file supplemental authority, a copy of 1000 Friends of Oregon v . Washington County , 17 Or LUBA 671 (1989), in response to the argument in the county's response that our review of Statewide Planning Goal compliance is constrained in a case in which no land is rezoned or given a new comprehensive plan designation. No party opposes the motion and it is granted.

BACKGROUND

In the challenged decision, the county amended its comprehensive plan to create a new comprehensive plan designation, the Rural Open Space (ROS) designation, and a new zone to implement the ROS designation, the Rural Transition 20 (RT-20) zone. We explain the process that the county engaged in

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leading to the county's adoption of the new plan and zone designations, and then explain the applicable provisions of the Douglas County Comprehensive Plan.

A. The SORPP

As amicus explains, Douglas County is forecasted to grow by 4,575 people over the next twenty years. Amicus Brief 2; Record 65.

"Douglas County ('Respondent') attempted to address this anticipated growth by creating a Rural Open Space ('ROS') designation, which would allow for the development of single-family homes and subdivisions on lands that were formerly zoned for [resource] use. Rec. 33. The stated intent of the ROS designation is to 'provide for a well-defined classification of lands within Douglas County that identify lands which hold marginal to no farm and forest value, but are, for a lack of other implementing measure, designated as resource lands.' Rec. 32. ROS designated lands are intended to serve as buffer lands, which create transitional open space areas where homes can be built to 'provide for rural family open space lifestyles,' but only on lands that are not high-value agricultural or timberlands. Rec. 33. According to Respondent, the ROS designation conforms with Oregon's land use planning goals because it 'considers the spirit and intent of both Goal 3 and 4' by excluding high value agricultural and timberlands from the designation. Record 33. In determining what lands would be designated ROS, Respondent relied on the findings of the Southern Oregon Regional Pilot Program ('SORPP'). Record 34." Amicus Brief 2-3.

Agricultural lands are protected for farm uses under Statewide Planning Goal 3 (Agricultural Lands), and implementing regulations adopted by the Land

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Conservation and Development Commission (LCDC). Forest lands are protected for forest uses under Statewide Planning Goal 4 (Forest Lands) and implementing regulations adopted by LCDC. Farm and forest lands are generally referred to as "resource lands." The SORPP process grew out of years of inquiries as to whether a region of the state should have more regionally specific standards for conserving resource lands. During its 2011 and 2012 legislative sessions, Oregon's legislature considered bills which would authorize the county, along with Jackson and Josephine Counties, to develop and recommend new regional definitions for uses in applying Statewide Planning Goals 3 (Agricultural Lands) and 4 (Forest Lands) in those counties. HB 3615, HB 4095. Neither bill was enacted by the legislature, but the Governor issued the Executive Order mirroring key aspects of the proposed legislation and providing state support for regional studies to explore the potential for a region-based approach for protecting farm and forest lands. Record 35. The study process was directed toward determining if the three counties could agree on a rulemaking proposal for submission to LCDC for consideration.

Over the course of four years, the county "worked in close coordination with Jackson and Josephine Counties and the DLCD in order to [complete tasks including] * * * data collection/acquisition, data analysis and assessment,

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conceptualization, a carrying capacity analysis, and final summary reports." Id . Ultimately, the three counties did not submit a regional rulemaking petition to LCDC implementing a SORPP developed concept. Record 35-36. The county concluded, however, that:

"The program provided many beneficial results, including and [ sic ] methodology for identifying non-resource land unique to the Southwestern region of Oregon. The methodology for identifying non-resource lands established in [SORPP Task 5], was a regional concept developed in order to meet the needs of each of the three counties, while also addressing the guidance provided to the counties for identification of non-resource lands." Record 35-36.

Finding value in the work done under the SORPP umbrella, the county "adapted and refined the information and analysis provided within the SORPP in order to create [its] Rural Open Space Lands Program." Record 36.

B. LUBA Appeals

The procedural background of these consolidated appeals is lengthy. The present consolidated set of appeals involves (1) three notices of intent to appeal (NITAs) that all challenge Ordinance No. 2018-02-01, adopted on March 7, 2018, and (2) three NITAs that challenge a "Correction Order" adopted on April 23, 2018, which corrected aspects of Ordinance No. 2018-02-01.

On March 7, 2018, Douglas County adopted Ordinance 2018-02-01, creating a new comprehensive plan and zoning designation. DLCD, 1000 Friends and ODFW appealed the decision adopting Ordinance 2018-02-01 to LUBA (LUBA Nos 2018-039, 2018-040, and 2018-041, respectively).

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Approximately six weeks after adopting Ordinance 2018-02-01, on April 23, 2018, the county adopted its "Correction Order" to resolve inconsistencies concerning a method erroneously included in the record. DLCD and ODFW filed new NITAs to LUBA of the Correction Order alleging the county did not utilize the procedure in OAR 661-010-0021 to withdraw the original decision for reconsideration. (LUBA Nos 2018-048 and 2018-049, respectively). Agency Petition for Review 5. FODC also appealed the correction order. (LUBA No 2018-051). LUBA consolidated these six appeals.

On August 6, 2018, the county withdrew Ordinance 2018-02-01 and the April 23, 2018 Correction Order, for reconsideration in the manner provided in OAR 661-010-0021. On October 24, 2018, the county adopted Ordinance No. 2018-10-01 reflecting its decision on reconsideration, which readopts Ordinance 2018-02-01, as corrected, with minor changes.

Ordinance No. 2018-10-01 provides that "The Board of Commissioners is re-adopting the 2018 Legislative Amendments to better document the final document methodology and text as corrected on April 23, 2018 and alleviate any lack of clarity in the Plan adoption for the LUBA appeal review process." Record 5. Subsequently, 1000 Friends, the petitioner in LUBA No. 2018-040, refiled its original NITA, challenging Ordinance No. 2018-02-01, pursuant to OAR 661-010-0021(5)(a)A). FODC, the petitioner in LUBA No. 2018-051, also refiled its original NITA. DLCD, the petitioner in LUBA Nos. 2018-039 and 2018-048, and ODFW, the petitioner in LUBA Nos. 2018-041 and 2018-049 filed amended

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NITAs, challenging the decision on reconsideration pursuant to OAR 661-01-0021(5)(a)(B). Thus, our review is of Ordinance 2018-10-01, which we sometimes refer to as the challenged decision.

C. The Douglas County Comprehensive Plan Provisions

The county identifies four types of Rural Lands in the Douglas County Comprehensive Plan (Comp Plan): Timberland, Agriculture, Coastal Resource and Farm/Forest Transitional. Comp Plan 15-8.

"The intent of the Timberlands designation is to conserve forest lands for forest uses; encourage activities which enhance the overall forest resource; reduce conflicts from competing land uses in forest resource areas; and to conserve and protect significant forest values such as wildlife habitat, watersheds and recreation * * *." Id .

The Timberland Comp Plan designation is implemented through application of the Timberland Resource (TR) zone. Comp Plan 15-14.

For the Agriculture Comp Plan designation, "The intent of the Agriculture designation is to preserve and maintain prime agriculture lands for farm use. It is also intended to provide protection from nonfarm uses as well as provide encouragement and incentives for activities which enhance the agricultural resources of Douglas County." Comp Plan 15-11. The Agriculture Comp Plan

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designation is implemented through the Exclusive Farm Use - Grazing (FG) and Exclusive Farm Use - Cropland (FC) zones. Comp Plan 15-14.

The Comp Plan describes the Farm/Forest Transitional lands as consisting of "low to no value soils * * * located within close proximity to rural and urban communities, as well as, areas committed to existing ROS (non-resource) development." Record 31 (underscore omitted). "The intent of the Farm/Forest Transitional designation is to conserve and maintain open space lands for forest uses, farm uses or both. It is also intended to maintain open space lands which are otherwise necessary to protect natural resource areas." Comp Plan 15-10. The Farm/Forest Transitional Comp Plan designation is implemented through the Farm Forest (FF), Agriculture and Woodlot (AW) zones and, pursuant to the challenged decision, the ROS Comp Plan map designation and the RT-20 zone. Comp Plan 15-14; Record 31-32. The ROS Comp Plan map designation and RT-20 zoning are described collectively herein as the ROS/RT-20 designation.

In the challenged decision, the county adopted a map identifying lands that the county, after applying a variety of criteria (the eligibility filter), determined were eligible to seek the new ROS/RT-20 designation. The county also adopted standards for approving a quasi-judicial or legislative effort to redesignate property ROS/RT-20.

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STANDARD OF REVIEW

LUBA "shall reverse or remand an amendment to a comprehensive plan if the amendment is not in compliance with the [statewide planning] goals." ORS 197.835(6). Petitioners argue that the county's decision should be remanded because it fails to demonstrate compliance with Statewide Planning Goals 2 (Land Use Planning), 3 (Agricultural Lands), 4 (Forest Lands), 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces), 7 (Areas Subject to Natural Hazards), 10 (Housing), and 11 (Public Facilities and Services).

In response, the county invokes cases in which we and the appellate courts have concluded that appellate review of a comprehensive plan amendment that does not change the land use designation of any property is limited with respect to review for goal compliance. Response Brief 15-16, 35-36, 45-46. Citizens Against Irresponsible Growth v . Metro , 179 Or App 12, 14-15, 38 P3d 956 (2002); Friends of Deschutes County v . Deschutes County , 49 Or LUBA 100, 101 (2005); Tipperman v . Union County , 44 Or LUBA 98, 106 (2003). Those cases establish that appellate review is limited if (1) the challenged decision demonstrates compliance with the goals, or establishes that certain goals are not implicated by the decision, or (2) the challenged decision affirmatively establishes that the local government will review a future decision that applies

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the comprehensive plan amendment for goal compliance in a later, required proceeding.

For example, our recent decision in Central Oregon Landwatch v . Deschutes County ___ Or LUBA ___ (LUBA No 2018-126, Mar 20, 2019) (Aceti III) , aff'd , 298 Or App 376, ___ P3d ___ (2019), concerned a comprehensive plan text amendment removing language from the plan that limited application of Rural Industrial and Rural Commercial plan designations to certain exception lands. As we explained:

"[T]he effect of the plan amendments [was] to allow the county to potentially approve an application to change the comprehensive plan designation for any property in the county to [Rural Industrial], provided the application is consistent with all applicable statutes, rules, the provisions of the [Deschutes County Comprehensive Plan], and the provisions of the Deschutes County Code (DCC) governing plan amendments." Aceti III , ___ Or LUBA ___ (LUBA No 2018-126, Mar 20, 2019) (slip op at 5).

The county deferred finding compliance with certain goals because the decision did not change the designation of any property. Id . (slip op at 14). The county's findings explained that a future application to rezone resource land property to Rural Industrial would require an exception to the statewide planning goals, or a determination that the application is consistent with all applicable statewide planning goals. Id . (slip op at 11). We agreed with the county's finding that Goal 3 was not implicated and rejected the assignment of error. Id . (slip op at 13-14).

Under the Aceti III holding, in order for our review to be limited at this stage, the county must establish that for any parcel designated ROS/RT-20 in the

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future, the county will review that designation for compliance with the statewide planning goals, and not only for compliance with the adopted ROS/RT-20 eligibility filter. If neither the challenged decision nor other applicable regulations establish that the detailed goal compliance review will in fact occur when an eligible property is redesignated to ROS/RT-20, it is appropriate that we review the challenged decision for goal compliance.

A. Compliance with Goals 3 and 4

In this case, the county does not argue that the challenged decision establishes that the new Comp Plan and zoning designation comply with all applicable goals as implemented by administrative rules. See , e . g ., Response Brief 14-15. Instead, the county argues that we should review petitioners' arguments regarding compliance with Goals 3, 4 and 5 narrowly, because the county's decision does not apply the new ROS/RT-20 designation to any land, but instead only identifies properties that are eligible for future redesignation. Response Brief 1-2, 15-16, 35-36, 45-46. The county asserts that because no land is being redesignated or rezoned by the challenged decision creating the new plan and zoning designations, petitioners are required to establish that " any future redesignation of land to ROS or rezoning to [RT]-20 is categorically inconsistent with controlling legal standards." Response Brief 2 (emphasis in original). Given that our review is limited substantially if the county is correct, we address this contention with respect to Goals 3 and 4 first. We address Goal 5 separately, later in this opinion.

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The newly adopted Comp Plan language does not require review for compliance with the goals. Reply 7. Rather, the adopted language provides:

"Lands identified under the Rural Open Space Lands Identification Methodology may be amended to the Rural Open Space (ROS) designation through a quasi-judicial or legislative plan amendment process and qualify for a re-zoning to Rural Transitional-20 Acre (RT-20) designation provided that:

"1. The property proposed for zone change is a minimum of 20 Acres in size and contains at least 60% of lands designated as Rural Open Space.

"2. Lands proposed for zone change to RT-20, prior to final approval, shall be disqualified from special assessment under a farm and forest deferral.

"3. The designation will permit for one single family dwelling. However, all uses and structures authorized under the Rural Open Space designation shall adhere to the fire siting and resource management standards outlined within the RT-20 zone.

"4. In the Rural Open Space designation, areas that may be eligible for a new subdivision, Douglas County shall encourage the use of the cluster development provisions found in Chapter 4 of the Land Use and Development Ordinance." Record 32-33 (underscore omitted).

The county's decision incorporated findings of goal consistency from the SORPP. Record 39-40, 50-57. As the county explained:

"Although the SORPP was a program characterized by the finding [of] an alternative designation for farm and forest lands from the [Statewide Planning Goals (SWPG)], overall consistency with the SWPGs remains a core value of the program. The following review of the applicable SWPG's organizes the considerations and analyses performed within SORPP in order to demonstrate consistency with

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each goal." Record 50.

With respect to Goals 3 and 4, the county found that:

"Douglas County's Rural Open Space designation considers the spirit and intent of both Goal 3 and 4 by protecting and maintaining lands identified as high value agricultural and timberlands by the Comprehensive Plan which has been acknowledged to comply with The Statewide Planning Goals. This is achieved by better defining Rural Open Space lands within Douglas County that would function more adequately as buffer lands, within transitional areas, utilized for open space resource related land uses with the understanding that these lands will provide for rural family open space lifestyles. (See 'Implementation of the Southern Oregon Regional Pilot Program' section for a comprehensive review of goal compliance.)" Record 33.

The county found that:

"In order for the Rural Open Space lands designation process to remain consistent with the intent and requirements of the SWPG's (ORS 197.230), a great deal of consideration and data analysis were contained in several phases of the SORPP. These considerations and analyses are made available with the Task 5 & 7 reports produced by Douglas County during the SORPP. References to these documents are made throughout this plan element amendment. The identification and analysis process contained within these reports address compatibility of the SORPP with the SWPG's." Record 40.

The language in those findings suggests that in identifying properties that are eligible for ROS/RT-20 designation, the county intended that consistency with the ROS/RT-20 designation quoted above will necessarily mean that the designation of any property as ROS/RT-20 is consistent with Goals 3 and 4. Based upon these findings, the county could conclude, in a future application, that compliance with the ROS/RT-20 designation standards establishes

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compliance with Goals 3 and 4. That conclusion would bypass Goal 3 and 4 compatibility review entirely.

B. Future Goal Compliance Review

Legislative findings can, in some cases, be sufficient to establish that in cases where no land is being redesignated, goal compliance will be addressed at a later stage. As the county points out, the county has not applied the ROS/RT-20 designation to any property. Rather, the county's decision identified approximately 22,500 acres of property that would be eligible for the ROS/RT-20 designation. Record 78. This is similar to the adoption of a map identifying properties eligible to seek destination resort zoning that we considered a challenge to in Central Oregon Landwatch v . Deschutes County , 63 Or LUBA 123 ( Cyrus ), aff'd , 245 Or App 166, 262 P3d 1153 (2011).

In Cyrus , we held that a comprehensive plan amendment identifying properties that are eligible to seek zoning as a destination resort did not require the county to address the transportation planning rule (TPR), which implements Statewide Planning Goal 12 (Transportation), because the eligibility map did not change the zoning designation of any specific properties. Similarly, here, the county has identified lands eligible to apply for the ROS/RT-20 designation but has not applied the designation to any specific land. Cyrus differs from the case before us, however, because in Cyrus the county's findings expressly acknowledged that the county would address the TPR when it zoned specific properties on the county's map of destination resorts. Id . at 144.

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In the challenged decision in this case, the county has not adopted any findings establishing that goal compliance will be addressed at the time a specific property is designated ROS and zoned RT-20. The fact that future additional decisions must occur before properties are redesignated does not insulate the county from its obligation to ensure it evaluates goal compliance at some point prior to designating any property ROS/RT-20. This conclusion is consistent with our holding in 1000 Friends of Oregon v . Washington County , 17 Or LUBA 671, 683 (1989) ( Metropolitan Service District ), where we held that the statewide planning goals may apply to a decision even though that decision is not the last decision needed to authorize construction of a particular facility. We therefore proceed to determine if evaluation for compliance with the goals will necessarily occur at a later stage.

The county argues that Comp Plan 2-9 requires the county to establish compliance with Goal 4 at the time any specific property is redesignated. Comp Plan 2-9 provides:

"Before forest land in forest use is allowed to change to nonfarm or non-forest use, the act of justifying an amendment to the

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Comprehensive Plan must occur in the manner provided for in Statewide Planning Goal 2, except for those uses permitted without an exception by state statute or administrative rule, or for those uses found necessary for the public convenience and welfare which may be permitted conditionally." Response Brief 18-19.

We disagree with the county that Comp Plan 2-9 ensures future review for compliance with Goal 4 and its implementing regulations. First, this policy expressly applies only to forest land in forest use, and therefore on its face offers no protection to forest land not in forest use. Second, the county maintains that "[a]ll 'forest land' previously designated as such remains 'forest land.'" Response Brief 19. The plain language of the provision does not assist in resolving the issue if there is a fundamental disagreement between the goals and the amendments as to what constitutes "forest land" in the context of the decision. This policy does not establish that applications to redesignate property will be reviewed directly for compliance with the goals. Finally, Comp Plan 2-9 does not require the county to address Goal 3 at all.

We conclude that because the county's decision does not establish that the county is not required to establish compliance with Goals 3 and 4 at this stage, or that future county review of applications for redesignation/rezoning will require the county to establish compliance with those goals, it is appropriate for us to consider petitioners' Goal 3 and 4 challenges on review in this appeal.

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GOAL 4

Goal 4 (Forest Lands) is:

"To conserve forest lands by maintaining the forest land base and to protect the state's forest economy by making possible economically efficient forest practices that assure the continuous growing and harvesting of forest tree species as the leading use on forest land consistent with sound management of soil, air, water, and fish and wildlife resources and to provide for recreational opportunities and agriculture." OAR 660-015-0000(4).

The agencies set forth two basic reasons they conclude that the county ROS/RT-20 designations violate Goal 4. First, the agencies maintain that the ROS/RT-20 designation does not identify "forest lands" consistent with OAR 660-006-0010. Second, the ROS/RT-20 designation allows conversion of forest lands. We agree that the county's decision does not comply with Goal 4.

A. Identification of Goal 4 Forest Lands

OAR 660-006-0005(7) defines forest land as lands acknowledged as forest land, or, in the case of a plan amendment "(a) Lands that are suitable for commercial forest uses, including adjacent or nearby lands which are necessary to permit forest operations or practices; and (b) Other forested lands that maintain soil, air, water and fish and wildlife resources." Thus, there are four types of forest lands protected by Goal 4:

1. Lands designated forest land in an acknowledged comprehensive plan;

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2. Lands suitable for commercial use;

3. Lands adjacent to or nearby commercial forest lands necessary to permit forest operations or practices; and

4. Other forested lands that maintain soil, air, water quality, and fish and wildlife resources.

B. Forest Lands Designated in Acknowledged Comp Plan

Forest Lands identified in the county's acknowledged Comp Plan include lands designated Timberlands and Farm/Forest Transitional. Comp Plan 2-9.

1. Timberlands

The Timberlands Comp Plan designation is intended "[t]o protect the County's forest economy by making possible economically efficient forest practices that assure the continuous growing and harvesting of forest tree species as the leading land use." Comp Plan 2-10. The Timberlands designation is implemented through the TR zone, a zone intended:

"to conserve and protect lands for continued timber production, harvesting and related uses, conserve and protect watersheds, wildlife habitat and such other uses associated with forests and to provide for the orderly development of both public and private recreational uses as appropriate and not in conflict with the primary intent of the zone, which is sustained production of forest products." Douglas County Code (DCC) 3.2.000.

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2. Farm/Forest Transitional Lands

Farm/Forest Transitional Lands are intended "[t]o conserve and maintain open space lands which have potential for forest use and farm use or both such uses, or are otherwise necessary to protect natural resource areas." Comp Plan 2-12. The Farm/Forest Transitional Lands designation is implemented through FF and AW zoning. Comp Plan 2-12. FF zoned land is intended

"to promote management, utilization, and conservation of forested grazing lands, lands which might not be forested but have such potential, and non-tillable grazing lands adjacent to forested lands. The purpose of this classification is to encourage sound management practices on such lands for agricultural or forest resource uses, including but not limited to: watershed management; recreation; fish and wildlife management; and agricultural activities consistent with sound forest and agricultural management practices, to retain lands within this district for farm and forest use, protecting such land from nonresource use and conflicts." DCC 3.5.000.

AW zoned land is intended

"to preserve the rural quality and conserve lands of marginal agricultural and timber production capability and which are predominantly in private ownership for agricultural and forest use, and to provide incentives for the beneficial use of these lands for resource use under intensive management." DCC 3.6.000.

C. ROS/RT-20 Protection of Acknowledged Forest Lands

We understand the county to take the position that it excluded all TR-zoned lands from those lands identified as eligible to apply for the ROS/RT-20

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designation. Response Brief 32-33; Record 59. The county argues that because the filters applied to identify lands eligible to request ROS/RT-20 designation exclude lands zoned TR, the ROS/RT-20 eligibility filter protects land currently acknowledged as forest land through the TR zone designation.

1000 Friends notes that the county approach protects lands currently designated Timberlands in the Comp Plan and zoned TR, but not lands designated Farm/Forest Transitional and zoned FF or AW. 1000 Friends Petition for Review 31-32. The ROS/RT-20 eligibility filter does not remove FF or AW zoned lands from consideration for ROS/RT-20 designation, so these lands are potentially eligible for ROS/RT-20 designation.

This subassignment of error is sustained.

D. ROS/RT-20 Treatment of Commercial Forest Lands in a PAPA

OAR 660-006-0010 sets out the means by which commercial forest land is to be identified in a PAPA. We understand that certain lands, like the TR-zoned land described above, have been removed from the map of lands eligible to apply for redesignation. For lands that remain available for redesignation consideration, the rule requires that the county first consider U.S. Natural Resources Conservation Service (NRCS) soil site class productivity data. A table in the

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Comp Plan indicates that properties with productivity above roughly 80 cubic acre feet per year have an NRCS Class ranging from I to IV. Agency Petition for Review, App 63. NRCS Class I to IV are excluded from eligibility for the ROS/RT-20 designation. Record 23.

The agencies assert that designating lands with productivity of less than 80 cubic acre feet per year as eligible to apply for an ROS/RT-20 designation fails to comply with Goal 4 for multiple reasons. With respect to commercial forest uses, the agencies point to our decision in Anderson v . Coos County , 62 Or LUBA 38 (2010). In Anderson , we recognized that LCDC has adopted rules requiring consideration of land productivity in determining whether land is suitable for commercial forest use but has not adopted a standard level of productivity test for land that qualifies as commercial forest land. In the absence of a bright line standard, LUBA has identified a range of productivity standards and discussed their probable relationship to commercial levels of productivity. We concluded that land with wood productivity of less than 20 cubic feet per acre per year is considered unsuitable for commercial forest use unless other factors compensate for the relatively low productivity, land with a low of approximately 40 cubic acre feet per year and a high of approximately 80 cubic acre feet per year is suitable for commercial forest use unless additional factors makes the soil unsuitable for commercial forest use, and land producing over 80 cubic feet per acre per year is almost certainly commercial forest land. 1000 Friends notes that LUBA has already held that the county may not simply exclude from forest land

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those lands with a productivity threshold below 80 cubic acre feet per year in Wetherell v . Douglas County , 50 Or LUBA 167, 199 (2005), rem'd on other grounds , 204 Or App 732, 132 P3d 41 (2006), rev'd and rem'd on other grounds , 342 Or 666, 160 P3d 614 (2007).

The county has not explained how Goal 4 is met by including as eligible for the ROS/RT-20 designation properties where available NRCS data indicates a productivity of less than 80 cubic acre feet per year but greater than 40 cubic acre feet per year. The ROS/RT-20 eligibility filter potentially allows conversion of any lands with a productivity less than 80 cubic acre feet per year, despite the fact that they may still be commercial forest land. Agency Petition for Review 12.

Further, the agencies argue that the county method does not complete the required assessment of soil productivity where NRCS data is lacking or inaccurate. Agency Petition for Review 12. See Oregon Shores Cons . Coalition v . Coos County , 50 Or LUBA 444, 466-67 (2005), aff'd , 204 Or App 245 (2006) (determining whether property is suitable for commercial forestry must include measurement of productivity of the land).

According to the county, accurate NRCS data is unavailable for parts of the county. However, where the data is unavailable or inaccurate, OAR 660-006-0010(b) requires the county to use the following sources, in the following order of priority:

1. Oregon Department of Revenue Western Oregon site class maps;

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2. USDA Forest Service plant association guides;

3. Other information determined by the State Forester to be of comparable quality; and

4. If the above data is unavailable, the alternative method set out in the Oregon Department of Forestry's Technical Bulletin may be used.

Because the county did not use the alternative sources for obtaining productivity data set forth in the OAR, the county's decision does not establish that it has identified all properties appropriately characterized as forest in accordance with the applicable OARs and removed them from eligibility for ROS/RT-20 designation.

In Rogue Advocates v . Josephine County , 66 Or LUBA 45 (2012), the county's internal rate of return system for identifying forest land was acknowledged in the 1990s. In 2008 and 2011, LCDC amended OAR 660-006-0010 to require identification of land suitable for commercial forest use by using specifically identified data sources. At the time of the Rogue Advocates case the county had not amended its regulations to incorporate the OAR standards into the local code, so the OAR standards applied directly to the application before the county. We held that "[a]pplication of OAR 660-006-0010 cannot be avoided by concluding, based on different dates or a different methodology than that set out in the rule, that the subject property is not forest land subject to Goal 4." Id . at 51.

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As discussed above, the county did not adopt findings or adopt a regulation requiring that compliance with legal standards be determined before property will be redesignated. The first page of the Forest Resources element of the Comp Plan states "[i]t is intended that the Forest Element satisfy all of the requirements of Statewide Planning Goal 4." Comp Plan 2-1. We agree with the agencies that the county process for identifying forest land must comply with that set forth in the OARs and the information sources specified in the OAR must be used by the county, in the OAR order of priority. The county did not make such a finding or adopt such a regulation. To the extent the county has established an alternative basis for determining whether its designation of property is consistent with Goal 4, it must use the priority system set forth in the OAR.

This subassignment of error is sustained.

E. ROS/RT-20 Treatment of Lands Necessary for Forestry Uses on Nearby and Adjacent Lands and Other Forested Lands

In addition to identifying commercial forest lands, counties are required to identify (1) forest lands necessary to support forest use on nearby and adjacent lands, and (2) other forested lands necessary to maintain soil, air, and water quality and protect fish and wildlife resources. OAR 660-006-0010(2)(c); Agency Petition for Review 14, 16. 1000 Friends argues that the county used only two data sets: (1) lands zoned TR and (2) lands with an NRCS site Class of IV or higher, and lands within a given radius of an urban growth boundary, urban unincorporated community or rural community boundary, to exclude lands from

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ROS/RT-20 eligibility. Record 23, 38. The agencies maintain that the ROS/RT-20 designation is inconsistent with Goal 4 because the ROS/RT-20 designation does not conserve forest land. Agency Petition for Review 16-18. Rather, the agencies argue, it allows houses on 20 acre lots.

As recognized above, OAR 660-006-0010(c) requires the county to evaluate whether nearby or adjacent lands are necessary to permit forest operations. Agency Petition for Review 15; 1000 Friends Petition for Review 32. 1000 Friends argues that the county's decision provides no explanation of how these exclusions would protect all forestry uses and lands necessary to support forestry uses on nearby or adjacent lands. Similarly, the county's decision provides no explanation of how these exclusions protect other forested lands necessary to protect soil, air, and water quality and fish and wildlife resources. We agree with the petitioners.

This subassignment of error is sustained.

F. ROS/RT-20 Predominance Test Treatment of Forest Land

The agencies assert the predominance test adopted as part of the PAPA violates Goal 4. Agency Petition for Review 9. Under the predominance test, if 60 percent of a specific parcel at issue is characterized by having less than Class I to IV soil, and the parcel is at least 20 acres in size, the parcel may obtain the ROS/RT-20 zone through a quasi-judicial application. Agency Petition for Review 19. The agencies argue that this creates a situation where 40 percent of

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the property, which should be protected as forestland because it has Class I to IV soils, could be redesignated in violation of Goal 4.

It is not clear to us that any land with an NRCS Class I-IV classification can, as the agencies argue, potentially be redesignated, because, as we understand the county's representation, those lands are not included in the ROS eligible lands. Agency Petition for Review 19. Also, the county is correct that OAR 660-006-0010 does not establish how land is to be designated when the property has a mix of soils. We conclude, however, that the predominance test may not conserve forest land and therefore is inconsistent with Goal 4. In a quasi-judicial setting under the newly adopted county process, the applicant will seek an ROS Comp Plan map designation. Once a property is given the ROS Comp Plan map designation, each lawfully established parcel is reviewed to determine whether each parcel is eligible for the RT-20 zoning classification. Record 63. The determination of whether property may obtain the RT-20 designation turns on whether the land consists of at least 60 percent ROS eligible land. Id . The county does not establish how Goal 4 is met given that it is not clear that other forested lands necessary to support forest uses are protected by the ROS/RT-20 designation and the potential increase in residential density.

This subassignment of error is sustained.

G. Consistency with OAR 660-006-0015

The agencies also contend that the ROS/RT-20 designation violates OAR 660-006-0015, which requires the county to either designate and zone forest land

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consistent with forest conservation requirements, or fall within one of the exclusions set forth in the rule. Agency Petition for Review 9, 18. For the reasons discussed above, the ROS/RT-20 eligibility filter does not ensure that lands properly inventoried as forest lands under Goal 4 will be implemented with

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a protective zoning classification and the county has not asserted that any of the exclusions apply.

This subassignment of error is sustained.

H. ROS/RT-20 Inadequate Factual Base

1000 Friends also argues that there is not an adequate factual base supporting the decision because improper underlying data was used to decide which properties were included on the eligibility map. 1000 Friends Petition for Review 35. We agree that the decision lacks an adequate factual base because it fails to establish that the lands deemed eligible for redesignation do not include protected lands necessary for forestry uses on adjacent or nearby lands or other forested lands protecting soil, air, and water quality and fish and wildlife resources. Further, the PAPA did not utilize the data priority list set forth in OAR 660-006-0010.

This subassignment of error is sustained.

The agencies' first assignment of error and 1000 Friends' second assignment of error are sustained.

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GOAL 3

Goal 3 (Agricultural Lands) is "[t]o preserve and maintain agricultural lands." OAR 660-015-0000(3).

A. Identification of Goal 3 Agricultural Lands

OAR 660-033-0020(1) provides, in part, that:

"(a) 'Agricultural Land' as defined in Goal 3 includes:

"(A) Lands classified by the U.S. Natural Resources Conservation Service (NRCS) as predominantly Class I - IV soils in Western Oregon and I-VI soils in Eastern Oregon;

"(B) Land in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing and future availability of water for farm irrigation purposes; existing land use patterns; technology and energy inputs required; and accepted farming practices; and

"(C) Land that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands.

"(b) Land in capability classes other than I-IV/I-IV that is adjacent to or intermingled with lands in capability classes I-IV/I-VI within a farm unit, shall be inventoried as agricultural lands even though this land may not be cropped or grazed[.]"

Similar to the agencies' argument in their first assignment of error addressing compliance with Goal 4, the agencies argue that the ROS/RT-20 filter

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for identifying eligible land does not exclude all agricultural land that Goal 3 requires be preserved and maintained. Agency Petition for Review 29. The ROS/RT-20 method for excluding agricultural land from those eligible for the ROS plan designation eliminated properties with the following characteristics:

" I. Agricultural Land Protection:

"1. Not Lands that are NRCS Soil Class 1-4

"2. Not Lands that are identified as High Value Farm Land (ORS 195.300) within the dataset provided by DLCD

"3. Not Lands that are identified as viticulture lands within the dataset provided by DLCD

"a) Crop Land Protection:

"4. Not Lands that are zoned EFU-Farm Cropland by the Douglas County Comprehensive Plan

"5. Not Lands that are identified within the Cropland boundaries dataset provided by DLCD

"b) Grazing Land Protection:

"6. Not Lands that are zoned EFU-Farm Grazing by the Douglas County Comprehensive Plan

"7. Not Lands that are identified as hay/pasture lands within the 2011 National Land Cover Database." Record 62.

For the reasons explained below, we agree with the petitioners that the ROS/RT-20 filter fails to adequately identify Goal 3 agricultural land excluded from eligibility for the ROS/RT-20 designation.

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The county argues that the ROS/RT-20 filter excludes agricultural land. Response Brief 29. The filter excluded land zoned EFU from eligibility. The ROS/RT-20 designation is only potentially available for Farm/Forest Transitional Land. Response Brief 29, 39. Pursuant to the Comp Plan, Farm/Forest Transitional lands consist primarily of:

"(1) Lands in areas where the lotting pattern is predominantly below 40 acres;

"(2) Lands where the predominant Natural Resource Conservation Service (NRCS) soil class is IV through VII where those soils have not historically been used for agricultural purposes; as an example, those lands that have not received the farm tax deferral;

"(3) Forest lands which are predominantly cubic foot site class 5 or below in southern Douglas County and 4 thorough 5 in northern, central, and coastal Douglas County; or

"(4) Other lands needed to protect farm or forest uses on surrounding designated agricultural or forest lands." Comp Plan 2-9, 2-10.

We agree with the county that excluding the EFU-zoned land from potential redesignation is a substantial first step toward protecting Goal 3 lands. Response Brief 40. However, the rule requires consideration of factors which could affect the suitability of land currently designated Farm/Forest Transitional, such as available technology and energy inputs and climate conditions. Accordingly, we conclude that the ROS/RT-20 filter is still required to apply the factors in OAR 660-015-0033(20).

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B. ROS/RT-20 Protection of Lands Suitable for Farm Use

The ROS/RT-20 filter excludes lands with an NRCS soil class of I to IV consistent with OAR 660-033-0020(1)(a)(A). However, it must also exclude "[l]and in other soil classes that is suitable for farm use as defined in ORS 215.203(2)(a), taking into consideration soil fertility; suitability for grazing; climatic conditions; existing further availability of water for farm irrigation purposes; existing land use patterns; technological and energy inputs required; and accepted farming practices[.]" OAR 660-033-0020(1)(a)(B). Each of these factors must be considered. Wetherell v . Douglas County , 52 Or LUBA 677, 680 (2006). We agree with petitioners that the county's analysis used to identify eligible lands did not consider all of those required factors.

Climatic conditions are addressed in part by eliminating viticulture land in the DLCD data set, but the decision does not address climate conditions' impact on non-grape crops. Agency Petition for Review 33.

The county excluded land zoned EFU-Farm Grazing, but this is not sufficient to preserve and maintain land suitable for grazing. Agency Petition for Review 33. The county's approach does not appear to consider the grazing capacity, if any, of land with FF or AW designations. 1000 Friends Petition for Review 17. The ROS/RT-20 eligibility filter does consider suitability for grazing by evaluating the 2011 National Land Cover Database. However, in addition to

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being potentially out of date, we understand the 2011 National Land Cover Database to include another category of land suitable for grazing that the county did not address. 1000 Friends Petition for Review 21. Suitability of lands for grazing must be addressed.

This subassignment of error is sustained.

C. Protection of Land Necessary to Permit Farm Practices on Nearby or Adjacent Lands and Lands Intermingled With a Farm Unit

OAR 660-033-0020(1)(a)(C) provides that the definition of agricultural land also includes land "that is necessary to permit farm practices to be undertaken on adjacent or nearby agricultural lands." Petitioners argue that the ROS/RT-20 filter fails to address these lands. Agency Petition for Review 33; 1000 Friends Petition for Review 27.

The county argues that Goal 3 land has already been given the EFU designation and cannot be changed to ROS/RT-20. The county points to Comp Plan 3-1, which provides that "[a]gricultural land shall be inventoried and preserved by adopting Exclusive Farm Use zones pursuant to ORS Chapter 215." The county also points to the purpose sections stating that the "Exclusive Farm Use zone is to be applied to all lands designated 'Agriculture' in the

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Comprehensive Plan in accordance with LCDC Goal No. 3 and the Douglas County Agricultural Element." Response Brief 40; DCC 3.3.000, 3.4.000.

The AW zones' purpose statement explains that the "classification is intended to preserve the rural quality and conserve lands of marginal agricultural and timber production capability and which are predominately in private ownership for agricultural and forest use, and to provide incentives for the beneficial use of these lands for resource use under intensive management." DCC 3.6.000. With respect to FF lands,

"The Farm Forest Classification is intended to promote management utilization and conservation of forested grazing land, land which might not be forested but have such potential, and non-tillable grazing and adjacent farm forested lands. The purpose of this classification is to encourage sound management practices on such lands for agricultural or forest resource uses, including but not limited to: watershed management; recreation; fish and wildlife management; and agricultural activities consistent with sound forest and agricultural management practices, to retain lands within this district for farm and forest use, protecting such land from nonresource use and conflicts." DCC 3.5.000.

Lands zoned FF or AW may be utilized as part of farm units or to assist in farm use of adjacent of nearby lands. The predominance test appears to allow redesignating and rezoning these lands to ROS/RT-20 if at least 60 percent of a parcel meets the ROS/RT-20 eligibility filter. The county has not established that lands required to be protected as Goal 3 lands are protected by the ROS/RT-20 eligibility filter.

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The agencies' third assignment of error and 1000 Friends' first assignment are sustained.

GOAL 5

Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces) is "[t]o protect natural resources and conserve scenic and historic areas and open spaces." OAR 660-015-0000(5). In our earlier discussion of whether goal compliance must be addressed we indicated that we would address Goal 5 separately. We do so here.

OAR 660-023-0250(3) establishes when Goal 5 is properly considered in a PAPA and explains that:

"Local governments are not required to apply Goal 5 in consideration of a PAPA unless the PAPA affects a Goal 5 resource. For purposes of this section, a PAPA would affect a Goal 5 resource only if:

"(a) The PAPA creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protect a significant Goal 5 resource or to address specific requirements of Goal 5;

"(b) The PAPA allows new uses that could be conflicting uses with a particular significant Goal 5 resource site on an acknowledged resource list; or

"(c) The PAPA amends an acknowledged [Urban Growth Boundary (UGB)] and factual information is submitted

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demonstrating that a resource site, or the impact areas of such a site, is included in the amended UGB area."

OAR 660-023-0250(3)(c) does not apply because the UGB is not being amended. OAR 660-023-0250(3)(b) does not apply because no particular Goal 5 resource site is being opened to new uses. Thus, the county is required to consider Goal 5 at this stage if the PAPA creates or amends a resource list or acknowledged plan or regulation adopted to protect a significant Goal 5 resource or to address specific Goal 5 requirements. OAR 660-023-0250(3)(a). The parties do not allege that the eligibility map amends or creates a resource list, leaving only the question of whether this PAPA creates or amends a plan or land use regulation protecting a Goal 5 resource or responding to Goal 5 requirements.

Peripheral and Sensitive Big Game Habitat are protected Goal 5 resources in the county. Peripheral Big Game Habitat is protected through the established Peripheral Big Game Habitat Overlay (BGHO). As petitioners explain, the BGHO limits residential density to one dwelling per 40 acres. Agency Petition for Review 24. The county findings expressed an intent to rely on the continued application of existing Goal 5 zoning overlays to protect Goal 5 resources, explaining that:

"Implementation: Any development approved as a result of the implementation of this plan would be subject to all existing restrictive Goal 5 zoning overlays." Record 53.

Thus, the BGHO protection mechanism is unaltered by the PAPA and the 20-acre lot size would not allow more than one dwelling per 40 acres in the ROS/RT-

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20 areas containing identified habitat for peripheral big game as a matter of right.

As the agencies acknowledge, the county protects Peripheral Big Game Habitat through the imposition of the TR zoning. Agency Petition for Review 22. Residential uses on TR-zoned lands are limited to one dwelling per 80 acres in order to protect Peripheral Big Game Habitat. Pursuant to Goal 5, if TR-zoned land may be redesignated under the amendment, an economic, social, environmental, and energy (ESEE) analysis is required because houses will be allowed by right on 20-acre lots rather than 80-acre lots. OAR 660-023-0040(1) provides that the steps in the standard ESEE analysis include identifying conflicting uses, determining the impact area and developing a program to achieve Goal 5. As we understand it, however, no property currently zoned TR is included on the ROS/RT-20 eligibility map. As a result, the ROS/RT-20 amendment does not change the regulation protecting Peripheral Big Game Habitat. Response Brief 46-47.

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The agencies argue that this PAPA amends a plan regulation that protects a Goal 5 resource because the predominance test will allow properties with land zoned TR to be rezoned if 60 percent of the parcel complies with the ROS/RT-20 eligibility filter. Again, we understand TR-zoned lands to be excluded from the eligible lands. Response Brief 46-47. However, to the extent the predominance test could be used to redesignate TR-zoned land in the future, OAR 660-023-0250(3)(b) would require an ESEE analysis at the time of the property specific amendment because that application would allow removal of the BGHO protection mechanism for an identified resource site.

The agencies also argue that Goal 5 resources in the area are not limited to big game, and at a minimum also include a variety of bird species. Agency Petition for Review 27. We note that the DCC includes a Special Bird Habitat Overlay. DCC 3.32.500. As we observed above, the findings provide that existing overlays will continue to apply. To the extent the agencies argue that the county was required to address certain bird species or other Goal 5 resources in the PAPA, the argument is not sufficiently developed for our review.

Agencies' second assignment of error is denied.

GOAL 11

Goal 11 (Public Facilities and Services) is: "[t]o plan and develop a timely, orderly and efficient arrangement of public facilities and services to serve as a

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framework for urban and rural development." OAR 660-015-0000(11). FODC contends that the county failed to adequately analyze whether the amendments comply with Goal 11. FODC argues that a statement in the findings that the majority of the properties will be served by private water and sewer is unsupported in the record and that references to fire protection are inadequate. FODC Petition for Review 49-50.

We agree with county that its Goal 11 analysis is sufficient for this stage of county planning with respect to water. The county anticipated that the majority of the properties designated by the SORPP would be served by private water and sewer system. Record 56. With respect to water, the SORPP analysis stated that water would be administered on a site by site basis with the knowledge that studies showed a significant majority of the properties under consideration were proximate to groundwater sources and the existing code requires a request for a dwelling or land division establish access to a year round supply of potable water. Record 293.

With respect to wastewater, the county advises in its brief that the minimum lot size is 20 acres and that Oregon Department of Environmental Quality (DEQ) rules "effectively establish a presumption that parcels 10 acres and larger can utilize an onsite wastewater treatment system." Response Brief 60. The DEQ rules cited provide that if a DEQ agent plans to deny a permit for a parcel 10 acres or larger they must provide the permit applicant with a notice of

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intent to deny, set forth the reasons for the planned denial and offer a contested case hearing to challenge the denial.

The county does not indicate that the DEQ rules it cites are referenced in the record but rather appears to introduce them for the first time in the county's response brief. The county does not direct us to any findings or evidence in the record addressing wastewater. The county is required to establish compliance based on the findings and evidence in the record. While the DEQ rule may indicate that generally in Oregon, properties of 10 or more acres in size are able to support onsite wastewater systems, the county points us to no evidence that is the case within the portion of Douglas County at issue.

The county noted that lands lacking emergency services were eliminated from consideration early in the process. Record 55. The county references proximity of the majority of candidate lands to fire districts as established in the SORPP. Record 289. The county explains that for the 5 percent of land which would receive fire protection from Douglas Fire Protective Association (DFPA), the record supports the conclusion that there would not be more demand created for DFPA funds. The county also directs us to its conclusion that ten years of data indicated less than 2 percent of fires resulted from residential structures. Response Brief 58-59. Further, the county argues that future development would require compliance with forest protection standards set out in DCC 3.5.160 and 3.5.170. To our knowledge there is, however, no analysis of the likelihood of increased fire as more residences are potentially introduced into the area, or

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discussion of the capacity of the existing fire service organizations to provide more service.

FODC's third assignment of error is sustained as to wastewater and fire protection, and otherwise denied.

GOAL 2

Statewide Planning Goal 2 (Land Use Planning) is "[t]o establish a land use planning process and policy framework as a basis for all decisions and actions related to use of land and to assure an adequate factual base for such decisions and actions." Goal 2 requires that decisions be (1) coordinated and (2) supported by an adequate factual basis.

A. Adequacy of Coordination

As FODC explains, we have held that:

"[t]he Goal 2 requirement to coordinate comprehensive plan and implementing measures with the plans of affected governmental units is satisfied by (1) inviting an exchange of information between the planning jurisdiction and affected governmental units, and (2) using the information gained in that exchange to balance the needs of all affected government units and the citizens they represent. Columbia Pacificv . City of Portland , 76 Or LUBA 15, 49 (2017), rev'd and remanded on other grounds , 289 Or App 739, 755-56, 412 P3 258, rev den , 363 Or 390 (2018).

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Counties are responsible for coordinating planning actions within their jurisdiction. ORS 195.025(1). Coordination is limited to "legitimate concerns" of the commenting party. Borton v . Coos County , 52 Or LUBA 46, 65 (2006).

1. Adequacy of Coordination with Agencies

Goal 2 requires that the county must adopt findings responding to legitimate concerns. Waugh v . Coos County , 26 Or LUBA 300, 314-15 (1993). DLCD v . Douglas County , 33 Or LUBA 216, 222 (1997). The agencies argue that the decision does not explain why the challenged decision failed to consider certain data suggested by the agencies. The county does not point us to responsive findings but rather advises in its brief that it decided not to use the data the agencies suggested. We agree with petitioners that the county did not meet its Goal 2 coordination obligations.

The county lacked NRCS soils productivity data in some cases and the agencies objected to the PAPA not following the priority scheme in OAR 660-006-0010. Specifically, the agencies wanted the county to remove from ROS/RT-20 consideration lands with Oregon Department of Revenue (DOR) classifications FA, FB, FC, FD, FE, FF and FG. Record 1217. In the county's view, this more restrictive approach was not required. FODC argues that:

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"ODFW's comments provided survey analysis that supports the conclusion that as parcel size decreases, landowners are much less interested in income from timber production. Rec. 1142. Further, ODFW explained that as building density increases and parcel sizes decrease, both industrial and non-industrial private forest owners are less likely to invest in management activities like planting or thinning, and that such lack of management can substantially reduce timber supply and overall commercial vitality of forestland. Rec. 1143." FODC Petition for Review 20.

We agree that the county considered the agencies' request and did not violate the Goal 2 coordination requirement by electing not to follow it. The county was required, however, to adopt findings explaining why it did not accept the agencies' request. Also, as we noted previously in this decision, failure to follow the priority set out by rule violates Goal 4 as implemented by the administrative rule.

The agencies' fourth assignment of error is sustained.

2. Adequacy of Coordination with Cities

FODC asserts that the county failed to coordinate with affected cities concerning Goal 10 (Housing), Goal 7 (Natural Hazards), and Goal 11 (Public Facilities).

a. Goal 10 (Housing)

Goal 10 is "[t]o provide for the housing needs of citizens of the state." FODC argues that the county failed to coordinate with cities in the region "to address the needs of the region, fair allocation of housing, and future ability to expand urban growth boundaries." FODC Petition for Review 8.

OAR 660-008-0030 provides that:

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"(1) Each local government shall consider the needs of the relevant region in arriving at a fair allocation of housing types and densities.

"(2) The local coordination body shall be responsible for ensuring that the regional housing impacts of restrictive or expansive local government programs are considered. The local coordination body shall ensure that needed housing is provided for on a regional basis through coordinated comprehensive plans."

The decision estimates an additional 375 to 750 homes may result based upon changes of property land use designations to ROS/RT-20. Record 65. As the local coordination body, the county was responsible for ensuring that the regional housing impacts of the program were considered and the needs of the region with respect to the allocation of housing. The City of Roseburg (the city) expressed concerns about the ROS/RT-20 program. Record 659. These concerns included the potential that the county's efforts would "negatively affect the work [the city is] trying to complete in trying to supply additional housing within the city limits as well as the UGB" and 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." Id . The county does not direct us to any findings responding to the city's legitimate concerns.

FODC's first subassignment of error is sustained.

b. Goal 7 (Natural Hazards) and Goal 11 (Public Facilities)

Goal 7 (Areas Subject to Natural Hazards) is "[t]o protect people and property from natural hazards." OAR 660-015-0000(7). Goal 11 (Public

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Facilities) is to "[t]o plan and develop a timely, orderly and efficient arrangement of public facilities and services to serve as a framework for urban and rural development." FODC argues that the county failed to adequately coordinate with local cities concerning fire risk and availability of fire protection services. We agree with FODC that the county failed to conduct adequate coordination with respect to Goals 7 and 11.

In its response to this assignment of error, the county relies in part on communications with local jurisdictions during the SORPP process. Although the county relied on a substantial amount of data and analysis generated during the SORPP process, the ROS/RT-20 amendment process was separate and distinct from the previous SORPP process. The county provides no support for its position that the county did not need to engage with the cities with respect to the specific PAPA under consideration and the potential impact of that decision on the ability of the governmental entities to provide services within their jurisdiction or extend services such as fire protection to include new residents on ROS/RT-20 lands. Similarly, the county has not pointed us to evidence in the record that it coordinated with local governments with respect to planning for Goal 7 natural hazards, such as wildfire.

FODC's second subassignment of error is sustained.

B. Adequacy of Factual Base

To establish that the county's decision is supported by an adequate factual base as required by Goal 2, the county's decision must either include findings

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based on substantial evidence in the record establishing compliance with the relevant legal standards, or the county must provide argument in its brief with citations to the record demonstrating the legal standards are met. West Hills Development Co . v . Washington County , 37 Or LUBA 46, 55 (1999). Substantial evidence is evidence a reasonable decision maker would rely upon to make a decision, and provides an adequate factual base for a legislative decision. 1000 Friends of Oregon v . City of North Plains , 27 Or LUBA 372, 378, aff'd , 130 Or App 406, 882 P2d 1130 (1994).

The county concluded that the ROS/RT-20 designated lands "serve as buffers between higher and lower intensity land use areas and maintain protection for higher value farm and forest lands." Record 6. Implementation of the ROS/RT-20 designation may, according to the county "provide some land owners the ability to separate less valuable lands in order to more appropriately manage high value commercial forest lands." Record 39. The county states in its decision that it is not anticipated that the designation and ultimately development of ROS/RT-20 designated lands "will have any impact on the functionality of important resource lands[.]" Record 58.

FODC argues that the record lacks substantial evidence that the 20-acre lots allowed by the ROS/RT-20 designation and the two-mile buffers established by the requirement that these lands be proximate to cities and unincorporated communities supports continued resource use and the protection of agriculture and forest land. FODC Petition for Review 18. FODC points to evidence

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supporting a conclusion that the 20-acre lots with a dwelling by right would be detrimental to resource uses, noting that in its comments to the county DCLD included "citation to a study that determined that where there is one house per 20 acres, there is a 25 [percent] chance of commercial forestry occurring . [Record 674.] In contrast, the likelihood of resource management in support of commercial forestry goes up exponentially as density decreases, where one house per 80 acres results in a 75 [percent] likelihood of commercial forestry." FODC Petition for Review 19 (emphasis in original; footnotes omitted). 1000 Friends and FODC argue that the underlying data used to make decisions was not included in the record. 1000 Friends Petition for Review 24; FODC Petition for Review 23. We agree with petitioners that (1) the background reports the county relies upon must be incorporated into the comprehensive plan, Hawksworth v . City of Roseburg , 64 Or LUBA 171 (2011); and that (2) the county's reliance on hyperlinks found in documents that are in the record to reference data that is not in the record is insufficient to make the information accessed by clicking on those hyperlinks part of the record. Oster v . City of Silverton , ___ Or LUBA ___ (LUBA No 2018-103, Order, November 27, 2018 (slip op at 5 n 2); Terra Hydr Inc . v . City of Tualatin , 68 Or LUBA 511, 513 (2013) (concluding that an electronic link to a document was insufficient to make the document part of the record).

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For the reasons set forth above, we conclude that the county has not adequately addressed how the ROS/RT-20 designations comply with Goals 3 and 4 or based its decision on substantial evidence in the record.

FODC's first assignment of error, third, fourth and, fifth subassignments of error are sustained.

FODC's first assignment of error and the agencies' fourth assignment of error are sustained.

ORS 215.788-215.794

1000 Friends argues that the legislative process for reevaluating the designation of resource lands set forth in ORS 215.788-215.794 is exclusive, and provides legislative history to support its argument that the legislature's intent was that this process be the only means of conducting the type of evaluation the county engaged in here. The county responds, and we agree, that this provision does not apply. ORS 215.788(1) provides that:

"For the purposes of correcting mapping errors made in the acknowledgment process and updating the designation of farmlands and forestlands for land use planning, a county may conduct a legislative review of lands in the county to determine whether the lands planned and zoned for farm use, forest use or mixed farm and forest use are consistent with the definitions of 'agricultural lands' or "'forest lands' in goals relating to agricultural lands or forestlands."

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First, as county has pointed out repeatedly, no lands were given a new comprehensive plan designation or land use zone in this process. Thus, no mapping errors were corrected. Second, the county sought in this decision to establish its own definitions of agricultural and forest land and this decision was not verifying the accuracy of maps as discussed in ORS 215.788. Lastly, the legislature could have made its intent clear if it intended that the type of review conducted by the county could only be completed using the procedure set forth in these provisions. We note, however, that following the structure set forth in the statutes might assist the county is ensuring compliance with the relevant goals.

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1000 Friends' third assignment of error is denied.

ORS 215.780

Pursuant to ORS 215.780(1), the minimum parcel size generally is (1) 80 acres for land zoned exclusive farm use, not designated rangeland, (2) 160 acres for land zoned exclusive farm use and designated rangeland, and (3) 80 acres for land designated forest land. 1000 Friends argues that the decision violates this

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provision because the RT-20 zone allows 20 acre lots. We agree with the county that its decision does not impact the minimum lot size of parcels zoned exclusive farm use, because exclusive farm use parcels are not eligible for RT-20 zoning.

The county has not established, however, that land designated forest land will not be impacted by this decision. As we discussed in our resolution of petitioners' challenges under Goal 4, the OAR defines forest land broadly, and the county's decision does not exclude from future RT-20 designation all land that might be forest land, yet it allows 20-acre lots that do not meet the 80-acre minimum set forth in ORS 215.780.

1000 Friends' fourth assignment of error is sustained.

COUNTY COMPREHENSIVE PLAN POLICIES

ORS 197.175(2)(d) provides that local land use decisions must be consistent with the locality's acknowledged comprehensive plan. FODC

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charges in its second assignment of error that the challenged decision is not consistent with the Comp Plan and that the allowance of dwellings on ROS/RT-20 lands is inconsistent with the Forest Element, Agriculture and Rural Lands Element, the Rural Land Designation and Rural Land policies, the state laws these Comp Plan provisions implement as well as Comp Plan population and housing policies. FODC Petition for Review 24-48. FODC argues that the challenged decision is facially inconsistent with the Comp Plan. FODC Petition for Review 26. We agree.

As FODC observes, the Comp Plan requires that a PAPA involving forest land must include in forest lands, those lands "necessary to permit forest operations and practices that maintain soil, air, water and fish and wildlife resources." Comp Plan 2-1. As we discussed with respect to Goal 4, the ROS/RT-20 designation does not preserve these lands for those purposes. Forest Resource policies support limiting expansion of rural development into forest land and emphasizing productive use of those lands. Comp Plan 2-7, 2-8. Contrary to those objectives, the ROS/RT-20 designation promotes expansion of rural development.

Allowance of parcelization is inconsistent with the existing policy to encourage consolidation of parcels to create more viable resource units and restrict the amount of land used for dwellings. Comp Plan 2-12. The decision is also inconsistent with Rural Land policies requiring that when rural land is designated, population projections and available potential homesites will be

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evaluated. Comp Plan 3-14. FODC argues that the required analysis did not occur and the county does not direct us to such an analysis. FODC Petition for Review 36.

Population policies promote growth in established service areas and require coordination in order to maximize the efficiency of public facilities. Comp Plan 10-7. Coordination of housing is also required. 12-10. As we held in our discussion of compliance with Goal 2, necessary coordination did not occur.

FODC also argues that the minimal findings the county adopted are inadequate. FODC Petition for Review 28. 31, 37, 42. The county concedes that remand is required in order for the county to adopt findings with respect to the goals and policies cited by FODC. Response Brief 72. In light of our conclusion that the ROS/RT-20 designation is inconsistent with the above Comp Plan policies identified by FODC, it is unnecessary for us to address FODC's findings challenge or the county's response that concedes that its findings are inadequate.

FODC's second assignment of error is sustained.

CONCLUSION

The county identified and refined material generated in the SORPP process and used it to develop a mechanism allowing it to give land currently protected by Goal 3 or 4 less restrictive zoning. In adopting the PAPA, the county created

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a streamlined path for designating certain lands identified for farm or forest use, but not considered by the county to be prime forest land or exclusive farm use land, the more flexible ROS/RT-20 designation. As discussed in this opinion, however, Oregon has developed a complex system of administrative rules to protect and conserve farm and forest land for those uses and limit when land deemed farm or forest under state law may be converted to other uses. We find that the county was not required to utilize the process set forth in ORS 215.788-215.794 in its effort to pre-identify properties which may properly be redesignated. The county failed, however, to ensure that all the types of land that state law requires be preserved as or in support of farm and forest land under Goals 3 and 4 were in fact preserved. We conclude that the decision fails to comply with Goals 3 and 4 and does not ensure that minimum parcel sizes required by ORS 215.780(1) are maintained. We also conclude that the county failed to coordinate with local jurisdictions as required by Goal 2, concerning Goals 7, 10 and 11 and, given that it did not include much of the underlying data, did not have an adequate factual base for its decision as required by Goal 2. We also conclude that the county did not adequately address wastewater and fire protection under and Goal 11. Finally, we conclude that the county is not required to establish compliance with Goal 5 at this stage.

The county's decision is remanded.