Chapter 19.46
AMENDING AND UPDATING THE COMPREHENSIVE PLAN
Sections:
19.46.030 Plan amendment application requirements.
19.46.040 Plan amendment review criteria.
19.46.050 Nonresource land criteria.
19.46.010 Purpose.
The purpose of this chapter is to implement the procedures and criteria for amending any element of the comprehensive plan pursuant to the requirements of Goal 11 of the County’s goals and policies. [2005 RLDC § 46.010.]
19.46.020 Review procedure.
A. Applications to amend any element of the comprehensive plan shall be processed using Planning Commission review procedures (Chapter 19.24 JCC) and/or Board of Commissioners review procedures (Chapter 19.25 JCC).
B. Applications to amend any element of the comprehensive plan shall be reviewed and decided as follows.
1. Review Authority of the Planning Commission. The Planning Commission shall review all applications to amend any element of the comprehensive plan. Planning Commission reviews shall be subject to the following rules:
a. The Planning Commission shall make the final decision on applications to amend any element of the comprehensive plan unless the applications involve an exception to statewide planning goals or involve lands designated as agricultural or forest lands under a statewide planning goal.
b. The final decision shall be in the form of written findings that explain the standards and criteria considered relevant to the decision, state the facts relied upon in rendering the decision and explain the justification for the decision based on the applicable standards and criteria, and shall be accompanied by a recommended ordinance.
c. Final decisions of the Planning Commission may be appealed on the record to the Board as provided in Chapter 19.33 JCC.
d. Applications involving exceptions or agricultural or forest lands shall be reviewed by the Planning Commission in a public hearing. At the conclusion of the hearing the Planning Commission shall deliberate and make a recommended decision to the Board.
e. All Planning Commission hearings shall conform to the notice and hearing rules as set forth in Division III of this title.
f. Final authority of the Planning Commission to act upon plan amendments is for appeal purposes only, and does not include the authority to implement changes by ordinance.
2. Review Authority of the Board. The Board’s authority to review actions by the Planning Commission to adopt, amend or repeal any part of the comprehensive plan shall be subject to the following rules:
a. Where the Planning Commission makes a recommended decision to the Board pursuant to subsection (B)(1)(d) of this section, the Board shall conduct a full de novo hearing regarding the application. The Board’s hearing shall conform to the notice and hearing rules as set forth in Division III of this title, and any other applicable state law or rule.
b. This policy shall not prevent or limit the Board’s authority to initiate a hearing to review any Planning Commission action regarding the comprehensive plan pursuant to provisions of this title.
c. The Board shall have sole authority to implement changes to the County’s comprehensive plan by ordinance. [2005 RLDC § 46.020.]
19.46.030 Plan amendment application requirements.
A. Applications to amend the text or maps of the comprehensive plan may be initiated by the Board, the Planning Commission, the Planning Director, interested agencies or individuals.
B. All applications shall be submitted on forms provided by the Planning Director and shall be accompanied by required application fees; however, requests initiated by the Board, the Planning Commission or the Planning Director shall not require fees.
C. At a minimum the application shall:
1. Identify the specific policy, inventory, map, plan or ordinance sought to be changed;
2. Explain why the change is being requested (change in circumstances, new or different information, revise incorrect or incomplete information contained in previous efforts, etc.);
3. Include the exact language required to accomplish the proposed change in the text; or, in the case of a map amendment, include a scaled zoning map precisely identifying the area and designations to be changed;
4. Include a list of all state and local goals, together with a written explanation stating why the goals do or do not apply, and if the applicant believes one or more of the goals apply, how the proposed application is consistent with the requirements of the applicable goal or goals. The Planning Director or Review Body may specify different state and County goals as applicable to the application.
5. In the event the proposed change relates to an inventory, database, plan or ordinance, the application shall include the scientific and technical data, reports or other evidence prepared by an expert in that field necessary to support the change. It shall be the function of the Review Body to determine, based upon substantial evidence in the record, whether the particular training and experience of a witness qualifies the witness to testify as an expert. Specifically:
a. More detailed soil data may be utilized to define classifications or characteristics of soils contained in the County’s database, provided the data is credible and attested by a certified soil scientist; and
b. In the case of a change to a Goal 5 inventory, the application shall be accompanied by evidence demonstrating compliance with OAR Chapter 660, Division 23, as amended, which may include one or more economic, social, environmental and energy (ESEE) analyses.
6. In the event the proposed change relates to a map amendment, the application shall contain detailed evidence and other documentation showing how the request meets the criteria contained in JCC 19.46.050. [2005 RLDC § 46.030.]
19.46.040 Plan amendment review criteria.
A. Amendments to a plan and zone map shall demonstrate compliance with all applicable statewide and County goals and policies.
B. Requests involving changes for lands from a resource designation to a nonresource designation shall either comply with statewide exception criteria contained in ORS 197.732, and as implemented in OAR Chapter 660-004 or demonstrate the land is nonresource pursuant to the criteria contained in JCC 19.46.050.
C. Requests involving changes to the plan and/or zone maps shall demonstrate the land has adequate carrying capacity to support the densities and types of uses allowed by the proposed plan and zone designations. The adequacy of carrying capacity, at a minimum, shall be evaluated using the criteria listed below. The criteria are to be considered together to determine whether the geography of the land is suited to support the kind of development associated with the proposed designations. With the exception of subsection (C)(1) of this section, the application of any one criterion is not intended to be determinative of carrying capacity alone, unless the Review Body finds the importance of a specific benefit or detriment associated with the criterion overrides the consideration of other criteria. Nevertheless, in order to determine the adequacy of carrying capacity, the analysis must consider and address all of the listed criteria in relationship to one another. Sites may be altered to achieve adequate carrying capacity, but as alterations become more extensive, technical or difficult to perform or maintain, the greater the burden of proof shall be on the applicant to demonstrate compliance with the following criteria:
1. The proposed density and types of uses can be supported by the facility, service and other applicable development standards contained in this title or contained in other applicable federal, state and local rules and regulations governing such densities and types of uses;
2. Other physical characteristics of the land and surrounding area make the land suitable for the proposed density and types of uses, to include consideration of existing or potential hazards (flood, wildfire, erosion), the degree of slopes, the presence of wetlands, geologic formations, mineral deposits and any other similar natural or manmade conditions or circumstances;
3. The land in its natural state accommodates the proposed uses and densities, or special alterations or mitigation plans can make the land achieve the carrying capacity described under subsections (C)(1) and (2) of this section;
4. Development pursuant to the proposed uses or densities will not significantly increase the risk from hazards to the residents of the development, the area or the general public;
5. Features of the development will not result in future maintenance costs to the public for the infrastructure needed to serve the development and the area that are atypically higher than expenses for other developments in the same plan and zone designations (examples of infrastructure include streets, bridges, storm drain facilities, erosion and sediment control facilities, and other similar public infrastructure facilities); and
6. Special circumstances exist at or near the site that justify increased risks, expensive or complex mitigation plans, or higher infrastructure costs to the public from the development. This criterion can be used to consider specific community needs that have arisen within the area since the existing zoning was implemented at the site. Examples of circumstances which might support the application of this criterion are changes in demographics; the location or discovery of unique natural resources; changes in infrastructure that are intended to support and encourage the kinds of development associated with the request; the development of rural communities; and any other circumstance that establishes a special need or benefit to the community that justifies increased risks and costs. This criterion shall not be used to modify the requirements of subsection (C)(1) of this section.
D. The density and types of uses authorized by the proposed plan and zoning designations are appropriate based on the requirements of subsections (D)(1) and (2) of this section:
1. The change in designations at the location is consistent with the character of the surrounding area. Consistency shall be demonstrated by a detailed review of the relationship between the area covered by the proposed change in designations and the surrounding area, subject to the following rules.
a. The detailed review shall describe the similarities or dissimilarities between the area of proposed change and the surrounding area based upon parcel size and ownership patterns,1 zoning, existing or authorized land uses and structures, public facilities and services, and natural or man-made features.2
b. The detailed review shall include a written statement explaining the rationale used to include or exclude areas from study, and be supported by zoning maps, aerial photographs, contour maps, and any other public or private records, statistics or other documents necessary or helpful to establish the character of the area and show how the change will be consistent.
2. Demonstrate how the introduction of inconsistent density or uses into an area is justified. This demonstration may be based upon changes in the area resulting from rezonings, new residential, commercial, industrial or resource development, the introduction or improvement of public facilities and services, changes in demographics, changes in plan inventories, and other similar circumstances. The application shall show how the proposed change in designations, in the context of the foregoing circumstances, implements applicable state and/or County goals and policies. The more the change introduces inconsistent densities and uses into an area, the greater the burden on the applicant to justify the basis for the change.
E. Requests involving changes to the plan and/or zone maps within established exception areas shall demonstrate the change complies with the criteria contained in OAR 660-004-0018 governing plan and zone changes within exception areas. [2005 RLDC § 46.040.]
19.46.050 Nonresource land criteria.
Authorized lots or parcels (but not portions thereof) which have been zoned woodlot resource or farm resource may be designated as nonresource when the application demonstrates compliance with the following criteria and rules:
A. The land within the lot or parcel is nonfarm land because:
1. The predominant (greater than 50 percent) soil or soils are rated Class V or above in the soil survey of Josephine County, as adopted or amended in the plan database (soils having both an irrigated and nonirrigated class rating will be rated based on whether irrigation rights are or are not perfected at the time the application is filed);
2. The land is otherwise unsuitable for farm use taking into consideration soil fertility, suitability for grazing, climatic conditions, existing and future availability of water for farm irrigation purposes, existing land use patterns, technological and energy inputs required, or accepted farming practices; and
3. The land is not required to buffer urban growth areas from commercial agricultural operations; and
4. The land is not necessary to permit farm practices or forest operations to continue or occur on adjacent or nearby resource zoned lands, subject to the rules and procedures as set forth in subsection (C) of this section.
B. The land within the lot or parcel is nonforest land because:
1. It is not included within the following definition of forest land:
A lot or parcel is considered forest land when the predominant (more than 50%) soil or soils on the parcel have an internal rate of return of 3.50 or higher (if a single forest-rated soil is present), or composite internal rate of return of 3.50 or higher (if multiple forest-rated soils are present).
For the purpose of this subsection, any evaluation of the internal rates of return for forest soils shall be made pursuant to the document entitled, “Using The Internal Rate Of Return To Rate Forest Soils For Applications In Land Use Planning” (1985), by Lawrence F. Brown, as amended; or
2. If a determination cannot be made using the internal rate of return system as described in subsection (B)(1) of this section, the land is shown to be unsuitable for commercial forest uses based upon a combination of proofs, to include (but not limited to) the site index or cubic foot calculations, the testimony of expert witnesses, information contained in scientific studies or reports from public and private sources, historic market data for the relevant timber economy, and any other substantive testimony or evidence regarding the commercial productivity of the subject land, which taken together demonstrate the land is not protected by Statewide Goal 4; and
3. The land is not necessary to permit farm practices or forest operations to continue or occur on adjacent or nearby resource zoned lands, subject to the rules and procedures as set forth in subsection (C) of this section.3
C. Land is necessary to permit farm practices or forest operations on adjacent or nearby lands when the land within the lot or parcel provides a special land use benefit, the continuance of which is necessary for the adjacent or nearby practice or operation to continue or occur. The following rules shall apply when evaluating this criterion:
1. Land use benefits shall include access, water supplies, wind breaks, impact buffering, the minimization of land use conflicts, the preservation and protection of soil, air, water, watershed, and vegetation amenities; and the retention of normally accepted wildfire fighting strategies for adjacent or nearby commercial forest uses.
2. A land use benefit shall be considered necessary for normal farm practices and forest operations when loss of the benefit will interfere with accepted farm practices or forest operations by significantly impeding or significantly increasing the cost of the practices or operations.
3. The application shall include a review of the relationship between the lot or parcel under consideration and surrounding farm practices and forest operations. The review shall list and describe existing or potential farm practices and forest operations on adjacent or nearby lands, as well as the general geography and potential land uses on the subject property, and then provide an analysis of how the uses permitted by the proposed nonresource designations may or may not significantly impede or significantly increase the cost of accepted farm practices or forest operations. The review may be based upon data or information from some or all of the following sources: private organizations (commercial timber producers, forestry consultants, woodlot associations, etc.) public agencies that collect and interpret farm practice or forest operation data, such as County offices (Departments of Planning, Assessor and Forestry) state agencies (Departments of Forestry, Agriculture, Revenue and the Oregon State Extension Service), federal agencies (Department of Agriculture/Forest Service, the Bureau of Land Management, the Natural Resources Conservation Service and the Farm Service Agency), and other similar public entities.
4. In the event a farm or forest operator within the review area contends in the record that the map changes could significantly impede or increase the cost of specific practices or operations, and this contention is based upon records, data and other information in the operator’s possession, but unavailable to participants in the hearing from public sources, the Review Body is authorized to require the operator to submit the supporting records, data and other information into the record for examination by the Review Body and other participants.
5. A lot or parcel shall not be considered necessary to permit farm practices or forest operations on adjacent or nearby lands if the necessary benefit can be preserved through the imposition of special restrictions or conditions on the use of the subject property which reasonably assure continuation of the benefit.
6. As a condition upon the approval of all plan and map changes from resource to nonresource designations, the property owner shall be required to execute and record in the County deed records a conflict preference covenant, which recognizes the rights of adjacent and nearby resource land owners to conduct normal farm practices and forest operations. The covenant shall provide that all land use conflicts between nonresource uses on the subject property and adjacent or nearby resource operations will be resolved in favor of accepted farm and forest practices and operations.
D. The land is not other forested lands that maintain soil, air, water and fish and wildlife resources.
E. If the land is designated as critical deer winter range habitat on the official 1985 deer winter range map, as adopted or amended, then the land shall continue to be subject to the density restriction required by Chapter 19.69B (Deer Overlay) even though the new underlying zone may permit a higher density.
F. When a request for a plan map amendment qualifies because the land is nonresource pursuant to the criteria contained in this subsection, the zoning may be changed to one of the following zones only: limited development, serpentine or rural residential with a minimum parcel size of five acres or larger. All such applications must also demonstrate compliance with the map amendment procedures and criteria as set forth in Policies 1 and 2.
G. For the purposes of implementing the provisions of the foregoing rules, the term “significant” shall mean the proposed change is likely to have considerable influence or effect upon the matter being considered, or that the effect or impacts arising from the change will result in important or weighty consequences or risks. The term is intended to guide the Review Body in evaluating the effects certain land use activities may have on other land use activities or on other land use considerations made applicable by these policies or other state or local goals, rules or laws. The Review Body shall judge the use of the term “significant” based on what a reasonable person would consider significant given the facts and circumstances being considered. [Ord. 2006-003 § 1(1); 2005 RLDC § 46.050.]
Evidence regarding changes in parcel size and ownership patterns shall, at a minimum, consider the circumstances of the parcelization and ownership patterns lawfully existing within the area of study. Review of parcelization patterns shall not only include the number and size of the parcels, but the relationship of the parcels to the total acreage within the study area, together with the potential for additional parcelization pursuant to existing zoning. In order for parcels to be counted in a parcelization analysis, the parcels must be authorized lots or parcels as defined by JCC 19.11.140.
Natural or manmade features may include watercourses, wetlands, watersheds, ridges, valleys, roads, rights-of-way, easements, political or service boundaries and other similar features. The study must identify and explain how these features operate to join or disjoin the area being changed from surrounding lands.
Only lands zoned in the woodlot resource zone may qualify as nonforest lands (see subsection (B)(3) above). Lands zoned in the forest commercial zone are not eligible for this option. The basis for this distinction lies in the County’s ability to ascertain the commercial viability of forest lands based upon the internal rate of return (IRR) system, as it has been applied within the acknowledged plan. The IRR system, in conjunction with the County’s further ability to ascertain other locational factors, demonstrates that woodlot resource zoned lands have qualified commercial forest value and are generally situated in proximity to other noncommercial forest or nonresource lands. The County is able to make this finding based upon the GIS mapping and analysis contained in the report, “Locational Factors Affecting Woodlot Resource Lands” by Michael Snider (March 22, 1999). This publication is made a part of the comprehensive plan by this reference.