Planning Commission - Jan. 26, 2026 - Continued to Feb. 23, 2026

Agenda

1. Call to order
2. Roll call
3. Public comment
   This is an opportunity for attendees to comment on an issue of concern to the Planning Commission, unless that item is on the agenda for public hearing. Public hearing items, if any, will include an opportunity for public testimony, which will be announced later in the agenda.
4. PUBLIC HEARING: Z0315-25-CP & Z0316-25-ZAP ‡
   Martha Fritzie, Principal Planner, mfritzie@clackamas.us
   Jennifer Hughes, Planning Director, jenniferh@clackamas.us
5. Schedule review
   Jennifer Hughes
6. Other business
   Jennifer Hughes
7. Adjourn

‡  Attachments

NOTE: (PH)=public hearing, (SS)=study session, (PM)=public meeting

Minutes

Commissioners present:  Gerald Murphy, Tom Peterson, Michael Wilson, Louise Lopes, Brian Lee, Ryan Founds, Jennifer Satter.

Commissioners absent: Scott Cantonwine, Tammy Stevens.

Staff present:  Jennifer Hughes, Planning Director; Martha Fritzie, Principal Planner; Darcy Renhard, Administrative Specialist II

Guests: Peter Finley Fry (Consultant for applicant), Ty Wyman (Attorney for applicant), Michael Paden (Applicant) 

Commission Chair Peterson called the meeting to order at 6:31 p.m.  

Roll Call: Ms. Renhard called the roll.

Public Comment: No members of the public wished to provide testimony.

Chair Peterson opened the public hearing for file numbers Z0315-25-CP and Z0316-25-ZAP, an application by Michael and Mary Paden for a Comprehensive Plan Map amendment to change the land use designation for the subject property from Agricultural to Rural and a corresponding zone change from Exclusive Farm Use to Rural Residential Farm Forest 5-acre.

The proposal includes an exception to Statewide Planning Goal 3. This change is intended to facilitate the development of up to three dwellings. No development is proposed with this application.

Commissioner Lee disclosed that he has worked with the applicant’s consultant in the past on several projects. He has not discussed this case with Mr. Fry. Commissioner Lee also has a client who is being represented by the applicant’s attorney. He has had no discussion with the attorneys regarding this application. He has been asked to submit his resume to Dunn Carney as a potential expert witness in future cases. Again, he has had no ex parte contact or discussed this application with any attorney at Dunn Carney. He will be abstaining from a vote on this application to avoid any appearance of bias.

Ms. Fritzie presented the staff report and recommendations. The original proposal required exceptions to two Statewide Planning Goals—Goal 3: Agriculture, as previously stated, but also Goal 14: Urbanization. The purpose of these changes is to facilitate development of up to 3 dwellings. Nothing that the Commission is hearing tonight would authorize any specific development. The applicant submitted an amended proposal this morning to request the Farm Forest 10-acre (FF-10) zoning designation instead of RRFF-5. The Comprehensive Plan designation change would still be from Agriculture to Rural. This still requires an exception to Statewide Planning Goal 3, but it eliminates the need for the Goal 14 exception. 

Under our Comprehensive Plan we have 3 different rural zoning designations that can be applied. There is a 2-acre, a 5-acre, and a 10-acre zoning district. Originally the applicant asked for a 5-acre zoning district. They are now asking for the 10-acre zoning district. There is only one section in our Comprehensive Plan that would differ between an FF-10 and an RRFF-5 zoning designation. The rest of the criteria under the exception to Goal 3 remain the same under the new proposal. Also notably different is that if the FF-10 designation is approved, it would only allow for one dwelling rather than three.

The subject property is on the south side of SE Allgeier. It is just under 15 acres and is relatively flat. It has no overlays in terms of resources like streams, wetlands, floodplains, or steep slopes. There is an agricultural building that is approximately 24 x 30 feet. This building was approved through a 2024 building permit to support agricultural activity on the property, called an ag-exempt building. In order for a building to be approved as ag-exempt you must demonstrate that there is some supporting agricultural use on the property. In this case it was done through demonstration that the property is in special assessment, or farm tax deferral.

The uses on surrounding properties are fairly mixed. There are some treed areas immediately adjacent to the site and some small to medium-sized farm properties. Surrounding zoning is a mix of exclusive farm use, RRFF-5, and timber. The mapped soils on the subject property contain just under 50% Class 2 high-value soils, 22.5% Class 4 soils, and nearly 30% Class 6 low value soil. Both State law and the County’s Comprehensive Plan identify agricultural land as primarily classes 1 through 4. The classification as agricultural land, at least under those definitions, would still hold since well over 50% of the parcel is in Class 1 through 4 soils. 

Planning staff received 3 comments to date, one from 1,000 Friends of Oregon, one from DLCD, and one from County Engineering. County Engineering staff concur with the findings in the applicant’s traffic study. 1,000 Friends and DLCD recommend denial of the application. Both argue that this proposal does not meet the standard for the Goal 3 exception that they are requesting. 

For the most part, the proposal meets all the relevant policies and criteria. However, in ZDO Section 1202 there are four major criteria for zone changes. Three of those four criteria have been met. The one that is not met is the criteria to meet all the Comprehensive Plan goals and policies. Staff has found that the proposal does not meet the criteria for an exception to Statewide Planning Goal 3 It is not consistent with all the County Comprehensive Plan policies for the RRFF-5 designation. The applicant has applied for an “irrevocably committed” exception. Under State law, this is identified as an area where the land subject to the exception is irrevocably committed to uses not allowed by the applicable goal because existing adjacent uses and other relevant factors make uses that are allowed impracticable. For Goal 3 you need to look at farm uses, and under ORS 215.203, farm uses have a very broad definition. Generally, it includes the employment of land for the primary purpose of obtaining a profit by raising, harvesting, and selling of crops; feeding, breeding, management, sale of or the produce of livestock, poultry, fur-bearing animals; stabling or training equines; etc. Farm use is not exclusive to cultivating and harvesting crops. 

The applicant provides a list of reasons why they believe that farming is impracticable on the site. Staff find that the applicant relies on the size of the subject property and theoretical impacts to farming that the subject property might have on nearby exception areas, rather than the impact that the adjacent properties have on the site itself. The applicant does not identify any conditions or developments on nearby lands that have caused such a conflict that the subject property cannot be practically farmed. The applicant notes, and staff agree, that the mere presence of adjoining residential uses is not sufficient to conclude that resource lands are irrevocably committed. No evidence has been provided to demonstrate why farming on 15 acres is impracticable simply because of its size. In fact, County evidence shows that parcels of 15 acres, or even less, can generate enough income to qualify for a dwelling. Between 2022 and 2025 there have been 14 approved and 1 pending application for a farm dwelling, four of which are on parcels that are 15 acres or smaller.

Aerial photos from 2018 show that the subject property is largely in hay production. On either side, to the east and west, the properties are engaged in horse boarding. The property to the south appears to be growing nursery stock. The property to the north has livestock. This shows that, at least in 2018, there was farming taking place on the property and there continues to be farming adjacent to the property. The existing rural residential exception lands do technically abut the subject property but only on the southeastern corner. The applicant’s revised findings did not address identified deficiencies that were identified in the staff report related to the Goal 3 exception, including addressing Oregon Administrative Rule 660, Division 4, Section 18-2 which requires that new exception areas address how allowing the new exception area would not commit other adjacent land to non-resource uses and would be compatible with adjacent resource lands. The applicant appears to be using the argument that the adjacent exceptions lands are committing this property, which is a circular argument. Staff finds that the requirements for an irrevocably committed exception to Goal 3 are still not met, even with the new information that was provided.

The applicant did not address the requirements for a Goal 14 exception in their initial application for RRFF-5 zoning. Because the new request is for the FF-10 zoning designation, the need for the Goal 14 exception is essentially eliminated.

The applicant must still address, even with the new proposal, the rural plan designation policies. Regardless of whether they are asking for RRFF-5 or FF-10, the plan designation is rural. The applicant must provide findings that demonstrate reasons why it’s needed, why alternative areas are not suitable, reasons why it would be compatible with other adjacent uses, and an evaluation of the ESEE consequences. The applicant states that the proposal meets these policies without providing adequate evidence to support this.

Commissioner Peterson asked for an explanation on how a vacant property in a farm zone can qualify for a dwelling. Ms. Fritzie explained that the most common way is for the property owner to demonstrate a minimum income level from farming the property over a specific period of time, either the previous two years or three of the previous five years.

Commissioner Wilson asked if the farming income generated as shown in the 2018 aerial photos would count toward the income test. Ms. Fritzie replied that 2018 is outside of the 5-year period. The current owners purchased the property in 2023.  There are other ways of qualifying for a dwelling, but they are not as common and are often more difficult. 

Commissioner Murphy asked about the potential of herbicide and pesticide drift from farming practices and whether it poses a risk if housing is allowed in these areas. Ms. Fritzie stated that there are protections in Oregon for farmers under the ‘right to farm’. There is no evidence given in this application that herbicides and pesticides are being implemented here. It seems to be more of a theoretical argument about a potential conflict that could happen, not what is actually happening.

Commissioner Founds wanted to know if the agricultural building would have been allowed if the property was zoned differently. Ms. Fritzie explained that it could have been, agricultural use buildings are allowed in a number of different rural zones, including rural residential zones where farming is also allowed. The standard is that you must demonstrate that it is supporting some sort of farm or forest use in order for the permit to be issued. Typically we accept evidence that the property is in a farm or forest tax deferral status as sufficient evidence. 

Commissioner Lopes said that the tax deferral status would imply that someone has verified that the property is being farmed. Ms. Fritzie replied that the tax assessor has requirements, but she is not sure what those requirements are.  

Commissioner Wilson asked if planting something like Christmas trees on the property would allow them to put a building on the property. Ms. Fritzie explained that if the applicant is successful in rezoning the property to FF-10, they would not need to plant anything on the property and that there would be no need to farm it or generate income. They could simply apply for a building permit and build the dwelling.

Commissioner Satter wanted to know how the soil value affects the staff decision. Ms. Fritzie answered that the basis for an irrevocably committed exception is that development or uses on adjacent properties have somehow rendered it impracticable to farm the particular property. The fact that the mapped soils are different than what was originally thought is not particularly relevant. They are still mapped with primarily Class 2 and 4 soils, so it continues to meet the definition of agricultural land. 

Ty Wyman, for applicant – Mr. Wyman is the attorney for the applicant. He disagrees that anyone around the area of the subject site is farming for profit. He believes that the application meets the impracticable standard. The site has not been farmed for 45 years. 

Mike Paden, applicant -  Mr. and Mrs. Paden bought the property as a place to retire and build a legacy for their kids and family. They would like to build a home, have small gardens, chickens and livestock. He and his wife bought the property in 2023. All they saw were horses, cattle, and some chickens when they first drove by the property. They did not see anything that looked like farming happening. Their intention is to just build a house and get a couple of horses, and maybe some cattle. The previous property owners let the fields go so that there are only weeds growing on it now. 

Alicia Rusher, for applicant – Ms. Rusher is the daughter of the applicants. She has spoken to multiple neighbors in the area, and none of them are farming in a profitable way. One neighbor homes retired racehorses, and another has 29 acres of hay that was just cut for fire mitigation. Everyone has little recreational farms. Even the hay that neighbors use to feed their horses is brought in, it is not grown on the neighboring properties. It is more of a neighborhood than a farming community. 

Peter Finley Fry, for applicant -  Mr. Finley Fry is the applicant’s consultant. The income requirement is almost impossible to meet on properties this small unless you’re really a business person. Many people have been able to meet it by raising and selling Christmas trees. Most of the farms that are able to meet the income requirements are much larger, commercial farms. In the Willamette Valley we have such good soil, you can produce more on smaller lots than you can in other areas. But this still does not make it feasible to generate the amount of income required on such a small piece of property. This property is not commercial farmland due to the surrounds small lots, dwelling, and geography. Since this property is not commercially profitable, the exception is justified. A 10-acre zoning designation would be consistent with the surrounding uses.

Commissioner Lopes asked the applicant if they knew the zoning restrictions on the property prior to purchasing it. Mr. Paden responded that they did consult with a land use planner when they first bought the property, and she was very confident that they would be able to at least get a house on it. They also saw that the surrounding properties all had homes, so by all appearances they thought that they could add a home to their property as well. Commissioner Lopes asked if the property was still in farm tax deferral. Mr. Paden replied that their taxes were still at the same rate as when they purchased the property.

Ms. Fritzie explained that initially the intent was to divide the property and put 3 houses on it, but under the FF-10 zoning that they are now asking for only 1 house would be allowed. She further explained that the standard for an irrevocably committed exception is that there is something about the neighboring properties that makes it impracticable for you to farm your property. The applicant states that there are horses and cattle on the neighboring properties. Both horses and cattle are farm uses. County staff does not find that there is any evidence to show that whatever is going on in the neighboring parcels has made it impracticable for this particular property. The argument that the property was not properly zoned is not the standard here. The State does have a process for that type of argument outside of the goal exception process, although it may be very difficult for a property with primarily Class 2 and 4 soils and a demonstrated history of some type of farming activity. There may be a route for a non-farm dwelling, but she is not sure if it would meet all of that criteria right now. It involves a different analysis and would necessitate the entire property be taken out of tax deferral. It could be a possible option for one dwelling since that is what the applicants seem willing to accept, but it would not be for the three dwellings that they had originally applied for. Planning staff would be happy to speak with the applicants about that potential pathway. But the standard for an irrevocably committed exception has simply not been met in this case.

Commissioner Lee pointed out that the additional information from the applicant was not submitted until this morning. Ms. Fritzie has barely had time to review it, and County Counsel has not had time to review any of the legal issues that have been brought up. He asked if it would make sense to keep the record open so that there could be further discussion once parties have had a chance to fully review and analyze all of the issues. Mr. Wyman stated that he and his clients would like more time to provide additional evidence. 

Commissioner Wilson moved to continue the hearing to February 23rd at 6:30 p.m. Commissioner Lee seconded the motion.

Ms. Hughes asked Mr. Wyman if we is willing to provide all of the additional information at least a week in advance of the continued hearing. Mr. Wyman said that he is willing to commit to providing everything to staff well before the hearing.

(Ayes=6, Wilson, Lopes, Satter, Founds, Lee, Peterson; Nays=1, Murphy. Motion to continue the hearing to February 23rd at 6:30 p.m. is passed.)

Ms. Hughes provided a schedule update.

There being no further business, Chair Peterson adjourned the meeting at 8:56 p.m.