1995-14393-Ordinance No. 95-024 Recorded 5/4/1995`
9514393 �WW
I i LEGAL COUNSEL
BEFORE THE BOARD OF COMMISSIONERS FOR DESCHUTES COUNTY, 4)RE60N
An Ordinance Amending the Deschutes
County Code to Adopt Chapter 9.12,
"Right to Farm," Amending Chapters * ''
8.08 and 13.36 and Declaring an
Emergency.* cMHj
ORDINANCE NO. 95-024
THE DESCHUTES COUNTY BOARD OF COMMISSIONERS ORDAINS AS FOLLOWS:
Adoption of New Chapter 9.12 - Right to Farm
Section 1. A new provision, Section 9.12.010, "Short Title," is
adopted and made a part of the Deschutes County Code as follows:
"9.12.010 Short Title
This ordinance may be cited as the Deschutes County Right To
Farm Ordinance."
Section 2. A new provision, Section 9.12.020, "Purpose," is
adopted and made a part of the Deschutes County Code as follows:
"9.12.020 Purpose
A. It is the purpose of this Chapter to protect farm and
forest -based economically productive activities of Deschutes
County in order to assure the continued health, safety and
prosperity of its residents. Farm and forest uses sometimes
offend, annoy, interfere with or otherwise affect others
located on or near farm and forest lands. Deschutes County
has concluded in conformance with ORS Chapter 30 that persons
located on or near farm and forest lands must accept resource
uses and management practices.
B. This Chapter is intended to limit the availability of
remedies based on nuisance or trespass, rights of action and
claims for relief and issuance of citations for infractions
over which Deschutes County has jurisdiction, when they
otherwise would either have an adverse impact on farm and
forest uses that Deschutes County seeks to protect, or would
impair full use of the farm and forest resource base within
Deschutes County."
Section 3. A new provision, Section 9.12.030, "Definitions," is
adopted and made a part of the Deschutes County Code as follows:
"9.12.030 Definitions
As used in this Chapter: lev,,j'�v,C,FQ
1 - ORDINANCE N0. 95-024 (4/26/95) //1CROMMED &I
MAY 10 199 's
0145-1314
A. "Facility" means any real or personal property,
including appurtenances thereto and fixtures thereon,
associated with a given use.
B. "Farming" means the cultivation, growing, harvesting,
processing or selling of plants or animals of any kind that
lawfully may be grown, possessed and sold, including but not
limited to forage, row crops, grapes, Christmas trees and
nursery stock, fish, livestock, poultry and ratites. Except
as otherwise set forth herein, farming may be at either a
commercial or a non-commercial scale.
C. "Farming practice" means a mode of farming, including
use of pesticides, that:
(1) Is or may be used in a farming operation of a similar
nature;
(2) Is consistent with generally accepted, reasonable and
prudent methods;
(3) Is or may become a generally accepted, reasonable and
prudent method in conjunction with farm use;
(4) Complies with applicable laws; and
(5) Is done in a reasonable and prudent manner.
D. "Forest practice" means a mode of operation, including
the use of pesticides, on forestland that:
(1) Is or may be used on forestland of a similar nature;
(2) Is a generally accepted, reasonable and prudent method
of complying with ORS 527.610 to 527.770 and the rules
adopted pursuant thereto;
(3) Is or may become a generally accepted, reasonable and
prudent method in conjunction with forestland;
(4) Complies with applicable laws;
(5) Is done in a reasonable and prudent manner; and
(6) May include, but is not limited to, site preparation,
timber harvest, slash disposal, road construction and
maintenance, tree planting, precommercial thinning, release,
fertilization, animal damage control and insect and disease
control."
E. "Nonresource use" means any facility, activity or other
use of land that does not constitute a farm or forest use, as
2 - ORDINANCE NO. 95-024 (4/26/95)
0145-1315
defined herein, including but not limited to residential use.
F. "Generally accepted" means a practice that an average
person in Deschutes County who is regularly involved in the
same type of resource use would reasonably expect to occur or
exist in a rural setting.
G. "Farming and forest practices" do not include:
(1) The willful growing of unlawful, infested,
infected or diseased plants or animals; or
(2) Trespass which involves actual physical
intrusion onto the property of another by a person
or, within a livestock control district, by a
person's animals.
H. "Nuisance" or "trespass" includes but is not limited to
actions or claims based on noise, vibration, odors, smoke,
pesticide spray, dust and mist from irrigation. Nuisance
also includes actions or claims based on otherwise approved
practices performed during non -daylight hours.
I. "Pesticide" includes defoliants, desiccants,
fungicides, herbicides, insecticides, nematocides, and other
substances included and defined in ORS 634.006(8)."
Section 4. A new provision, Section 9.12.040, "Prohibition on
Enactments that Make Farm and Forest Uses a Nuisance or Trespass," is
adopted and made a part of the Deschutes County Code as follows:
"9.12.040 Prohibition on Enactments that Make Farm and
Forest Uses a Nuisance or Trespass
The Board of County Commissioners shall enact no resolution
or ordinance that makes a farm or forest practice covered by
Sections 9.12.050 through 9.12.070 of this Chapter a nuisance
or trespass or provides for the abatement of such practices
as a nuisance or trespass."
Section 5. A new provision, Section 9.12.050, "Protection of
Resource Uses on Lands Zoned Exclusive Farm Use or Forest," is adopted
and made a part of the Deschutes County Code as follows:
"9.12.050 Protection of Farm and Forest Uses on Lands Zoned
for Resource Use
A. No farm or forest practice occurring on lands zoned for
resource use shall be declared to be a public or private
nuisance or trespass, or support any complaint procedure, or
give rise to a claim for relief in favor of, or to protect
the interests of, nonresource uses or any persons or property
3 - ORDINANCE NO. 95-024 (4/26/95)
0145-1316
associated therewith, to the extent that such controversy,
proceeding or claim would arise under an ordinance or the
inherent authority of Deschutes County.
B. This section applies regardless of:
(1) The location of the purportedly affected
nonresource use;
(2) Whether the nonresource use purportedly
affected existed before or after the
occurrence of the farm or forest use;
(3) Whether the farm or forest practice or
nonresource use has undergone any change
or interruption; or
(4) Whether the resource use or nonresource
use is located inside or outside an area
designated as other than high value
resource lands.
C. Lands zoned for resource use include lands in EFU
zones, Forest zones, Surface Mining zones, and Flood Plain or
Open Space & Conservation zones where the underlying
comprehensive plan designation is "Agriculture" or "Forest."
D. If zoning is changed in such a way to place a farming
or forest practice within a resource zone as defined herein,
this section will apply to that farming or forest practice
after the date the zone change becomes effective."
Section 6. A new provision, Section 9.12.060, "Protection of
Allowed Farm and Forest Uses in Zones other than Farm and Forest
Zones," is adopted and made a part of the Deschutes County Code as
follows:
"9.12.060 Protection of Allowed Farm and Forest
Uses in Zones other than EFU and Forest
Zones
A. On lands other than those zoned for farm or forest
use, no farm or forest use allowed in a zone shall
be declared to be a public or private nuisance or
trespass, or support any complaint procedure, or
give rise to a claim for relief in favor of, or to
protect the interests of, nonresource uses or any
persons or property associated therewith, to the
extent that such controversy, proceeding or claim
would arise under an ordinance or the inherent
authority of Deschutes County.
4 - ORDINANCE NO. 95-024 (4/26/95)
0145-131'
B. This section shall apply:
(1) To farming practices on commercial farms
only, notwithstanding the definition of
farming in this Chapter.
(2) Whether or not the farm practice occurs
within the applicable urban growth
boundary.
(3) Where the commercial farming or forest
practice existed before the conflicting
nonfarm or nonforest use of real
property that gave rise to the
complaint."
Section 7. A new provision, Section 9.12.070, "Protection of Non -
Conforming Farm and Forest Uses," is adopted and made a part of the
Deschutes County Code as follows:
"9.12.070 Protection of Non -Conforming Farm and
Forest Uses
A. On lands where farming or forest practices occur
as a pre-existing nonconforming use in a zone not
otherwise allowing farm or forest practices, no
such practices shall be declared to be a public or
private nuisance or trespass, or support any
complaint procedure, or give rise to a claim for
relief in favor of, or to protect the interests
of, nonresource uses or any persons or property
associated therewith, to the extent that such
controversy, proceeding or claim would arise under
an ordinance or the inherent authority of
Deschutes County.
B. This section shall apply:
(1) To farming practices on commercial farms
only, notwithstanding the definition of
farming in this Chapter.
(2) Whether or not the farm practice occurs
within the applicable urban growth
boundary.
(3) Where a farming or forest practice existed
before the conflicting nonfarm or nonforest
use of real property that gave rise to the
complaint.
(4) Where a farming or forest practice has not
5 - ORDINANCE NO. 95-024 (4/26/95)
0145-1318
significantly increased in size or intensity
from November 4, 1993 or the date on which
the zoning is changed to make the use a non-
conforming one, whichever is later."
Section 8. A new provision, Section 9.12.080, "Land Use
Decisions," is adopted and made a part of the Deschutes County Code as
follows:
"9.12.080 Land Use Ordinances and Decisions
The fact that Deschutes County's comprehensive plan and
zoning ordinances and that individual land use decisions
issued by the County may allow the siting, development or
support of any particular use does not negate the provisions
of this Chapter intended to protect a farm or forest resource
use."
Section 9. A new provision, Section 9.12.090, "Complaints by Non -
Resource Users," is adopted and made a part of the Deschutes County
Code as follows:
"9.12.090 Complaints by Nonresource Users
Any persons not engaged in a farm or forest use are deemed on
notice that Deschutes County will not issue a citation
involving a farm or forest practice protected under this
Chapter, so long as such resource use complies with
applicable provisions of federal and state laws and this
Chapter. In order to protect a farming or forest practice
from shutdown upon receipt of a complaint of nuisance, there
shall be a presumption of acceptability of the practice in
the absence of compelling evidence that continuation of the
practice would result in an immediate threat to health and/or
safety to the public, and the county shall not take action to
cause cessation of such practice. If the practice shall not
have been previously adjudged to be an acceptable practice,
the county shall, subject to Section 9.12.100, make a timely
determination of whether a citation should issue."
Section 10. A new provision, Section 9.12.100, "Farm Practice
Advisory List, " is adopted and made a part of the Deschutes County Code
as follows:
"9.12.100 Farm Practices Advisory List
In determining whether any particular farming or forest
practice is a generally accepted, reasonable and prudent
practice, County staff may prior to issuing a citation, seek
the advice of an expert or experts in the particular practice
involved from a list of experts provided by the Deschutes
County Farm Bureau for each commodity or practices area."
6 - ORDINANCE NO,. 95-024 (4/26/95)
9145-1119
Section 11. A new provision, Section 9.12.110, "Affect on
Livestock Control Districts," is adopted and made a part of the
Deschutes County Code as follows:
"9.12.110 Affect on Livestock Control Districts
Nothing in this Chapter shall apply to or restrict any action
taken under Chapter 6.08 of this Code with respect to
livestock at large."
Amendments to Chapter 8.08 - Noise Control
Section 12. A new provision, Section 8.08.065, "Noise Control -
Exception for Certain Agricultural Practices," is adopted and made a
part of the Deschutes County Code as follows:
"8.08.065 Exception for Certain Farming and Forestry Practices
Generally accepted, reasonable and prudent farming and
forest practices as described in Oregon Revised Statutes
sections 30.930 to 30.937 and Chapter 9.12 of this Code do
not constitute nuisances under this Chapter."
Amendments to Chanter 13.36 - Nuisances and Abatement
Section 13. Section 13.36.012, "Definition - Nuisance," is
amended to read as follows:
"13.36.012 Definition -Nuisance
A. "Nuisance" includes:
1. All open holes, wells, cisterns, cesspools, or
unsanitary septic tanks, foundations or non-operating
refrigerators, freezers, or iceboxes with attached doors;
2. Solid waste; as defined under Deschutes County Code
13.12.040(33);
3. Those definitions of nuisance pursuant to Deschutes
County Code sections 12.35.100, 15.04.170, and 18.144.040; or
4. Land that as a result of grading operations, excavation
or fill causes erosion, subsidence or surface water drainage
problems of such magnitude as to be injurious or potentially
injurious to adjacent properties or to the public health,
safety and welfare.
B. Generally accepted, reasonable and prudent farming and
forest practices as described in Oregon Revised Statutes
7 - ORDINANCE NO. 95-024 (4/26/95)
0145-1t920
sections 30.930 to 30.937 and Chapter 9.12 of this Code do
not constitute nuisances under this section."
Section 14. ADDITIONS AND DELETIONS. Additions to existing code
language are shown in bold-faced language, deletions to existing code
language are shown in brackets.
Section 15. CORRECTIONS. This ordinance may be corrected by
order of the Board of County Commissioners to cure editorial and
clerical errors and to insert appropriate legislative history
references.
Section 16. CODIFICATION. County Legal Counsel shall have the
authority to format the provisions contained herein in a manner that
will integrate them into the County Code consistent with the County
Legal Counsel form and style for ordinance codification. Such
codification shall include the authority to make format changes, to
make changes in numbering systems and to make such numbering changes
consistent with interrelated code sections. In addition, as part of
codification of these ordinances, County Legal Counsel may insert
appropriate legislative history reference. Any legislative history
references included herein are not adopted as part of the substance of
this ordinance, but are included for administrative convenience and as
a reference. They may be changed to correct errors and to conform to
proper style without action of the Board of County Commissioners.
Section 17. SEVERABILITY CLAUSE. If any portion of this
Ordinance is held invalid by a court of competent jurisdiction, such
decision shall apply only with respect to the specific portion held
invalid by the decision. It is the intent of Deschutes County that the
remaining portions of this Ordinance continue in full force and effect.
Section 18. EMERGENCY CLAUSE. This Ordinance being immediately
necessary for the preservation of the public well-being, an emergency
is declared to exist and this Ordinance takes effect upon its second
reading and final adoption.
BOARD OF COUNTY COMMISSIONERS OF DESCHUTES
COUNTY, OREGON
H: SLAUGHTER, Q airman
NIINCY ]4 Is HLANGEN, Commis�/ioner
TE T: J J �/
Recording Secr tary ROB RT L. NIPPER, Commsioner
8 - ORDINANCE NO. 95-024 (4/26/95)