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2015-520-Minutes for Meeting October 26,2015 Recorded 12/17/2015 NANCYUBLANKENSNZP, COUNTY CLERKCS CJ 1015420 COMMISSIONERS' JOURNAL 12/17/2015 03;44;27 PM II IIIIIIIIIIIIIIIIIHhII III III 2 10-520 oN 1,M O p/' /40‘;11, Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF THE BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, OCTOBER 26, 2015 Commissioners'Hearing Room -Administration Building - 1300 NW Wall St., Bend Present were Commissioners Anthony DeBone, Alan Unger, and Tammy Baney. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; and David Doyle, County Legal Counsel. Chair DeBone called the meeting to order at 10:00 a.m. 1. PLEDGE OF ALLEGIANCE 2. CITIZEN INPUT None was offered. 3. PUBLIC HEARING on an Appeal of the Hearings Officer's Decision regarding a Limited Use Permit (Cooper) Minutes of Board of Commissioners' Business Meeting Monday, October 26, 2015 Page 1 of 6 Paul Blikstad, Community Development Department, outlined the public hearing process. He inquired whether any Commissioner had any conflict. All commissioners claimed none and no challenges were raised. Chair DeBone opened the public hearing. Staff report was given reviewing the proposed use of the property for six weddings to be held between May and September. The Hearings Officer denial is based on the concern of primary use of the property is indeed a farm use. Evidence in the record shows it has been used for wedding venues. Sally Curry, legal representative and sister of Mr. Cooper, brought forth supplemental exhibits addressing the key issues raised and noted in the hearing's officer report. She gave comparisons based on definitions of rental and event charges. Questions were raised by Commissioner Baney on whether the $400 per night fee from the wedding revenue is captured on the VRBO (vacation rental by owner) website. Commissioner Unger asked for clarification of the information on Schedule F and for a definition on the scope of income. Ms. Curry stated the hearings officer must have not understood where the income came from and that Schedule F reflects income from the ranch in Monument where the hay is stored. Commissioner Baney asked if the 500 tons of hay is only hay that is grown in Central Oregon and, if looking at the map of the two parcels, can you give the distinction of what is grown on the northern vs southern parcels so as to narrow the property determination where you are holding events. Commissioner Unger stated the need is to find whether the income is from farming or events. Ms. Curry stated the figure is based on the assumption that every year the hay is sold completely. The next issue of concern to review is of the trees and sale receipts. Commissioner Baney noted the question on the link between the wedding and farming income needs to connect, and how the revenue from the tree sales connects. Ms. Curry stated some of the income from the trees is connected, but as the record shows the trees are advertised and sold and made available and the advertisement of the hay is also on the same advertisement as the trees. Ms. Curry stated that couples want to have weddings on rural setting because it is beautiful and the trees are included in the photo backgrounds. Ms. Curry spoke of farm use and that the trees were supportive of the wedding events. She stated $6,305 was income from the spring sale of trees. Minutes of Board of Commissioners' Business Meeting Monday, October 26, 2015 Page 2 of 6 Commissioner Baney noted the Commissioners must follow land use laws, and do need clarification on the tree sale classification and how they are used as a part of the wedding events. Billie Janeck. Ms. Janeck spoke opposing the Cooper property use. Ms. Janeck is a neighbor and her property is % mile from the wedding venue. Her issue is the noise. She was not at the original meeting but did submit a letter. Commissioner Baney asked Mr. Cooper if he lives on the property where the weddings are held. Mr. Cooper does not but noted his daughter does and she manages the events. Hana Cooper. Ms. Cooper noted she is the co-applicant and she does live on P p pP site. She stated her expectation from her parents is to make sure she is on site to manage the events. Ms. Cooper said that this summer they were able to continue their weddings and regarding noise, they were able to end each wedding at 10:00 p.m. She also noted any events in the future will have music shut down at 9:30 p.m. Commissioner Baney inquired if there was a kitchen on site for catering. Ms. Cooper noted there is an outside building for food preparation. Commissioner Baney requested a matrix to outline this issue to ensure consistency. Discussion was held on the timeframe of the record. The oral record will be closed, leaving the written record open for a seven day rebuttal period and seven days for final arguments. The written record will be open until 5:00 p.m. on November 2 and final arguments for 5:00 p.m. on November 9. Given the schedule for the upcoming weeks, this item will be scheduled for the BOCC Work Session of November 23 and the deliberation will be scheduled for November 30. Chair DeBone closed the public hearing. Minutes of Board of Commissioners' Business Meeting Monday, October 26, 2015 Page 3 of 6 CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. Commissioner Baney asked that item #2 be pulled from the Consent Agenda for discussion. UNGER: Move approval of the Consent Agenda, less item #2. BANEY: Second. VOTE: UNGER: Yes. BANEY: Yes. DEBONE: Chair votes yes. 1. Consideration of Board Signature, Order No. 2015-045 Small District Buy-out 2. Consideration of Board Signature, Ordinance No. 2015-012 Amending Sections 6.08.050 and 8.08.040 of the Deschutes County Code in order to clarify the Code's provisions relating to nuisances caused by animals Discussion: John Laherty, Assistant Legal Counsel, reported this amendment is solely a house keeping matter. There were two locations in the code addressing animal noise concerns: 6.08.05 and 8.08.040. The major difference was that one was a class b violation and one was a class a violation. For consideration of the Board is to strike one as redundant. BANEY: Move approval of Ordinance No. 2015-012. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. DEBONE: Chair votes yes. 3. Consideration of Board Signature, Document No. 2015-654, Amendment between Oregon Department of Education and Deschutes County Health Services Early Learning Division Minutes of Board of Commissioners' Business Meeting Monday, October 26, 2015 Page 4 of 6 4. Consideration of Board Signature, Document No. 2015-667 an Addendum/Extension to a Lease between Deschutes County, Lessor, and the State of Oregon Department of Administrative Service, Lessee 5. Consideration of Board Signature, Document 2015-672, a Lease between Deschutes County and Oregon State University for office space in the South County Services Building 6. Consideration of Board Signature, Document No. 2015-673, an Appointment of Successor Trustee; and authorization of County Legal Counsel for Signature of Document 2015-674, a Deed of Reconveyance 7. Consideration of Board Signature, Document No. 2015-679 Grant Agreement between Deschutes County and the Oregon Department of Transportation 8. Consideration of Board Signature, Document No. 2015-680 Termination and Release of Easement 9. Approval of Minutes • Work Session Minutes of September 9, 2015 • Work Session Minutes of September 30, 2015 • Work Session Minutes of October 5, 2015 CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 1. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District There were no expenditures for 9-1-1 Service District this week. CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 2. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District There were no expenditures for Extension/4-H this week. Minutes of Board of Commissioners' Business Meeting Monday, October 26, 2015 Page 5 of 6 RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 3. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County There were no expenditures for Deschutes County Board of Commissioners this week. 4. ADDITIONS TO THE AGENDA None were offered. Being no other items brought before the Board, the meeting was adjourned at 11:13 a.m. DATED this 1-4P �U Day of 2015 for the Deschutes County Board of Commissioners. atoaeli, - Anthony DeBone, Chair Alan Unger, Vice Chair ATTE:, : draiM1111/ Tammy Baney, C issioner cording Secretary Minutes of Board of Commissioners' Business Meeting Monday, October 26, 2015 Page 6 of 6 Deschutes County Board of Commissioners --�. �— 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.dcschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, OCTOBER 26, 2015 Commissioners'Hearing Room -Administration Building - 1300 NW Wall St.,Bend 1. PLEDGE OF ALLEGIANCE 2. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Please complete a sign-up card(provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the official record of that hearing. 3. PUBLIC HEARING on an Appeal of the Hearings Officer's Decision regarding a Limited Use Permit (Cooper) Suggested Action: Open hearing; take testimony; close hearing; deliberate if appropriate. CONSENT AGENDA: 1. Consideration of Board Signature, Order No. 2015-045 Small District Buy-out 2. Consideration of Board Signature, Ordinance No, 2015-012 Amending Sections 6.08.050 and 8.08.040 of the Deschutes County Code in order to clarify the Code's provisions relating to nuisances caused by animals Board of Commissioners' Business Meeting Agenda Monday, October 26, 2015 Page 1 of 4 3. Consideration of Board Signature, Document No. 2015-654, Amendment between Oregon Department of Education and Deschutes County Health Services Early Learning Division 4. Consideration of Board Signature, Document No. 2015-667 an Addendum/Extension to a Lease between Deschutes County, Lessor, and the State of Oregon Department of Administrative Service, Lessee 5. Consideration of Board Signature, Document 2015-672, a Lease between Deschutes County and Oregon State University for office space in the South County Services Building 6. Consideration of Board Signature, Document No. 2015-673, an Appointment of Successor Trustee; and authorization of County Legal Counsel for Signature of Document 2015-674, a Deed of Reconveyance 7. Consideration of Board Signature, Document No. 2015-679 Grant Agreement between Deschutes County and the Oregon Department of Transportation 8. Consideration of Board Signature, Document No. 2015-680 Termination and Release of Easement 9. Approval of Minutes • Work Session Minutes of September 9, 2015 • Work Session Minutes of September 30, 2015 • Work Session Minutes of October 5, 2015 CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 1. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 2. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District Board of Commissioners' Business Meeting Agenda Monday, October 26, 2015 Page 2 of 4 RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 3. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County 4. ADDITIONS TO THE AGENDA To watch this meeting on line, go to: http://www.deschutes.org/bcc/page/board-meeting-videos Please note that the video will not show up until recording begins. You can also view past meetings on video by selecting the date shown on the website calendar. gaDeschutes County encourages persons with disabilities to participate in all programs and �� '� activities. To request this information in an alternate format please call (541)617-4747, or email ken.harmsdeschutes.org. PLEASE NOTE:At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session items. FUTURE MEETINGS: (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners'meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting,please call 388-6572.) Wednesday, October 28 6:00 p.m. Public Hearing & Goal 11 Update— SHARC, Sunriver Monday, November 2 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Board of Commissioners' Business Meeting Agenda Monday, October 26, 2015 Page 3 of 4 Tuesday, November 3 1:30 p.m. Department Update—9-1-1, at 9-1-1 3:30 p.m. Regular Meeting of the Public Safety Coordinating Council Wednesday, November 4 T 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Thursday, November 5 3:00 p.m. Joint Meeting with Fair Board, at Fair/Expo Conference Room Tuesday, November 10 6:00 p.m. Joint Meeting with Redmond City Council, at Redmond City Hall Wednesday, November 11 Most County offices will be closed to observe Veterans'Day. Tuesday, November 17 10:00 a.m. Meeting of 911 Executive Board at 911 Monday, November 23 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session—could include executive session(s) Deschutes County encourages persons with disabilities to participate in all programs and ® activities. To request this information in an alternate format please call (541)617-4747, or email ken.harmsdeschutes.org. Board of Commissioners' Business Meeting Agenda Monday, October 26, 2015 Page 4 of 4 J ( . r., Community Development Department Planning Division Building Safety Division Environmental Soils Division * � P.O. Box 6005 117 NW Lafayette Avenue Send, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: June 15, 2015 (For the Board's June 22nd work session) TO: Deschutes County Board of Commissioners FROM: Paul Blikstad, Senior Planner RE: File No. 247-15-000001-LUP (247-15-000298-A) Summary The purpose of this work session agenda item is for the Board to decide whether to accept an appeal of File No. 247-15-000001-LUP (247-15-000298-A) or to decline review. If the Board accepts the appeal, the Board will then decide how to hear the appeal — on the record, or de novo. And if de novo, whether it will limit the appeal only to specified issues. Based on this decision, staff will prepare an order for Board approval at a future regular business meeting. 1. Background The applicants, Paul and Hana Cooper submitted an application for a Limited Use Permit for a commercial events facility in the Exclusive Farm Use Zone. The applicants submitted the Limited Use Permit application to allow up to 6 commercial events annually (weddings) to be held on the subject property, identified on County Assessor's Map 16-12-32, as tax lots 314 and 301. Tax lot 314 would be the location of the wedding events. This tax lot has a dwelling, but no one resides in it. Tax lot 301 also has a dwelling and it is where the applicant Hana Cooper lives. The applicants have farm use on both tax lots as established by the growing, cutting and sales of hay. Based on their application, Hana Cooper will be the person responsible for monitoring the events. The record shows that the house on tax lot 314 has been advertised for rental and rented out by the applicants since 2011 for use for corporate retreats, family reunions and other vacation rentals years as "Cooper Ranch," and "Cooper Ranch Weddings." The subject property is advertised online on eight websites including Vacation Rental By Owner ("VRBO") as a "spacious rustic ranch home,"with 4 bedrooms and 2.5 baths, that sleeps up to 15. There is no evidence the County has permitted this commercial use and/or related uses of the subject property advertised on-line, including but not limited to swimming, fishing, golf and trap shooting.' The applicant intends to continue overnight rental of the residence on the subject property in association with the wedding events for the bride and groom,wedding party and/or guests. However, DCC 18.16.042(7)directs that no Quality Services Performed with Pride w T i , This application went before the County Hearings Officer on March 31, 2015. The Hearings Officer's decision was mailed to the parties on May 27, 2015, denying it based on: • Failing to meet its burden of proving that the primary use of the property over the last three years is a "farm use." Evidence in the record shows it has been used for wedding venues and vacation rentals. The record also shows that income from these wedding venues in 2014 is more than that received from farming, even if a portion of the 2014 tree sales are considered to be farming revenue. • Not demonstrating that all trees on the property were planted and grown on the subject property. No income from the sale of trees was part of the IRS Schedule F in the applicant's 2013 tax return. The applicant did not produce any evidence that shows reported income from the sale of trees grown on the property to the IRS. • Even if the farm could be interpreted to include growing and harvesting of trees on-site, there is no connection between such use and the wedding events, because the trees are not proposed to be used in any way, other than as display adjacent to advertisements. • The proposed commercial operations comprise 49.8% of the total projected revenue from the property, combining established farm sales and commercial revenue of $45,115.3 The calculations are based on limited income evidence and there is no credible or reliable evidence in the record showing income trends. The County has established a limit on the percentage of revenue from commercial activities in conjunction with farm use, which must be "incidental and subordinate," at 40%. 2. Appeal The applicants appealed the Hearings Officer's denial of the Limited Use Permit application. The notice of appeal lists six alleged errors in the Hearings Officer's decision. They are listed as items a thru f on pages 1-3 of the notice of appeal. The appeal of the Hearings Officer's decision on file no. 247-15-000001-LUP must now be processed. The 150-day review period under ORS 215.427 and Deschutes County Code 22.20.040 for this application ends on July 18, 2015. The applicant has submitted an email into the record indicating they will toll the clock for 120 days in order for the Board to hear the appeal. agri-tourism or other commercial event or activity may begin before 7:00 a.m.or end after 10:00 p.m. This provision prohibits the continued use of the property after 10:00 p.m.for overnight accommodations proposed as part of the application. Therefore, commercial activities in conjunction with farm use preclude overnight rentals. 2 With respect to farm use revenue,the applicant submitted four pieces of documentary evidence and testimony. The applicant filed a 2013 IRS Schedule F schedule reporting hay profits for grain grown on all properties it owns,without a break-down of hay sales from the subject property. No other IRS tax filings were submitted for 2011,2012 or 2014, The applicant did not submit any documentation from a CPA or accountant. The Hearings Officer noted that prior approvals of commercial uses on EFU-zoned properties have been supported by at least two years of income tax returns and/or other competent proof from licensed CPAs or accountants. 3 To date,substantial evidence in the record can only support a finding that a total of$22,615($16,310 in hay sales and$6,305 in tree sales)was made by the applicant in 2014 from farm use sales.With a prohibition on overnight rentals,commercial revenue is projected to be$22,500 annually. 3. Board Decision/Direction The Board must decide whether it will hear this appeal. The applicant has requested a de novo review of the application. If the Board decides to hear it, the Board will need to determine whether it will review the appeal on the record, or de novo. And if de novo, whether it will limit the appeal to only specified issues. Per DCC 22.32.035(D), the Board may consider only the following when determining whether to hear an appeal: 1. The record developed before the lower Hearings Body; 2. The notice of appeal; and 3. Recommendations of Staff. 4. Attachments Attached with this memorandum are the following: • Applicant's Notice of Appeal • Hearings Officer's decision • Map showing the location of the subject property relative to the surrounding area The file contains a number of letters in opposition to the application, mainly from the Winston Ranch property owners, located generally west and northwest of the applicant's property. These letters can be viewed on-line in DIAL. /5--,29t - 4- , ) , E(77', (..,_ IVECEIVED .., :°, 1 2015� . Communit Development Department tment 1 Planning Division Building S*f ty ie. yi agbivlslnn P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ APPEAL APPLICATION a FEE: ,D2gICI EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color p p 9 9 areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County,: Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010)or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. G 3c1- D∎ID.- Appellant's Name(print): GU_.t'..� �6�lpk✓ � '�irlG1 CnC��.er Phone: (�:��'1) Mailing Address: P o ..-ica x La 5 I t((1'(.L4dtbra City/State/Zip: (ne(( d Land Use Application Being Appealed:_al a �--i 1 -t5 00 DO 0 1 - G u e Property Description: Toti ip I l e a Range I . Section 3 ,, Tax Lot 3 d j i a, ..r) ( Appellant's Signature: � 1" u4 L.,tet EXCEPT AS PROVIDED IN SECTIO 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVA H� J OR, FOR. ON-THE-RECORD APPEALS,THE DATE SET FOR RECEIPT OF WRITTEN RECOR (over) \\\ th 3/13 IN THE MATTER BEFORE THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS In re File No. 247-15-000001-LUP Paul Cooper and Hana Cooper, NOTICE OF APPEAL Applicants-Appellants NOTICE OF APPEAL OF DECISION OF DESCHUTES COUNTY HEARINGS OFFICER DATED MAY 27 2015 1. DCC 22.32.010 Who May Appeal. Paul Cooper and Hana Cooper are the Applicants below, parties to the proceedings, and are entitled to appeal under DCC 22.32.010(A)(1). 2. DCC 22.32.051 Filing Appeals. Paul and Hana Cooper submit the attached Notice of Appeal form and the appeal fee and the following statement of issues on appeal. 3. DCC 22.32.020 Notice of Appeal. This Notice includes the following statement of issues, a request for a de novo review by the Board of County Commissioners and reasons why the Board should review the Hearings Officer Decision and why it should do so de novo. 4. Issues on Appeal. The Hearings Officer Decision is in error in the followings ways: a. The Hearings Officer erred in finding that the Applicants had not met their burden of proof to show that the trees that are for sale and have been sold on the subject property were raised and harvested on the property so as to constitute a farm use. Page 1 of 3 NOTICE OF APPEAL 4 , + For example, the Hearings Officer incorrectly interpreted ORS 215.203 to require trees to have been "planted and grown on the subject property" in order to qualify as farm use. There is abundant evidence that the trees have been nurtured on the property "for years,"for example as shown in the photographs in the record of half-buried tree stock, and in the staff report's observation of trees growing in containers in the ground. The nurturing and maturation of those trees on the subject property before their sale constitutes being "raised" and "harvested" on the property in order to qualify as farm use under ORS 215.203. There is no requirement that the trees be "planted"on the subject property to qualify as farm use, as the hearings officer decision incorrectly found. b. The Hearings Officer Decision erred in disqualifying income from tree sales as inadequate, and in disregarding or discrediting the testimony of the Applicants about that tree income. c. The Hearings Officer Decision erred in disqualifying all or part of the income from tree sales in the equation for whether the proposed wedding activity was "incidental and subordinate"to the farm use on the property on the grounds that the Coopers did not show a connection between the tree sales and the weddings. There is no requirement in the County Code or in state law that every aspect of a property's farm use has to be separately "connected" to the proposed commercial events. In this case, the Applicants demonstrated a sufficient connection between the hay grown and sold on the property and the weddings to meet the qualification for such a connection between the property's farm use and the incidental events. There was no requirement that the tree sales had to be incorporated into the weddings too, other than the signs advertising the tree sales. d. The Hearings Officer Decision erred in finding that the overnight use of the property by members of the wedding party constituted agritourism or a commercial event occurring after 10:00 pm. The event in question is the wedding itself, which in every case will be finished by 10:00 pm. The guests' overnight stay on the property does not constitute an unlawful after-hours agritourism or commercial event. e. The Hearings Officer Decision erred in finding and!or concluding that applicant would realize additional income from the rental of the property in addition to the $3500 wedding event fee plus $250 cleaning fee. Page 2 of 3 NOTICE OF APPEAL , f. The Hearings Officer Decision erred generally in concluding that the proposed commercial use will not be incidental and subordinate to the existing farm use on the property, including her finding that the applicant failed to meet its burden of proving that the primary use of the property over the past three years has been farm use. 5. Request for De Novo Review. Appellants request review by the Board of County Commissioners de novo. This application represents a significant question of interpretation of the County Code and further development of the County policies on wedding events, following the and other opinions. De novo review is required because it is Downs decision q P necessary to fully and property evaluate the credibility of the evidence submitted in the record, as faulted by the Hearings Officer, and fully consider the Hearings Officer's conclusions. Dated this day of June 2015. t OiCtIkk 6-944- al C� oiler Hana Cooper Page 3 of 3 NOTICE OF APPEAL f :: Community Development Department L11 / Planning Division Building Safety Division Environmental Soils Division d P.O. pox 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdr1/ DECISION OF THE DESCHUTES COUNTY HEARING OFFICER FILE NUMBER: 247-15-000001-LUP HEARING DATE: March 31, 2015 6:30 p.m. Barnes and Sawyer Rooms of the Deschutes Services Building 1300 N.W.Wall Bend, OR 97701 APPLICANT: Paul Cooper and Hana Cooper P.O. Box 365 Monument, OR 97864 OWNER: Paul and Loreen Cooper APPLICANT'S REPRESENTATIVE: Francis Hansen& Martin LLP Michael H. McGean 1148 NW Hill Street Bend, OR 97701-1914 REQUEST: The applicant is requesting a Type 2 Limited Use Permit for a commercial events/activities facility on a 54-acre property in the Exclusive Farm Use Zone. STAFF CONTACT: Paul Blikstad, Senior Planner RECORD CLOSED: April 29, 2015 I, APPLICABLE STANDARDS AND CRITERIA: A. Title 18, Deschutes County Zoning Ordinance 1. Chapter 18.04,Title, Purpose and Definitions * Section 18.04.030, Definitions 2. Chapter 18.16, Exclusive Farm Use(EFU)Zone Quality Services Performed with Pride * Section 18.16.025, Uses Permitted Subject to the Special Provisions Under DCC Section 18.16.038 * Section 18.16.042, Agri-Tourism and other Commercial Events or Activities Limited Use Permit * Section 16.16.043,Single Permit * Section 18.16.060, Dimensional Standards *Section 18.16.070,Yards 3. Chapter 18.80, Airport Safety Combining(AS)Zone *Section 18.80.020,Application of Provisions * Section 18.80.028, Height Limitations *Section 18.80.044, Land Use Compatibility Requirements *Section 18.80.054,Conditional Uses B. Title 22, Deschutes County Development Procedures Ordinance C. Oregon Revised Statutes (ORS) Chapter 215, County Planning, Zoning, Housing Codes 1. ORS 215.296, Standards for Approval of Certain Uses in Exclusive Farm Use Zones 2. ORS 215.427, Final Action on Permit or Zone Change Application II. FINDINGS OF...,FACt: A. LOCATION: The subject property consists of two tax lots: tax lot 314 has an assigned address of 64655 Old Bend-Redmond Highway, and tax lot 301 has an assigned address of 64800 Simon Road. It is identified on the Deschutes County Assessor's Map, located in Township 16., Range 12 East, Tax Lot 00314. S. LOT OF RECORD: Tax lots 314 and 301 are both legal lots of record pursuant to being Parcels 1 and 2 of Plat No. MP-87-18, respectively. C. ZONING AND PLAN DESIGNATION: The subject property is zoned Exclusive Farm Use—Tumalo/Redmond/Bend subzone (EFU-TR13). The property is also located within the Conventional Housing (CHC) Combining Zone. A very small portion of the property is located within the Airport Safety (AS) Combining Zone'. The property is designated Agriculture on the Deschutes County Comprehensive Plan. D. SITE DESCRIPTION: The two tax lots combined constitute approximately 54 acres. Tax lot 314 is 34.14 acres and includes an existing dwelling, and several agricultural or storage buildings. The Assessor's records indicate it has 8 acres of water rights. Tax lot 301 is 19.67 acres and has an existing dwelling and two agricultural structures. The Assessor's records indicate it has 17 acres of water rights. The burden of proof submitted by the applicant states that the farm use on tax lot 314 consists of hay production and horses. The applicant later submitted documentation and testified that The subject property is approximately 10 miles from the Redmond Airport. 247-15-000001-LUP Page 2 • the farm use on tax lot 314 includes growing trees and on-site tree sales. The farm use on tax lot 301 is hay production. The undisturbed portions of the property have a vegetative cover of juniper trees and scrub brush. Both tax lots have irrigated fields with wheel lines. Tax lot 314 is accessed from an existing driveway off of the Old Bend- Redmond Highway. Tax lot 301 is accessed from Simon Road. The topography of the site is level to rolling, with some level areas, such as the hayfields, and higher rock outcrop. The tax lots are served by existing domestic wells, and on-site septic systems. E. SURROUNDING ZONING AND LAND USES: The properties surrounding the subject property consist of residences with some farming occurring, which are zoned both EFU- TRB, and also Multiple Use Agricultural (MUA-10). To the west/northwest across Simon Road is the Winston Ranch subdivision zoned MUA-10. To the north, south and east is land zoned EFU-TRB, some of which is in farm use. There is also much dry land. F. PROPOSAL: The applicant proposes to establish a commercial events or activities facility on the subject property, with up to six commercial events/weddings each year from May through September. The events or activities are proposed to take place solely on Tax Lot 314. A maximum of 150 people will be in attendance at each event.2 According to the burden of proof,the events will typically take place on Saturdays, with a time frame of 8:00 a.m. to 10:00 p.m. Music will be terminated by 9:00 p.m. (as testified by the applicant at the hearing) and all people in attendance will vacate the site by 10:00 p.m. Set-up and wedding rehearsals will take place the day prior to the event, and clean-up will take place the day following the event. The applicant intends to continue overnight rental of the residence on the subject property in association with the wedding events for the bride and groom, wedding party and/or guests. The burden of proof states, "All wedding activities and events will take place in open areas, and around the pond, and lawn areas surrounding the house, in approximately a 4 acre space." Access to the site is via a f4 mile gravel driveway with egress from the Old Bend Redmond Highway. G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and received comments from the Deschutes County Transportation Planner, Deschutes County Road Department, Deschutes County Building Division, Bend Fire Department, Swalley Irrigation District, and the Deschutes County Environmental Health Department. These public agency comments are set forth in the findings below. The following agencies did not respond to the notice; Deschutes County Environmental Soils, Central Electric Cooperative, Pacific Power and Light, Centurylink, Deschutes County Assessor. H. PUBLIC COMMENTS: The Planning Division sent notice of this proposal to all property owners within 750 feet of the subject property. Prior to the public hearing, several letters expressed opposition to the application, and two letters in support were submitted. The concerns expressed in the letters of opposition deal with the following: • Noise emanating from the wedding receptions to be held at the site. 2 Originally,the burden of proof stated that the maximum number of guests would be limited to 250. Since then, the applicant has submitted evidence that he will restrict the events to a maximum of 150 guests. 2471 5-000001-LUP Page 3 • Effectiveness of noise monitoring • Increased traffic on the Old. Bend-Redmond Highway and the possibility of event attendees having alcohol impairment. • The use of Simon Road for any portion of the events facility, and it being a private road maintained by the Winston Ranch homeowners. • Fire access road requirements and existing access road width • Safety of access to the property • The possibility of the use setting a precedent for more events facilities in Tumalo. • Fire danger from hay being used for seats/tables (i.e. cigarette smoking and candles). • The ranch being available for other activities(not just weddings). • The stated hay sales figures (gross farm income) include the applicant's farm outside of Deschutes County. • Whether tree,sales on the property are of trees actually grown on-site • Whether a previously-approved commercial nursery is in operation • If the commercial nursery.is in operation,whether both uses may co-exist • Questions concerning the actual amount of event fees and projected revenue from operation of wedding events • Safety of well water consumed at the house at 64655 Old Bend Redmond Highway by the wedding party and guests • The possibility of guest parking in an existing parking lot that is located within a 100' yard setback • The potential-of fire.hazards resulting from parking in dry grass areas • Adequacy of parking on-site • The lack of supervision of events on the subject property • Use of the subject property for overnight rentals NOTICE REQUIREMENTS: The applicant complied with the posted notice requirements of Section 22.24.030(B) of Deschutes County Code (DCC) Title 22. The applicant submitted a Land Use Action Sign Affidavit, dated January 5, 2015, indicating the applicant posted notice of the land use action on that same date. J. REVIEW PERIOD: This application was submitted on January 5, 2015. The Planning Division sent the applicant an incomplete application letter dated January 29, 2015, indicating that.a Hearings Officer Deposit fee is required for the review process. The applicant submitted the deposit fee on February 18, 2015. Therefore the application was deemed complete and accepted for review on February 18, 2015. The 150th day upon which the decision on this application is required is July 18, 2015. K. LAND USE HISTORY: The subject property includes the following prior land use applications: MP-87-18, Partition to divide a 53.81-acre (net acres) parcel into two parcels in the EFU zone. The partition was filed with the County Clerk in December of 1987. CU-06-107/SP-07-21, Conditional Use Permit and Site Plan approval for a commercial activity in conjunction with farm use, specifically, "The commercial activity is to include the sale of nursery stock produced off-site. The applicant, in the submitted burden of proof states that the farm use on the property consists of the growing and selling of trees 247-15-000001-LUP Page 4 and shrubs. The applicant proposes to sell plant materials that are shipped in from outside the county as part of the commercial activity operation." The conditional use permit received final approval on February 1, 2007. The site plan received final approval on April 16, 2007. The applicant testified that this use is not currently occurring on the property. The record shows that the applicants have previously hosted as many as eighteen (18) prior wedding events on the property over the past 3-4 years. There is no evidence any such events were conducted pursuant to a limited use permit, or any other permit or license from the County. On July 2, 2014, Deschutes County Code Enforcement Technician John Griley sent a notice of Code Violation, No. 247-14-00101-CE to Paul and Loreen Cooper concerning the use of a wedding event venue without required permits. There is no evidence of any further code enforcement action. The record also shows that the house on the subject property has been advertised for rental and rented out by the applicants since 2011 for use for corporate retreats, family reunions and other vacation rentals years as "Cooper Ranch," and "Cooper Ranch Weddings." The subject property is advertised online on eight websites including Vacation Rental By Owner ("VRBO") as a "spacious rustic ranch home," with 4 bedrooms and 2.5 baths, that sleeps up to 15. There is no evidence the County has permitted this commercial use and/or related uses of the subject property advertised on- line, including but not limited to swimming, fishing, golf and trap shooting. L. ADJACENT PARCELS: The EFU-zoned properties in the area that are adjacent to the subject property are as follows: 247-15-000001-LUP Page 5 Tax Lot No. Owner Size(Acres) Dwelling Farm Use Tax Deferred 16-12-29, 1103 Leshaw 19.72 1998 Pasture Yes 16-12-29, 1202 Francis 6.1 No Pasture Yes 16-12-32,302 Lynch: - 13.27 1996 _ Pasture Yes 16-12-32,400 Farmer _ 17.39 1964 None No 16-12-32,201 Sale 6.75 1993 Pasture Yes 16-12-32,306 _ Alcala 5.4 1980 None No _16-12-32,.308 Schilling 8.45 1980 None No 1,6-.12-32, 300 - Palen 7.16 1979 None No 16-12-32, 313 , Foster __ No None No 16-12-32,,310 Foster:. . 17.78 No Dry ground Yes 16-12-32,309 Foster 1'6-12=32; 305 Hollis 5 __ 1No5 Dry ground Yes , es 16-12=32, 316 Kuhn 10.02 No Pasture - Yes III. CONCLUSIONS OF LAW: Title 22, Deschutes County Zoning Ordinance. A. Chapter 22.24. LAND USE ACTION HEARINGS 1. Section 22.24.040. Notice of Hearing or Administrative Action A. Individual Mailed Notice. 1. Except as otherwise provided herein, notice of a land use application shall be mailed at least 20 days prior to the hearing for those matters set for a hearing, or within 10 days after receipt of an application for those matters to be processed administratively with notice. Written notice shall be sent by mail to the following persons: a. The applicant. b. Owners of record of property as shown on the most recent property tax assessment roll of property located: ••* 3. Within 750 feet of the property that is the subject of the notice where the subject property is within a farm or forest zone, except where greater notice is required under DCC 22.24.030(A)(4) for structures proposed to exceed 30 feet in height. FINDING: The Hearings Officer finds notice of the land use hearing on this application was provided to parties within 750 feet of the subject property, as evidenced by the Certificate of Mailing, dated January 13, 2015. Greater notice is not required under DCC 22.24.030(A)(4) because no new structures proposed to exceed 30 feet in height are proposed. The public hearing was conducted pursuant to Chapter 22.24 of the procedures ordinance. B. Posted Notice. 247-15-000001-LUP Page 6 1. Notice of a land use application for which prior notice procedures are chosen shall be posted on the subject property for at least 10 continuous days prior to any date set for receipt of public comment. Such notice shall, where practicable, be visible from an adjacent public way. FINDING: The Hearings Officer finds that proper posted notice of the land use application was posted on the subject property for at least 10 continuous days prior to the public hearing. This is evidenced by the Land Use Action Sign Affidavit, dated January 5, 2015, indicating the applicant posted notice of the land use action on that same date. C. Published Notice. In addition to notice by mail and posting, notice of an initial hearing shall be published in a newspaper of general circulation in the County at least 20 days prior to the hearing. FINDING: The Hearings Officer finds that legal notice of the public hearing was published in the Bend Bulletin newspaper on March 3, 2015, more than 20 days prior to the public hearing. Title 18, Deschutes County Zoning Ordinance. B. CHAPTER 18.16. EXCLUSIVE FARM ZONE 1. Section 18.16.025. Uses Permitted Subject to the Special Provisions Under DCC Section 18.16.038 or DCC Section 18.16.042 and a Review Under DCC Chapter 18:124 where applicable. J. Agri-tourism and other commercial events and activities subject fo DCC 18.16.042. FINDING: Deschutes County Code 18.04.030 defines commercial event or activity as follows: "Commercial event or activity means any meeting, celebratory gathering, wedding, party, or similar uses consisting of any assembly of persons and the sale of goods or services. It does not include agri-tourism. In DCC 18.16.042, a commercial event or activity shall be related and supportive of agriculture." The applicant is proposing a commercial events and activities facility on the subject property to host up to six weddings/events annually, with the option of including overnight rental of the on-site residence for an additional fee. Therefore, the Hearings Officer finds the applicant proposes a use that may be permitted in the EFU-TRB zone with certain restrictions. Staff states, and the Hearings Officer agrees that there are no criteria under DCC 18.16.038 for the proposed use,3 and it is not subject to site plan review under DCC Chapter 18.124. Compliance with the criteria under DCC 18.16.042 is addressed in the findings below. 3 Section 18.16.038 establishes special conditions for uses not included in the applicant's proposal. 247-15-000001-LUP Page 7 2. Section 18.16.042 Agri-Tourism and other Commercial Events or Activities Limited Use Permit A. Agri-tourism and other commercial events or activities related to and supportive of agriculture may be approved in an area zoned for exclusive farm use only if the standards and criteria in this section are met. FINDING: Compliance with the requirement that the proposed commercial events or activities facility in the Exclusive Farm Use Zone be "relate to and supportive of agriculture" is discussed in detail in the findings below. B. Application. The application shall include the following. 1. The General Provisions information required in DCC 22.08.010. FINDING: County Assessor's records indicate the applicant, Paul Cooper, is an owner of the subject property. Loreen Cooper is also an owner of the subject property. Hearings Officer Karen Green has held in previous decisions that it is not necessary for all owners of the property to sign a land use application. Accordingly, the land use application was properly submitted by a property owner. The applicant submitted the Limited Use Permit application form, a burden of proof statement addressing the criteria in DCC 18.16.042, the correct filing fee, and an the affidavit attesting to the, fact that the land use action sign was posted on the property on January 5, 2015. The applicant and its representative provided oral argument and testimony at the public hearing on March 31, 2015. Several corrections and revisions to the applicant's burden of proof statement were made prior to the hearing. The applicant filed post-hearing submissions during the period in which the record remained open. 2. A written description of: a. The proposal. FINDING: The Hearings Officer finds the applicant's application, original and supplemental burden of proof statements, other record submissions from the applicant and his attorney, and the applicant's testimony provide detailed written descriptions of appellant's proposal to establish a commercial event facility and to conduct up to six weddings/events per year. The burden of proof states in relevant part: "We are proposing to have six (6) commercial events/weddings on the property per year, from May thru September, on the non-farming portion of the property. The events will allow a maximum of 250 people in attendance and most events will take place on Saturdays. The time frame for these events will be from 8:00 a.m. to 10:00 p.m. All music during such events will be monitored by a meter required for this purpose and music will be terminated by 9:30 p.m. and all people/participants/attendants will vacate the site by 10:00 p.m." The applicant corrected and clarified the proposal on pages 1-2 and 4-5 of its April 14, 2015 letter to the Hearings Officer, respectively, as follows: 247-15-000001-LUP Page 8 "The Coopers do not provide any domestic water for the events. The guests are required to furnish bottled drinking water for all guests at the events. A copy of the Coopers' standard wedding venue agreement is attached hereto as Exhibit 1. The agreement demonstrates that the wedding party is required to provide and (sic] adequate supply of bottled water for the events." "The wedding venue agreement also provides that the wedding party is responsible for all catering, food, drink, and food and drink service, if alcohol is serviced, for providing OLCC-licensed servers (Those OLCC-licensed servers are commonly provided by local caterers and suppliers). The Coopers do not provide any of those services. Further, the per-event charge of$3500 is all-inclusive, covering rental of the facility and all tables and chairs. The only other incidental charge is a $250 per-event cleaning fees. There are no other facilities charges, or the like The annual gross commercial income from the property, even including that fee, should not exceed $22,500 ($3500 per event with a maximum of six events per year, plus $250 cleaning fees," "As noted at the hearing, applicant is discontinuing any other vacation rental use of the property apart from the six proposed wedding events. Applicant's listing of the property on VRBO for a wedding venue, however, is a primary source of advertising for those events. The Coopers receive approximately 60% of their wedding inquiries from VRBO, with a smaller amount coming from other web sites and through word of mouth." A sample Wedding Venue Rental Agreement for Cooper Ranch shows that, in addition to the $3500 flat-rate rental for the wedding venue (plus cleaning fee and pet fees), "lodging tax of .09% x $. ," may be added to the total due. The Rental Agreement also specifies check-in and check-out times to be filled in. Accordingly, I find that the use of the property as a commercial events/wedding facility is also proposed to include rental use of the residence on the property associated with wedding events. b. The types of agrl-tourism and other commercial events or activities that are proposed to be conducted, including the number and duration of the agri-tourism and other commercial events and activities, the anticipated maximum daily attendance and the hours of operation, and how the agrl-tourism and other commercial events or activities will be related to and supportive of agriculture and incidental and subordinate to the existing farm use on the tract. FINDING: The Hearings Officer finds this subsection requires me to address three issues: (1) the types and operating characteristics of the proposed commercial events/activities; (2) whether and how such events/activities will be "related to and supportive of agriculture;" and (3) whether and how such events/activities will be "incidental and subordinate to the existing farm use" on the property. Each of these issues is addressed in the findings below. 1. Types and Operating Characteristics of Proposed Commercial Events and Activities. As discussed above, the applicant proposes to conduct up to six weddings/commercial events per year. The weddings/events would take place on an approximately four-acre portion of the subject property in open areas, including grassy areas near the irrigation pond and the existing dwelling used as a vacation rental. Each wedding/event would not exceed 72 hours in duration, 247-15-000001-LUP Page 9 , including set-up, the event itself, and cleanup. The weddings/events could occur on any day of the week but typically on Saturday. Weddings/events would take place between 8 a.m. and 10 p.m The maximum number of attendees would be 150. The proposed use would include the option of the wedding party and/or guests to rent the existing ranch house on site for overnight accommodations. 2. How the Proposed Commercial Events and Activities Will Be Related To and Supportive of Agriculture. Hearings Officer Karen Green recently interpreted the phrase ""related to and supportive of agriculture" in the context of"commercial events and activities" under Section 18.16.042 in her May 5, 2015 decision in the Brown administrative appeal (File Nos. 247-15-000061-A, 247-14- 0.00202-LUP). In that decision, Hearings Officer Green relied on the decision in Crescent Moon (CU-14-7, LM-14-28) and other decisions cited therein, to rule that a commercial event or activity could be considered "related to and supportive of" farm use on the subject property solely because it provides supplementary income to the farmer. In the decision in Crescent Moon (CU-14-7, LM-14-28), the phrase "related to agriculture" was interpreted and applied in the context of a commercial use in conjunction with farm use consisting of an "alpaca boutique" on property on which alpacas are bred, raised and sold. The following relevant findings were made: "As discussed above, the Hearings Officer has found both the production of hay and the breeding, raising, marketing and selling of alpacas on the.subject property constitute 'farm use.'I further find the farm use occurring on the subject property as of the date the record in this matter closed finally consists of hay production and the breeding, raising and sale of alpacas. Although the applicants had not yet moved all 84 of their alpacas onto the subject property due to lack of adequate fenced pasture, I find the presence of approximately one-quarter of their herd on the subject property is sufcient to demonstrate the existence of farm use consisting of the breeding, raising and sale of alpacas on the property. The applicants'proposed commercial use consists of the following: a. the sale of fleece from alpacas raised on the subject property; b. the sale of products made from such fleece, such as yarn created by spinners from fleece purchased from the applicants; c, the sale of blankets, socks, gloves and mittens made by weavers from fiber from alpacas raised on the subject property; d. the sale of farm products not produced on the subject property, such as garments and other items made from fleece from alpacas not owned by the applicants; and e. the sale of incidental items'consisting of jewelry not made from alpaca products. . The Hearings Officer finds the sale of fleece from the applicants'alpacas and the sale of products made from their alpacas'fleece clearly constitutes a commercial 247-15-000001-LUP Page 10 activity related to the farm use occurring on the subject property -- i.e., the breeding, raising and sale of alpacas. The staff report states, and l agree, that the sale of farm products not produced on the subject property — i.e., garments and other products made from fleece of alpacas not owned by the applicants or raised on the subject property — reasonably can be considered a commercial activity related to the farm use occurring on the property provided such items are limited to alpaca fleece and alpaca fleece products." The Hearings Officer noted in the Crescent Moon decision that former Hearings Officer Ken Helm also had addressed the "related to" language in his decision in Newell/Allied Show Services (CU=13-31, SP-13-18). in that case, Hearings Officer Helm considered a commercial use in conjunction with farm use consisting of horse shows, and made the following relevant findings: "While growing hay to feed horses is a farm use, if the only farm use of the property were for growing hay, the proposed horse events would be so marginally related, if related at all, to the actual farm use that they would not constitute a commercial activity in conjunction with farm use under the statute." Hearings Officer Helm found that because the applicants also raised and trained horses on their property, the proposed horse shows were sufficiently "related to" that farm use to qualify as a commercial use in conjunction with farm use. Interpretation of the phrase "related to and supportive of" agriculture in Section 18.16.042, is aided by several documents discussed below, including the legislative history of that section, dictionary definitions, and written guidelines and comments from the Department of Land Conservation and Development (DLCD). The administrative decision noted Section 18.16.042 't' of 2011 Senate Bill SB was adbp ed under the authority f 20 ( ) 960 which established, but did not define, the "related'to and supportive of agriculture" standard for agri-tourism and commercial events/activities. The administrative decision examined the 2012 DLCD guidelines for wineries and events in EFU Zones which,include the following relevant language: What does `related to'and 'supportive of agriculture mean in SB 960? * * A: We interpret 'related to' and 'supportive of' to mean that the proposed agri- tourism or other commercial event or activity is physically and/or economically logically connected to, and supports, an existing on-site farm operation. For example, 'related to'could mean that the proposed event involves a product that is produced on site that has a meaningful and significant relationship to the proposed event. 'Supportive of' could involve the generation of supplemental income to help support a farm."(Emphasis added.) The administrative decision in Brown noted that Webster's New World Dictionary includes the following definitions: • Related: "connected or associated, as by origin or kind." • Supportive: "that gives support, help or approval." Finally, the administrative decision in Brown also quoted the following comments submitted by DLCD's Policy Analyst Michael Morrissey and Farm/Forest Specialist Katherine Daniels during 247-15-000001-LUP Page 11 the county's consideration of the adoption of Ordinance 2012-004 authorizing "agri-tourism" uses: "We aren't sure a wedding meets a definition of agri-tourism, but it isn't hard to see it as another commercial event.' The department believes that 'related to and supportive of agriculture' (together with incidental and subordinate') is specific to the site. That means there needs to be on-site farming taking Owe, and that any wedding activities must either provide supplementary income to a ii, .•.e afar t : ear _ : tare .r !II; • t, esr i:l $ g:. h, onsite farming. It could also mean that wedding activities must rise products crown on the farm as part of the wedding activities.(ex.. flowers from a flower farm, etc.). However, as an example, a free standing 15-acre 'wedding mill,'on an EFU zoned site, with a dwelling and a personal backyard vegetable garden would not meet the standards, in our opinion."(Emphasis added.) The Hearings Officer notes that in the Downs decision.(LUP 12-2), the Deschutes County Board of Commissioners (hereafter "board") approved the applicants' request for a Type 2 LUP to conduct weddings on their EFU-zoned parcel based in part on the following findings: "The Board finds the proposed commercial weddings are related to and supportive of agriculture for this application for the following reasons: • People choosing to have weddings in a pastoral setting with its green fields, irrigation sprinklers, tractors, hay balers, and associated sounds. • Hay sales by the applicant from contacts made with potential customers from attendees at the weddings(networking). • The applicant's proposal to have each wedding or commercial event include a dish prepared by a caterer which is made with grass hay (seasoned like with[sic]mesquite wood). • The weddings provide supplemental income for the farm use on the property." Considering all of the above sources, the Hearings Officer finds that to demonstrate the proposed weddings/events are "related to and supportive of" the faun use on the subject property, the applicant must show: (a)the existence of farm use on the subject property; (b)that there is more than a marginal connection between the farm use — hay production and sales of trees grown on-site — and the weddings/events; and (c) participants at the weddings/events support that farm use through payment of fees, purchase of farm products and services from the applicant, etc. Each of these criteria are addressed as follows: a. Farm use of the subject property. Is there a farm use,as defined in ORS 215.203(2), on the property? Oregon Revised Statute (ORS)defines a farm use under ORS 215.203(2) as: "(2)(a)As used in this section, "farm use"means the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting 247-15-000001-LUP Page 12 a and selling crops or the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur-bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof. "Farm use" includes the preparation, storage and disposal by marketing or otherwise of the products or by-products raised on such land for human or animal use. "Farm use"also includes the current employment of land for the primary purpose of obtaining a profit in money by stabling or training equines including but not limited to providing riding lessons, training clinics and schooling shows. "Farm use"also includes the propagation, cultivation, maintenance and harvesting of aquatic, bird and animal species that are under the jurisdiction of the State Fish and Wildlife Commission to the extent allowed by the rules adopted by the commission. "Farm use"includes the on-site construction and maintenance of equipment and facilities used for the activities described in this subsection. "Farm use"does not include the use of land subject to the provisions of ORS chapter 321, except land used exclusively for growing cultured Christmas trees as defined in subsection (3)of this section or land described in ORS 321.267(3) or 321.824(3). (emphasis added). ORS chapter 321 deals with timberland and forest taxation, and is not applicable to the applicant's property. I find that there is a farm use, as defined in ORS 215.203(2) on the property, as established by the growing, cutting and sales of hay. The applicant revised his burden of proof in which he Initially estimated sales of 1000 tons of hay annually, with approximately$45,000 income,4 down to'a figure of 65.25 tons from the property annually, from three cuttings with total 2014 income from,hay sales of$16,312.50. The applicant also presented evidence thatlhere is storage on the property for an additional 120 tons of hay, however, such use is not'''farm use," because that hay is not"raised" or"harvested"on the subject property. On March 31, 2015,the applicant submitted a brochure from Cooper Custom Hay, explaining their services. This document offers services to other farmers and property owners with respect to haying, stacking, landscaping, general construction, land clearing, irrigation and excavation. The Hearings Officerfinds that such services do not constitute "farm use" on the subject property under the statutory definition of the term. The applicant has stated that they intend to grow annual and perennial flowers and decorative plants on the property for use in flower baskets and arrangements which will be incorporated into the weddings on the property, and be advertised for sale to wedding guests on site. Because this use is not currently occurring on the subject property, it is not considered in the determination of whether the primary income from the property is from this potential, future farm 'use. There is conflicting evidence in the record as to whether all trees for sale on the subject property are "raised" and "harvested" on the property, so as to constitute a "farm use," under the statutory definition, or whether some or all of the trees are nursery stock grown elsewhere, as 4 The applicant submitted an IRS schedule F form from the year 2013 with his burden of proof,with an amount of gross income listed on the schedule F of$154,400 The submitted schedule does not specify the properties from which farm income was derived. No proof,other than testimony by the applicant and assertions in his attorney's submissions was provided concerning the farm income on tax lots 314 and 301. Farm use income from the subject property for the year 2013 was not separately provided by the applicant. The applicant did not submit a schedule F form for the year 2014,or for any prior years(2011 or 2012) during which both farming and events/vacation rentals were taking place. 247-15-000001-LUP Page 13 contemplated by the applicant when he obtained a conditional use permit and site plan approval in CU-06-107/SP-07-21. The burden of proof characterizes the property as a "horse and hay farm ranch." The burden of proof also states that "trees are grown/raised on the property and the farm as a fully functioning hay growing business."The applicant stated through his attorney that all tree sales come from trees grown and present on-site. Staff confirmed the existence of trees growing in pots on the property. The 2007 application for a conditional use permit and site plan approval states that some trees are grown on-site, but that stock grown elsewhere also would be transferred to the property for nursery sales. The applicant did not present any evidence regarding the nursery operations on site, other than to say that he is not currently operating the nursery. The applicant described tax lot 314 as including 6 acres of irrigated hay, 8.5 acres of horse pasture and "two acres dedicated to nursery tree stock," in a March 31, 2015 submittal. A supplemental burden of proof statement dated March 6, 2015 was submitted to "provide further explanation of how the proposed events will be related to and supportive of agriculture and incidental and subordinate to the existing farm use on the tract." This submittal focuses on use of hay bales during the wedding and advertisement of hay and tree products produced on the property to wedding participants. The applicant describes plans for growing annual and perennial flowers and decorative plants on the property for use in flower baskets and arrangements, as well. Several neighbors testified that the trees currently on-site on the property have been there for years., All of these trees are mature, in pots or burlap sacks, many of which are root-bound. Photographic,evidence and an aerial image from Google Earth dated 2007 show the tocation of the trees on the property, which appears to have remained consistent over the years since the approval of the.conditional use permit and site-plan for a commercial nursery, as evidenced by a comparison to the.July 6, 2014 Google Earth image submitted by the applicants on March 31, 2015. The neighbors testified that they have witnessed "little" activity concerning the trees. There are no signs or advertisements for the sale,of trees on Cooper Ranch. The neighbors have not seen any traffic or customers associated with the two Spring 2014 tree sales referenced in a document submitted by the applicant. The applicant did not produce any testimony or evidence of current tree-growing operations (e.g., nursery/greenhouses for nurturing new starts, trees in various states of maturity, testimony of employees that gr o w the trees, receipts for tools, machinery,ry� su PP supplies, fertilizer, etc. for growing the trees), The applicant did not produce any tax returns evidencing the growing of trees on-site as a farm use. The only evidence submitted by the applicant in this regard, an IRS Schedule F form for 2013, states that the principal crop or activity is hay. The Code from Part IV of Schedule F is entered as 111100 on the applicant's tax return,which refers to oilseed and grain. Per IRS Schedule F, part IV, code 111400 refers to greenhouse, nursery and floriculture production. This code was not used on the applicant's 2013 tax return, nor does it appear that sales of any trees grown on-site were reported to the IRS in 2013. The applicant has not,produced any evidence that shows reported income from the sales of trees grown on the property to the IRS. The Hearings Officer finds that the applicant has not met its burden of proving, 'by a preponderance of the evidence, that all trees on-site were planted and grown on the subject property. The applicant's submitted "inventory" of trees available for sale on the property does not show that the trees were, in fact, grown on site. I find the applicant's bald statements, without more, not to be credible, particularly in light of evidence to the contrary. There is 247-15-000007-LUP Page 14 1, ,r evidence some trees may have been grown on-site, but the record as a whole demonstrates that the"farm use,"of the subject property is growing hay, with incidental sales of trees. As detailed in the findings concerning "incidental or subordinate" below, the applicant has failed to meet its burden of proving that the primary use of the property over the past three years since the property has been used for wedding venues and vacation rentals is "farm use." The record shows that income received from these commercial activities in 2014 is more than that received from farming, even if a portion of the 2014 tree sales are considered to be farming revenue. The Staff Report stated that the applicant has not substantiated the actual farm income from the property. Since issuance of the Staff Report, the limited evidence submitted by the applicant on this requirement is not enough to meet his burden of proof. b. Weddings and other events may be physically and/or economically logically connected to a farm use, and specifically to the existing operation. The applicant's burden of proof statement includes the following analysis on page 3: "We would like to provide access to quiet farm/agricultural land as a secluded setting for weddings. ... The events will be related to and supportive of agriculture and incidental and subordinate to the existing farm use of the track (sic) based upon the income differential between the farming activity and the events, the length of time devoted to farming versus the events, and the gross income differential when comparing the farm use income and the event income. People choose to have their weddings at the Cooper Ranch because of the secluded and beautiful setting, and an outdoor experience, including horses in the fields, sprinklers in the hay fields, lush green fields and lawns with a mountain view. A majority of the groups prefer to have their weddings catered and either in open areas or possibly under tents. Because the events/weddings will be conducted from June through September, we don't anticipate weather requiring the use of tents, but tent usage is a possibility. The hay can be used as seats and tables for guest and as portrait backdrops. We harvest approximately 1000 tons of hay and it is all for sale.5 Any use of the property for such events presents a marketing tool for the sale of hay. The sale of hay is an important part of the family farming operation." In addition,the applicant's burden of proof statement on pages 5-6 states the following: "As noted above, these events are directly related to and support the ranch. The people that want and choose to have their wedding on the Cooper Ranch want to be exposed to and be among wildlife, the horses, the hay fields and hay, farming and ponds and irrigation fields. The simple beauty of this farm together with its fully functioning hay farm and mountain views make for a perfect blend with marriage. The weddings on the Cooper Ranch and the agricultural practices conducted on the property are connected, insubordinate (sic) and incidental to the farm. People who 5 The 1000 tons of hay estimate in the applicant's burden of proof was subsequently reduced to 65 tons of hay from the subject property. 247-15-000001-LUP Page 15 choose this venue have chosen it over other traditional options such as hotels, resorts, golf courses, churches because they like to feel a part of a working ranch. The environment on this property includes all the beauty, sites, sounds, and smells you can't get at a church. Trees are grown/raised on the property, and the farm has a fully functioning hay growing business. The time invested for the weddings will be 6 days(excluding set up and take down) out of the approximately 225 days spent conducting the farm use on the property(less than 5% of the overall time for farm use activities). The area occupied for the weddings is approximately 4 acres of non-farm use land. The ground used for hay and nursery farming is approximately 38 acres. Approximately 36 acres is hay field and free growing areas. The wedding use area occupies none of the irrigated productive farm ground. The gross income from the farm use (grass hay and trees) is between $40,000 and $45,000 per year and the applicant's charge for each event($3,000) times the 6 events ($24,000)6 is less than 50%of the overall gross farm income. The weddings on the ranch are a part of the marketing for the hay and free sales business. The hay the is grown and harvested on the property is sometimes sold to attendees of these events, but at a minimum all attendants take away with them the knowledge of where to buy hay and trees. The farm operation doesn't consist of just a hay business, but the growing of trees on the property and caring for the animals is a year round job. These events expose people to farming in a ranch setting, with lots of hay, horses, mountain views, and the serenity of acres and acres of quiet land. My daughter and I have a custom farming and hay business. Most weddings parties want to use our hay in their weddings as tables and/or chairs, props and even as background for photos. Having the weddings on the farm exposes 100 to 250 people per wedding weekend to our farming and hay business. Further, attendees have purchased hay from our business. Some folks who have purchased hay include Keith Marchington (541-760-0152), Mark Houser (541-419-0267), Roger Hiskey (541-390- 4475), Duane Hirstenow (541-390-8867), Aaron Cricket (541-410-8286), Jeff Moore (541-419-7419), and Sally Currey(503-807-1171). These proposed events are related to and support the primary business on the property which is the selling of hay and trees, and the raising of horses. A portion of the proceeds comes from sales to attendees at these events. The weddings expose hundreds of people from all around the country to the business and farm life and the weddings help generate supplemental income to help support the ranch." There is a hay farming operation on the site. Hay bales consisting of hay grown and harvested on the subject property will be used as tables and chairs for wedding guests and/or back-drops for wedding photography. Hay and trees will be prominently advertised for sale during wedding events. Nana Cooper submitted a supplemental burden of proof on March 9, 2015 stating, "[r]oughly half of past events have in fact led to hay sales." 6 Six events times$3,000 per event is$18,000. The applicant subsequently corrected the estimated revenue from the wedding events,which the Hearings Officer notes does not include rental fees for the residence on site. The applicant also corrected the estimated revenue from sales of farm products grown on site. 247-15-000001-LUP Page 16 The applicant presented evidence showing a connection between wedding attendees, and hay sales. Tygh J. Campbell, a hay broker from Athena, Oregon submitted a letter on March 24, 2015, stating that he became aware of the hay for sale from the property when attending a wedding in July 2012. Photographic evidence in the record shows a large sign posted on top of hale bales and next to evergreen trees stating, "Hay & Trees for Sale," with contact information for Hanna Cooper and Paul Cooper. Additional photographic evidence shows hay bales set up for display, seating and as a location for guests to leave wedding gifts. As the Board of County Commissioners determined in the Downs decision (LUP-12-2), "requiring the use of a farm product(s) from the subject property at each event is necessary to ensure that commercial events or activities are related to and supportive of agriculture." The Hearings Officer determines there is a connection between the proposed wedding events and the farm use of growing and harvesting hay for sale. However, even if the farm use could be interpreted to include growing and harvesting trees on-site, there is no proposed connection between such use and the wedding events, because the trees are not proposed to be used in any way in the wedding events, other than as display adjacent to advertisements. c. Participants at the weddings/events support the farm use through payment of fees, purchase of farm products and services from the applicant I find that the proposed wedding events will bring people to the property who otherwise would not or do not know about the farm use on the property, and allow for the sale of farm products grown on the site. Use of hay bales for seating and dining, as well as for photographic backdrops will additionally showcase the existing farm use of the property. Contact information for guests interested in purchasing hay will be available and advertised. The commercial events will allow a supplemental income for the farming operation. For all these reasons, the commercial events may be considered physically and economically connected to the existing farm use. Considering the above evidence and analyses, and in particular the Board's decision in the Downs LUP application, the Hearings Officer finds the applicant's proposed weddings/events are'related to and supportive or the farm use on the subject property. 3. How the Proposed Commercial Events and Activities Will Be Incidental and Subordinate to the Existing Farm Use on the Property. As discussed in Hearings Officer Green's recent decision in Brawn, discussed above, the phrase"incidental and subordinate to" is not defined in Title 18 or SB 960, or elsewhere in state law or Land Use Board of Appeals (LUBA) decisions. Staff recommends and the Hearings Officer agrees that, to apply the meaning and intent of these terms and phrases, the following sources should be considered: 1. The Oregon Department of Land Conservation and Development's "Guide to Wineries and Events in EFU Zones"dated, March 1, 2012; 2. The Webster's New World Dictionary; and 3. The Association of Oregon Counties (AOC) Farmland Activities Task Force Final Report and Recommendations, dated December 13, 2010. This report was the basis for SB 960 and is included in the State Legislative record for SB 960 and Deschutes County's record for the ordinance adopting DCC 18.16.042. 247-15-000001-LUP Page 17 Each of these sources is summarized in order. 1. DLCD's "Guide to Wineries and Events in EFU Zones" states: "Q: What does 'related to'and 'supportive of' agriculture mean in SB 960? What about 'incidental and subordinate?' A: We interpret 'related to' and 'supportive of" to mean that the proposed agri-tourism or other commercial event or activity is physically and/or economically logically connected to, and supports, an existing on-site farm operation. For example, 'related to'could mean that the proposed event involves a product that is produced on site that has a meaningful and significant relationship to the proposed event. 'Supportive of' could involve the generation of supplemental income to support a farm. 'incidental and subordinate' means that the event or activity is strictly secondary and ancillary to on-site farming in terms of income generated, area occupied, and off-site impacts." 2. Webster's New.World Dictionary defines: Related: "connected or associated, as by origin or kind" Supportive:"that gives support, help or approval" incidental: "happening as a result of in connection with something more important;secondary or minor" Subordinate: "inferior to or placed below another in rank, power, importance, etc.;secondary" 3. AOC Farmland Activities Task Force Final Reo rt and Recommendations Page 4. "The Task Force realizes these recommendations may not provide an opportunity to conduct activities and events on farmland which do not promote farm use. However, we believe it is a good basis for providing balance between the conservation of farmland and the need of farmers to use their land in beneficial yet non-traditional ways." Page 6. "The Farmland Activities Task Force developed a set of principles with the assistance of state agencies and other interested parties to guide its work. A list of issues was also compiled based upon the responses to the statewide survey referenced above and the comments and discussion of the Task Force. "Principles The FATF developed and approved the following principles: 1. Give preference to 'farm use'as defined in ORS 215.203(2) (a)on farmland. 2. Support economic activities that compliment farm use. 247-15-000001-LUP Page 18 • 3. Seek opportunities for better communication between those wishing to establish nontraditional farm uses and those who may be impacted by such activities. 4. Ensure compliance with public health, environmental health and safety requirement when establishing other uses on farm land. 5. Ensure activities associated with 'farm use'(f_a efficient operation of equipment and transport of products to market in a timely manner) are not impaired. 6. Assist counties with establishment of clear, transparent, and to the extent possible, consistent processes for consideration of traditional and nontraditional farm activities. 7. Identify'best practices'in the public process for consideration of nonfarm issues on farm land." In applying the "incidental and subordinate" standard in the aforementioned Brown and Crescent Moon decisions, Hearings Officer Green examined both the physical space for and income from the proposed commercial use. These decisions provide guidance for addressing this standard. There are three components to be addressed in determining whether the proposed weddings/events facility will be "lower in rank or importance or secondary to the farm use": (1) relative timing and duration of operation of the facility vis-a-vis farm use operations; (2) intensity of the facility use in terms of physical space; and (3) income from the proposed facility relative to gross income from the existing farm use on the subject property. a. Timing and Duration of Wedding Events The applicant states that the farm use on the property is conducted approximately 225 days per year. The total amount of time for the wedding or other events, including the day before and after for set up and take down, is 8% (18 days divided by 225) of the overall total amount of time for farm production each year. I find that because the weddings/events would occur only six times per year and for only 72 hours per wedding/event—i.e., 18 days per year—the weddings/events would be incidental and subordinate to the primary farm use on the property in terms of timing and duration_ b. Physical Space Required for Wedding Events The proposed wedding/event facility would include only approximately 4 acres of the 54-acre subject property, all of which is on non-farm use land. The applicant's burden of proof states that the area used for hay and nursery farming Is 36-38 acres. Using the smaller estimate of 36 acres, the wedding event facility comprises only 11% (36 acres divided by 4) of the total acreage used for farming. The Hearings Officer finds that the wedding event time periods and land area from a temporal and spatial standpoint are incidental and subordinate to the farm use on the property. c. Income from Wedding EventslCommercial Uses Compared to Farm Use Income Since the original burden of proof was submitted to support the application in January, 2015, the applicant has revised its calculations concerning both farm use income and projected wedding/event facility income several times. The day of the public hearing, the applicant submitted an amended application that included information concerning 2014 tree sales, current 247-15-000001-LUP Page 19 inventory of trees for sale, 2014 hay sales, a brochure from Cooper Custom Hay and a Google Earth map of the subject property. The Hearings Officer notes that the wedding events have been taking place since at least 2012 and vacation rental of the house have been taking place since 2011. There have been between 16-18 weddings for which the applicant has rented its property, There are 12 customer recommendations on 8 websites advertising the vacation rental use of the home on the subject property. The applicant did not present any evidence of prior revenue from these commercial events, but testified that rental income did not exceed"more than a few thousand dollars." The applicant stated he plans to charge $3500 per event for weddings, plus $250 cleaning fees, for a total of$22,500 annually. This is a flat-fee charge, notwithstanding the size of the wedding event. As set forth in an April 14, 2015 submittal, the wedding venue agreement requires the wedding party to be responsible for all catering, food, drink and food and drink service, and if alcohol is served, for providing OLCC-licensed servers. The Coopers do not provide any of those services, The wedding party is also required to provide an adequate supply of bottled water for the events. The Winston Ranch Property Owners Association questioned whether $3,500 per event is representative of the,market for such events, The Hearings Officer reviewed Exhibit F attached to a letter submitted by the WRPOA on March 31, 2015 concerning the operations and facilities charges for two other Central Oregon weddings events businesses. Considering the applicant's testimony and evidence in the record that the $3,500 is a flat fee that covers set up for 150 guests and use of the ranch, with no additional food, beverage or employee costs, the Hearings Officer finds that $3,500 is in line with "Package One," offered by Rock Springs Weddings at a cost of $4;000. I also note that the Rock Springs Weddings business offers overnight accommodations for an additional cost,similar to that proposed by the applicant here. The applicant did not present evidence concerning the rental rate for the home that will be charged. Online advertisements show that the nightly fee is at least $400, with a minimum three-night stay, and that wedding parties may be subject to additional fees/rates. If such use could be approved as part of the proposed weddings/events facility, it would produce an additional $7,200 in income annually.) As discussed in the findings below, DCC 18.16.042(7) directs that no agri-tourism or other commercial event or activity may begin before 7:00 a.m. or end after 10:00 p.m. This provision prohibits the continued use of the property after 10:00 p.m. for overnight accommodations proposed as part of the application. A condition of approval would be required to require operations to cease at 10:00 p.m., precluding overnight rentals. With respect to farm use revenue, the applicant submitted four pieces of documentary evidence and testimony. As noted, the applicant filed a 2013 IRS Schedule F schedule reporting hay profits for grain grown on all properties it owns, without a break-down of hay sales from the subject property. No other IRS tax filings were submitted for 2011, 2012 or 2014. The applicant did not submit any documentation from a CPA or accountant. The Hearings Officer notes that prior approvals of commercial uses on EFU-zoned properties have been supported by at least two years of income tax returns and/or other competent proof from licensed CPAs or accountants. 8 If overnight rental use of the property could be permitted, Hearings Officer finds that the applicant under- estimated the potential total commercial use income from the property, which may be up to$29,700. 247-15-000001-LUP Page 20 , r Although the original burden of proof stated the applicant made between $40,000 and $45,000 in farm sales of 1,000 tons of hay from the subject property, this figure was reduced to $16,310 from the sale of approximately 65 tons of hay in 2014. The WRPOA questioned whether the soils on the property and recent economic conditions would support the estimated revenue from hay sales. The applicant submitted a typewritten and handwritten list of 2014 hay sales from their Central Oregon operation (354 tons total). The lists show names of customers (where available), amount, price and barn from which the sales were made (e.g. main barn, my barn, Scott's barn, Peg's barn), The list is not broken out to identify the properties on which the hay was grown. None of the totals of hay sales from the four individually identified barns matches the $16, 310 the applicant alleges to have earned in 2014 from hay sales on the property. Adding the figures set forth on the list submitted by the applicant results in the following: Main barn—$24,509 My barn—$18,893 Peg's barn—$29,317 Scott's barn--$13,882 The applicant did not submit purchase orders, billings, receipts, bank deposits or tax returns to support its calculation of hay sales in 2014. Nonetheless, I find that the record supports a finding that $16,310 for sales of 85.25 tons of hay at a market rate of$250 per ton could have been made from the property in 2014. With respect to tree sales, the only evidence presented by the applicant is a handwritten ledger of Craigslist sales in 2014 and sales from two 2014 Spring Sale events, totaling $40,310. The ledger does not include any information regarding customers, purchase orders, dates of sales, or billing information, The applicant presented no evidence of bank deposits from the tree sales, and no tax returns filed with the IRS. The "Craigslist" sales are broken down on the ledger to identify the stock sold, number and pricing. However, the entries for"Spring Tree Sale 1st" and "Spring Sale 2"d" are identified merely with a single line entry of the revenue allegedly made ($21,775 and $12,230, respectively), without any identification of the number and types of trees sold, the prices for such trees, or the customers to whom the trees were allegedly sold. Together, these two sales are alleged to have brought in $34,005, Without more, the Hearings Officer finds the applicant's evidence of the Spring Sales not to be credible in light of all the evidence in the record, Moreover, the applicant did not present any evidence of tree sales in 2015, or tree sales in 2011, 2012 or 2013. As discussed in the findings above, substantial evidence in the record shows that sales of trees is incidental to the primary farm use, which is growing and harvesting hay. I find that substantial evidence in the record can only support a finding that a total of $22,615 ($16,310 in hay sales and $6,305 in tree sales) was made by the applicant in 2014 from farm use sales. With a prohibition on overnight rentals, commercial revenue is projected to be $22,500 annually.9 The Hearings Officer determines the applicant has not carried its burden of proving: (1) all trees are grown on site; or (2) all trees sold in 2014 were of trees grown on site. The proposed commercial operations comprise 49.8% of the total projected revenue from the property, combining established farm sales and commercial revenue, of$45,115. 9 If overnight rental is allowed, commercial revenue will be even higher. In such case,the proposed commercial operations($29,700)will comprise 56%of the total projected revenue from the property of $52,215. 247-15-000001-LUP Page 21 f The above calculations are based on limited income evidence, and there is no credible or reliable evidence in the record showing income trends.10 Therefore, as was the case in Cresent Moon, the Hearings Officer must determine the appropriate maximum percentage of gross farm income represented by wedding/event income in order to assure the latter remains "incidental and subordinate" to the former and does not become the primary source of appellant's income. The County Hearings Officer, in the decision on Application No. CU-14.7, a commercial activity in conjunction with farm use, determined that the sales of items not directly tied to the farm use on the property (in this case the alpaca boutique items) could not exceed 40 percent of the overall farm income on the property. In the aforementioned Downs Limited Use Permit (LUP- 12) decision, the board found the Downs' proposed weddings and commercial events would be incidental and subordinate to their existing farm use in part because: "The gross income of the farm use (grass hay)is$18,000 to$22,500 per year and the applicant's charge for each event ($2,000) times the 6 events ($12,000) is less than 50% (35 to 40%) of the overall gross farm income." (Bold emphasis added.) In Brown, Hearings Officer Green stated: 'Although appellant's evidence shows his projected wedding/event income would not.exceed 34 percent of his previous gross farm income, I find that in light of the board's Downs decision, a maximum of 40 percent for wedding/event income likely would be approved by the board. Therefore,;i find appellant will be required as a condition of approval to assure gross income from the six annual weddings/events does not exceed 40 percent of appellant's gross farm income, including the boarding, training and sale of horses and the sale of hay raised on the subject property in addition, I find appellant will be required as a condition of approval to provide to the Planning Division written documentation of compliance with the 40-percent income limitation by submitting by January 314 of each year annual income records for the previous year showing appellant's gross annual income for weddings/events and from horse boarding, training and sale and hay sales" Based on the Hearing Officer Green's decision in Brown, and the Board's decision in Downs, the calculation that the proposed commercial use will comprise 49.8% of the subject property's annual revenue is not sufficiently low to support a conclusion that the proposed weddings and commercial events would be incidental and subordinate to the primary farm use on the subject property. I find that the primary use of the property over at least the past three years since the property has been used for wedding venues and vacation rentalsis not"farm use:" The record shows that income received and projected from these commercial activities is more than that received from farming, and that which can be projected to be earned in the future.11 c. The types and locations of all permanent and temporary structures, access and egress, parking facilities, and 10 Wedding and commercial rental operations have been going on since at least 2012, and farming operations have been ongoing for years. The applicant could have but chose not to set forth competent roof comparing revenue from farming operations vs. commercial operations. 1 The Hearings Officer also notes that, to support applications for commercial uses in an EFU zone, three years of financial records are recommended so that findings may be made concerning income trends and establishment of parameters. 247-15-000001-LUP Page 22 f` y sanitation and solid waste to be used in connection with the agri-tourism or other commercial events or activities. FINDINGS: 1. Permanent and Temporary Structures. As discussed above, the applicant proposes to develop a commercial event/activity facility on approximately four acres on Tax Lot 314. All wedding activities and events will take place in open areas, and around the pond, and lawn areas surrounding the existing dwelling, in approximately a 4 acre space. Access to the site is via a %4 mile gravel driveway with egress from the Old Bend Redmond Highway. The only permanent structure proposed to be included in the commercial event/activity facility is the dwelling. Applicant acknowledges that he will be required to provide temporary structures including tents and portable toilets for weddings and other events. The Deschutes County Building Division provided comments on the applicant's proposal on January 13, 2015: The Deschutes County Building Safety Division's code required access, egress, setbacks, fire and life safety, firefighting water supplies, etc. will be specifically addressed during the plan review process for any proposed structures and occupancies. All Building Code required items will be addressed when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. No new permanent structures are proposed by the applicant. All Building Safety Division Code requirements could be satisfied by conditions of approval. The Bend Fire Department provided comments on the applicant's proposal on January 28, 2015, including, among other things: 1) New and existing buildings shall have approved address numbers, building numbers or approved building identification placed in a position that is plainly legible and visible from the street or road fronting the property. These numbers shall be Arabic numbers or alphabetical letters. Numbers shall be a minimum 4 inches high with a minimum stroke width of 0.5 inch. 2) Where access is by means of a private road and the building cannot be viewed from the public way, a monument, pole or other sign or means shall be used to identify the structure. Address numbers shall be visible under low light conditions and evening hours. Provide illumination to address numbers to provide visibility under all conditions. Address signs are available through the Deschutes Rural Fire Protection District #2. An address sign application can be obtained from the City of Bend Fire Department website or by calling 541-388- 6309 during normal business hours 3) Tents and Other Membrane Structures shall comply with Chapter 31 of the 2014 Oregon Fire Code. Approval is required for tents in excess of 400 square feet. Tents shall not be erected for a period of more than 180 days within a 12-month period on a single premises. 'Provide a site plan to the Bend Fire Department illustrating the location of all tents, structures and facilities for the 247-15-000001-LUP Page 23 special event(s). Contact the Bend Fire Department at 541-322-309 to schedule an inspection prior to the event opening to the public. 4) An approved water supply capable of supplying the required fire flow for fire protection shall be provided to premises upon which facilities, buildings or portions of buildings are hereafter constructed or moved into or within the jurisdiction. The Hearings Officer finds that the proposed site for the event facility is large enough to accommodate such temporary structures. All of the above-listed structural requirements could be satisfied by conditions of approval, specifically including the requirement to obtain Bend Fire Department site plan approval for placement of all tents, structures and facilities prior to each event. 2. Sanitation and Solid Waste. The applicant proposes to,:provide two portable chemical toilets per 150 people and 1 stand-alone hand wash station. Solid waste will be disposed of at the County landfill. Conditions of approval could be required to ensure compliance. The Deschutes County Environmental Health Department commented on the applicant's proposal on January 28, 2015, stating that the following.should,be required: 1) If food service is provided at events, applicant must provide our dept with a detailed narrative of who is making the food, where it will be prepared, where is the food from, menu, etc. A Deschutes County EH Licensed Foodservice operator must provide the food or the property owners Mat have a Deschutes County EH licensed facility on-site. 2) If property is served by a private wat e r well, the owners sha ll be to the well tested and inspected per.Oregon Drinking Water Program requirements 3) If the events are very large and for a long duration, att Outdoor Mass Gathering permit may be required All of the above-listed health and sanitation requirements could be satisfied by conditions of approval. The Winston Ranch POA expressed concerns regarding the potential of the wedding party or guests consuming water from the domestic well on,the,property. particularly given the kitchen and bathroom in the existing residence on-site that could,be used Such concerns could be addressed via a condition of approval as set forth in requirement (2) above concerning well testing and inspection. 3. Ac cess and Egress. Traffic generated by the p ro po sedi weddings/events will enter the subject property via an existing driveway off the Old Bend:Redmond Highway directly onto Tax Lot 314. The Bend Redmond Highway is a County Road (urban arterial,classification with an ADT of 2621), with a paved width of 32 feet. The applicant stated that the proposed wedding events will generate approximately 50 to 120 vehicles ,for all participants/guests, including vehicles for wedding professionals (e.g. photographers, catering, bartending, etc.). The original proposal anticipated a maximum of 250 people in attendance at each event. Subsequently, the applicant agreed to a cap of 150 people, not including service staff. The record indicates there are three access points to the property from the Old Bend Redmond Highway-- two driveways that could serve the commercial event parking area on Tax Lot 314, and a private road, Simon Road, that serves as access to Tax Lot 301. Simon Road is owned and maintained by the Winston Ranch POA. 247-15-000001-LUP Page 24 Access to Tax Lot 314, which is the location of the proposed wedding/events facility is solely via the existing driveway shown in photographs attached as Exhibit 2 to the applicant's April 14, 2015 submittal. The second access driveway to the property, farther west on Old Bend Redmond Highway, was approved by the County in the CUP application. Exhibit 3 to the applicant's April 14, 2015 letter is a photo of the old driveway approved. The applicant does not intend to use this driveway access. Vehicles will enter the subject property from the North and South on the Old Bend Redmond Highway. The applicant stated, and will be required as a condition of approval, to post signs during events notifying"Event in Progress." A licensed traffic control person will be on site at all times. I find that wedding/event related traffic will utilize paved public roads, a gravel driveway, and grass surfaces to access the wedding/event facility, none of which would produce significant dust. The Winston Ranch POA and several individual property owners expressed concern regarding potential use of the private Simon Road as an access to the subject property based on safety, wear and tear, and road maintenance costs. The applicant stated that they will not allow use of Simon Road for property access for the events. The Hearings Officer finds that these concerns could be addressed with a condition of approval prohibiting use of Simon Road and requiring the installation of a locking gate on all Simon Road points of access, to be locked during the duration of any wedding or special event_ George Kolb, County Engineer with the Deschutes County Road Department commented on the applicant's proposal on January 15, 2015, stating: 1) There will be no right-of-way dedications or road improvements, required on this application. 2) The applicant's approach onto Old Bend-Redmond Highway is grave!and a paved apron extending 25 feet from the edge of Old Bend-Redmond Highway is recommended to allow the event participants to access the road'Without tearing up the edge of pavement or the surface of the gravel driveway. 3) An access permit for this parcel onto Old Bend-Redmond Highway was granted per Permit No. A-87133 in 1987. The site (sic) distance at the driveway,is minimal in both directions so the applicant will want to have a traffic control plan in place for traffic entering and exiting an event. The County Road Department concerns could be satisfied by requiring conditions of approval requiring Installation of a properly permitted 25-foot long apron extending from the edge of the Old Bend-Redmond Highway onto the access driveway, and requiring the applicant to provide one traffic control person to direct traffic entering and exiting the Old Bend-Redmond Highway, due to sight distance at the driveway entrance. Such conditions of approval will also address the Winston Ranch POA's concerns regarding safety of access. The Hearing Examiner takes note of Exhibits 6 and 7 to the applicant's April 21, 2015 letter showing visibility to the northwest and southeast, respectively, along Old Bend-Redmond Highway. The Deschutes County Transportation Planner, Peter Russell provided comments on the application, stating: 247-15-000001-LUP Page 25 I have reviewed the transmittal materials for 247-15-000001-L UP to develop Type 2 commercial events on approximately 35 acres in the Exclusive Farm Use (EFU) zone at 64655 Old Bend-Redmond Highway, aka 16-12-32, Tax Lot 314. Deschutes County Code (DCC) 18.16.310(C)(3)(a) states no traffic analysis is required for any use that will generate less than 50 new weekday trips. The applicant states the proposed use will only occur six times between May and September and most likely on weekends; therefore the use does not meet the minimum trip threshold and no further traffic analysis is needed. Board Resolution 2013-020 sets Transportation System Development charges (SDC) for the County;the Type 2 commercial events are not a use subject to the County's SDC. The Hearings Officer concurs with these determinations. No traffic analysis is required and the use is not subject to the County's SDC. The Bend Fire Department further commented on the proposal concerning Fire Apparatus Access Roads: • Approved fire apparatus access roads shall be provided for every-facility, building or portion of building hereafter constructed ormoved into or within the jurisdiction. The fire apparatus access road shall comply with the requirements of this section and shall extend to within 150 feet of all portions of the facility and all portions of the exterior walls of the first story of the building as measured by an approved route around the exterior of the building or facility. 2014•OFC 503.1.1 • Fire apparatus access roads shall have an unobstructed width of not less than 20 feet, exclusive of shoulders, except for approved security gates in accordance with Section 503.6, and an unobstructed vertical clearance of not less than 13 feet 6 inches. Where a fire hydrant is located on a fire apparatus road, the minimum width shall be 26 feet, exclusive of shoulders. Traffic;calming along a fire apparatus road shall be approved by the fire code official. Approved signs or other approved notices or markings that include the words NO PARKINGFIRE,LANE shall be provided for fire apparatus roads to prohibit parking on both sides of fire lanes 20 to26 feet wide and on one side of fire lanes more than 26 feet to 32 feet wide. 2014 OFC 503.2.1, D103.1, 503.4.1, 503.3 • Fire apparatus access roads shall be designed and maintained to support the imposed loads of fire apparatus (60,000 pounds GVW) and shall be surfaced (asphalt, concrete or other approved driving surface) as to provide all weather driving capabilities. Inside and outside turning radius shall be approved by the fire department. All dead-end turnarounds shall be of an approved design. Bridges and elevated surfaces shall be constructed in accordance with AASHTO HB-17. The maximum fire grade of fire apparatus access roads shall not exceed 10 percent. Fire apparatus access road gates with electric gate operators shall be listed in accordance with UL 325. Gates intended for automatic operation shall be designed, constructed and installed to comply with the requirements of ASTM F 2200. A Knox Key Switch shall be installed at all electronic gates. 2014 OFC D102.1, 503.2.4 In an April 14, 2015 submittal, the applicant confirmed that they will prohibit any roadside parking at any portion of either the main access road or the alternative fire access route. 247-15-000001-LUP Page 26 Opponents' concerns may be addressed by a condition of approval prohibiting parking on both sides of the driveway and requiring the posting of signs imposing the restriction. Under DCC 18.16.042(C)(11), the driveway must comply with fire code requirements, as correctly stated by the Bend Fire Department. The fire apparatus access road requirements are to protect the health, safety and welfare of occupants and guests of the subject property in the " event of a fire or other emergency. Without a minimum width requirement, emergency vehicles may have difficulty accessing the property, putting lives in potential danger. There is competing evidence in the record concerning the width of the driveway. The applicant submitted evidence that the driveway is approximately 30 feet wide (recently widened by Paul Cooper) and is graded and surfaced with compacted gravel to accommodate loads of at least 60,000 pounds GVW. See Exhibits 1 and 2 to the applicant's April 21, 2015 letter, which are photographs of the Coopers' driveway facing west (toward the event site, away from the Old Bend-Redmond Highway), showing a graded width of more than twenty feet. The applicant stated that the driveway currently supports traffic for heavy farm equipment and hay trucks and is "more than adequate for the limited wedding events." There is no "finding" in the record by the County that the access road meets all County standards. The Winston Ranch POA correctly points out that a condition of approval requiring improvement of the driveway is not permissible under ORS 215.283(6)(a) ("county may not approve an alteration to the land in connection with agri-tourism or other commercial event or activity authorized under subsection (4) of this section, including, but not limited to, grading, filling or paving"). The Winston Ranch POA submitted evidence that the existing driveway is 18 feet wide.at each of two entry gates (Exhibits A and B to WRPOA April 21, 2015 letter) and argued that Exhibit 2, page 2 of 2, to the applicant's April 21, 2015 letter shows the access road is not 20-feet wide where it divides and loops around the proposed grass parking' area. This photograph is taken at an angle where the actual width of the road cannot be ascertained. The POA did not submit evidence of its actual measurement, so I cannot find on this record that such assertion is supported. Moreover, the width of access gates does not establish the width of the road. The photographs submitted by the POA show a road wider than the gates themselves, although no measurements were provided. Approved security gates are an allowable exception to the 20-foot road width, provided they include a knox key system. 2014 OFC 503.2.1, 1)103.1, D102.1, 503.2. The POA also submitted evidence that the access road is only 12 feet wide as shown in Exhibit C to its April 21, 2015 submittal, a GoogleEarth image. l agree with the POA's assertion that the entire length of the driveway must be at least 20 feet wide, with a prohibition on parking on both sides. 2014 OFC 503.2.1, D103.1, 503.4.1, 503.3. However, no actual measurements of the width of the driveway at the canal crossing are included in the record. Although it is apparent the road narrows in this location, the applicant submitted evidence that shows the width of the driveway to be at least 30 feet. Accordingly, the narrower part of the driveway over the canal could be 20 feet. I find that a condition of approval could be imposed, requiring independent confirmation that the driveway is 20 feet wide at all locations extending from the Old Bend Redmond Highway to the wedding/events facility site prior to any scheduled wedding/events and prohibiting use of any driveway that fails to meet such standard. 4. Parking. The applicant originally proposed to provide parking for wedding/events attendees in an existing gravel parking lot, as shown on an aerial photograph submitted with his burden of 247-15-000001-LUP Page 27 R Y - , proof. Staff determined, and I agree, that the proposed parking area is within a required 100- foot side yard setback and thus cannot be permitted. On March 31, 2015, the applicant amended his application and proposed to confine parking to an area farther west from the property line on Tax Lot 314, northwest of and on the other side of the barn, outside the 100-foot setback from the property line. An updated parking map of the parking areas being proposed for the events is Exhibit 4 to the applicant's April 14, 2015 letter. will available on either mowed green lawn or bare dirt areas along the internal side Parking ill be av g 9 of the driveway. Photos of the entries to the overflow parking areas from the driveway indicated on Exhibit 4 are shown on Exhibit 5 to the April 14, 2015 letter. Photos of the primary parking areas between the barn and other outbuildings are included as Exhibit 6 to such letter. For reference a photograph facing west from the Coopers' driveway area onto one of their hayfields is attached as Exhibit 7 to the April 14,2015 letter. The applicant also submitted Exhibit 3 to its April 21, 2015,letter showing the proposed parking area on the, lawn area directly west of the Coopers'.driveway that is kept mowed and irrigated. This area is not part of the Coopers' hay pasture, which lies to the west, as evidenced by Exhibits 4 and 5 to the April 21, 2015 letter. The Hearing Examiner finds that no irrigated farm land is being used for parking and that no land will be taken out of hay production as a result. The Winston Ranch POA argues that the amendment of the application with respect to the parking areas is a "modification of application" as defined by DCC 22.04.020 that requires the submission of a new land use application to modify the application under DCC 22.20.055(B). I disagree with this contention because the change in the proposed parking areas is not a "modification of application" because it does not require the application of new criteria or require findings of fact to be changed, ;particularly given my finding that no irrigated farm land will be used for parking and no land will be taken out of hay production as-a result. The applicant's burden of proof stated an estimate of 50-120 vehicles for an event of up to 250 persons. The number of guests has.been capped at a reduced150, which would result in a maximum of 72 vehicles per event, using the same calculations as in the original proposal. The applicant did not state whether the number of vehicles also includes those associated with wedding .personnel, which are estimated to be no more than 20 vehicles. Accordingly, I am including an additional 20 vehicles in the calculations, with 140 total vehicles for events with 250 guests and 92 vehicles for events with 150 guests. The Hearings Officer finds that the new proposed parking areas appear to provide room for parking of more vehicles than would have been accommodated in the original parking lot, at the original estimate of up to 120 vehicles. Based on a review of photographic evidence and aerial photographs provided by the applicant, the Hearings Officer finds these areas are large enough to accommodate at least 100 vehicles expected to come to the wedding/event facility. No improvements are required for the parking areas to be made suitable for parking. No parking will occur on irrigated farm land, which could be confirmed with imposition of a condition of approval. The Winston Ranch POA believes it is "highly likely" patrons will park in the lot that is located within 100 feet of the Farmer property. The POA further has concerns that parking will occur on the access road, impeding fire and emergency vehicles. The Hearings Officer finds that these concerns may be addressed by the inclusion of conditions of approval prohibiting the same. 247-15-000001-LUP Page 28 r , Finally, the POA is concerned about the potential of fire combustion, potentially resulting from a combination of engine sparks, dry conditions and tall grass in the parking areas. The evidence shows that parking will either be on bare dirt, or watered grass. Accordingly, this concern is without merit. 3. A traffic management plan that: a. Identifies the projected number of vehicles and any anticipated use of public roads; b. Provides an assurance that one traffic control person shall be provided for each 250 persons expected or reasonably expected to be in attendance at any time during the agri- tourism and other commercial event or activity. The traffic control personnel shall be certified by the State of Oregon and shall comply with the current edition of the Manual of Uniform Traffic Control Devices. FINDING: The applicant addressed these criteria on page 3 of the burden of proof as follows; "The proposed wedding events under this limited use permit will generate approximately 50 to 120 vehicle usage for all participants/guests at an average sized wedding or event. Vehicles will enter the subject property from the North and South on Old Bend Redmond Highway with good visibility from both directions. When we have an event with 25 or more vehicles we will post signs that say an event is in progress. We will have a licensed traffic control person on sight(sic) at all tithes. The applicant has adequately described the anticipated number of vehicles for the event site. Although the applicant originally estimated up to 250 persons in attendance at each wedding event, he has now agreed to a 150 guest limit, that does not include persons working at the event that also drive vehicles. Consistent with Hearing Officer Green's decision in the Brown application, a licensed traffic control person is not required for events with less than 250 persons total on site, however, the applicant has stated he will require at least one traffic control person to be on-site during the wedding or other event, and will post"event in progress" signage at the entrance to the site. c. Demonstrates that the parcel, lot or tract has direct access such that the lot, parcel or tract on which commercial events will occur: i. Fronts on a public road; or ii. Is accessed by an access easement or private road, and all underlying property owners and property owners taking access between the subject property and the public road consent in writing to the use of the road for agri-tourism and other commercial events or activities at the time of initial application. FINDING: The subject property has direct frontage on the Old Bend-Redmond Highway, which is a public road. The Hearings Officer determines that this criterion is met because the property has frontage and direct access to this road. 247-15-000001-LUP Page 29 4. Inspection of Event Premises Authorization. The applicant shall provide in writing a consent to allow law enforcement, public health, and fire control officers and code enforcement staff to come upon the premises for which the Limited Use Permit has been granted for the purposes of inspection and enforcement of the terms and conditions of the permit and DCC Chapter 18.16 Exclusive Farm Use Zone and DCC Chapter 8.08 Noise Control, and any other applicable laws or ordinances. FINDING: The applicant states the following to address this criterion: "We hereby give the County consent to enter the property during all events for the above stated purposes. Further, if required, the applicants are willing to sign any County consent document for the limited use permit." The Hearings Officer finds this criterion may be met with a condition of approval to execute and provide to the county a consent document acceptable to the county as required by this subsection. C. Approval Criteria. 2. Type 2. Up to six (6) agri-tourism and other commercial events or activities In a calendar year on a tract may be approved by a limited use permit that is personal to the applicant and is not transferred by, or transferred with, a conveyance of the tract, if in compliance with; a. Minimum lot or parcel size: 10 acres. FINDING: The applicant is,proposing up to six commercial events or activities in a calendar year on.a tract(tax lots.314/301;form a tract): Any approval granted is personal to the applicant is not transferred by,.or transferred with, any sale of the property. As indicated in foregoing findings,the subject property is approximately 54 acres. This criterion is met. b. Agri-tourism event may not, Individually, exceed a duration of 72 consecutive hours, excluding set-up and take down of all temporary structures and facilities. The limitation on the hours of operations is included within the duration of 72 consecutive hours. FINDING: The Hearings Officer determines this criterion does not apply, as the applicant has applied for commercial events, rather than agri-tourism events. c. Commercial events or activities may not, individually, exceed a duration of 30 consecutive hours, excluding set-up and take down of all temporary structures and facilities. The limitation on the hours of operations Is Included within the duration of 30 consecutive hours. FINDING: The applicant states in the burden of proof that: "No event will exceed 30 consecutive hours, excluding set up and take down." The Hearings Officer finds that this criterion could be met with the imposition of a condition of approval. 247-15-000001-LUP Page 30 r r d. Must be incidental and subordinate to existing farm use of the tract, and shall be related to and supportive of agriculture. FINDING: The findings for this criterion are addressed above. The applicant has not met its burden of proving that the actual farm income from the subject property is sufficiently incidental or subordinate to existing farm use of the tract. Use of hay bales as seating and tables, and photographic backdrop is related to and supportive of agriculture as I have found in the findings above. e. Set-up and take down of all temporary structures and facilities shall occur up to one business day prior to the agri- tourism and other commercial events or activities and one business day after the agri-tourism and other commercial events between 7:00 a.m.and 10:00 p.m. FINDING: The applicant states in the burden of proof that: "Set up and take down for the events will occur one day before and one day after the weddings within the required time restrictions." The Hearings Officer finds that this criterion is met by the applicant's proposal. f. May not require that a new permanent structure be built, used or occupied In connection with the agri-tourism or other commercial events or activities. FINDING: The applicant is not proposing any new permanent structures and the Planning Division is not requiring that any new permanent structure be built, used or occupied in connection with the commercial events. This criterion is met. g. May not, in combination with other agri-tourism or other commercial events or activities authorized in the area, materially alter the stability of the land use pattern of the area. FINDING: The record indicates there are no other authorized agri-tourism or commercial events or activities proposed or occurring in the area. The proposed event site is for up to six events or weddings conducted over the calendar year. The wedding events will be temporary in nature and practice. The existing land use pattern in the surrounding area consists primarily of single-family dwellings with some farm use occurring, as well as some dry land. The Staff Report states, and the Hearings Officer agrees, that in light of the temporary nature of the proposed weddings/events and the relatively low intensity of the farm use in the surrounding area, applicant's proposal will have little if any effect on the stability of the land use pattern in the area, and certainly will not "materially alter" it. The farm use in the area will continue as currently conducted, which is mainly grass hay and livestock raising and grazing (pasture). Therefore, I find the applicant's proposal satisfies this criterion. h. Must comply with ORS 215.296. FINDING: Oregon Revised Statutes 215.296, Standards for approval of certain uses in exclusive farm use zones, has two criteria which apply to the proposed use. They are: 247-15-000001 4.UP Page 31 (1) A use allowed under ORS 215.213(2) or 215.283(2) may be approved only where the local governing body or its designee finds that the use will not: b. Force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use:or c. Significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use. FINDING: The record indicates there are no forest practices in the area surrounding the subject property, and none of the properties in the area surrounding the subject property are in forest use. There are several properties in farm use, including properties adjacent to the subject property to the north and west. The properties to the west are smaller acreage hobby farms (i.e., farm operations subsidized by off-farm income). The property to the south has a small irrigated area. The, main farm use in the surrounding area appears to be grass hay, with livestock raising and grazing occurring,on lands devoted to pasture. The POA alleges that the study area is not sufficiently defined and that there is not specific information about farm practices occurring on surrounding lands. I find that, under Hood River Valley Parks and Recreation District, Or LUBA (LUBA No. 2012-073, 5/14/13) no specific definition of the study area is required in this case: The local government is not required to define the precise extent or outer boundaries of the study area, if the surrounding agricultural area is homogenous, and the record reflects that there are no significant impacts to farm practices on adjacent or more proximate parcels. (citing Sisters Forest Planning Committee v. Deschutes County, 48 Or LUBA 78, 84 (2004)). These circumstances are present here;accordingly neither the County nor the applicant was required to define the limits of a study area. In addition, compared to the description of farm practices at issue in Brown v. Union County, 32 Or LUBA 168, 174(1996)and Oregon Natural Desert Association v. Grant County,42 Or LUBA 9, 2002), the Staff Report adequately described the existing farm uses in the surrounding areas and considered whether and to what extent they could be impacted by six commercial weddings/events annually. The Staff Report states, and I agree that conducting up to six (6) events/weddings on six (6) calendar days for up to 12 hours per event on the applicant's property in a year will not force a significant change in these farm practices, or significantly increase the cost of accepted farm practices. Existing farm uses will not be impacted by the events/wedding and the events will not have any adverse impact on the hay operations, livestock or grazing activities. This criterion is met. i. Limited Use Permits approved under this section expire two years from the date of approval. j. Limited Permits may be renewed for an additional two years subject to: !. An application for renewal;and ii. Demonstration of compliance with conditions that apply to the limited use permit and applicable provisions in this section, DCC Chapter 18.16.042. FINDING: If the Limited Use Permit was approved, these criteria could be met with a condition of approval stating: (1) the approval would be valid for two years from the date of approval; (2) the date of approval would be after the review process is completed, including all appeals; and 247-15-000001-LUP Page 32 (3) the possibility for renewal exists, based on submittal of an application, and findings made demonstrating compliance with the conditions of approval as well as the then-current Deschutes County Code and State law. 4. The area in which the agri-tourism or other commercial events or activities are located shall be set back at least 100 feet from the property line. FINDING: For the reasons discussed in findings above, the proposed new parking areas are outside the 100-foot property line setback. This criterion is met. 5. Notification of agri-tourism and other commercial events or activities. a. The property owner shall submit in writing the list of calendar days scheduled for all agri-tourism and other commercial events or activities by April 1 of the subject calendar year or within 30 days of new or renewed limited use permits, if after April 1, to Deschutes County's Community Development Department and Sheriff's Office, and all property owners within 500 feet of the subject property. b. The list of calendar dates for all agri-tourism, commercial events activities maybe amended by submitting the amended list to the same entities at least 72 hours prior to any date change. c. If such notice is not provided, the property owner shall provide notice by Registered Mail to the same list above at least 10 days prior to each agri-tourism and other commercial event or activity. d. The notification shall include a contact person or persons for each agri-tourism and other commercial event or activity who shall easily be accessible and who shall remain on site at all times,including the person(s) contact information. FINDING: These criteria could be met with conditions of approval requiring compliance with each of these requirements. 6. Sanitation facilities shall include, at a minimum, portable restroom facilities and stand-alone hand washing stations. FINDING: The applicant is proposing to utilize temporary portable restroom facilities for the property, with two restrooms and one hand washing station per 150 people. This criterion could be met with a condition of approval requiring such facilities be maintained for the approved use and be subject to inspection upgrading if required by the Environmental Soils Division, 7. Hours of Operation. No agri-tourism and other commercial event or activity may begin before 7:00 a.m. or end after 10:00 p.m. FINDING: The applicant states that all events will occur and end within the specified hours. Use of the existing house on-site for overnight accommodations by the wedding party or guests 247-15-000001-LUP Page 33 P , may not be approved as part of the proposal, given this restriction on hours of operation. This criterion could be met with a condition of approval requiring compliance. 8. Overnight camping is not allowed. FINDING: This criterion could be met with a condition of approval that no overnight camping will be allowed. 9. Noise Control a. All noise, including the use of a sound producing device such as but not limited to, loud speakers and public address systems, musical instruments that are amplified or unamplified, shall be in compliance with applicable state regulations. b. A standard sound level meter or equivalent, in good condition, that provides a weighted sound pressure level measured by the use of a metering characteristic with an "A" frequency weighting network and reported as dBA shall be available on-site at all times during agri-tourism and other commercial events or activities. FINDING; The applicant states that all noise and sound associated with these events will be monitored with a required meter and music turned off by 9:00 p.m. Given the concern with noise ,emanating, from the site, a 9;00 p.m. cut off for music is included as a condition of approval. The Hearings Officer finds this subsection imposes two requirements for the applicant's proposed weddings/commercial events: ;all, noise, whether or not amplified, must be in compliance with applicable state regulations—presumably regulations of the Department of Environmental Quality(DEQ); and • a sound level meter with the described capabilities must be available on the wedding/event site at all times during weddings/events in order to assure compliance with state regulations. However, this subsection does not establish an acceptable noise level for commercial events and activities, in contrast to the standards for outdoor mass gatherings in Section 8.16.290(C) of the County Code which prohibits noise that "interferes" with dwellings and other nearby human habitations, and provides in relevant part: A sound level in excess of 70 decibels prior to 10:00 p.m. and in excess of 50 decibels prior to 10:00 p.m. (as measured upon the A scale of a standard sound level meter on affected property)shall constitute interference. The POA and several individual property Owners in the vicinity expressed concern regarding noise levels associated with weddings/events, and in particular objected to loud amplified sound. The applicant's burden of proof states he intends to monitor all noise and sound associated with weddings/events with a sound level meter, and will use such monitoring to assure that noise from weddings/events will not exceed applicable decibel levels established by DEQ. 247-15-000001-LUP Page 34 The Hearings Officer notes that under DEQ's administrative rules — i.e., Oregon Administrative Rules (OAR) 340-035-0035—sounds that are not electronically amplified generally are exempt from DEQ's noise regulations. However, amplified sound must satisfy DEQ's regulations and must not exceed maximum allowed decibel levels above ambient noise levels. I am aware DEQ's noise regulations are detailed and complex, and that measuring and determining compliance therewith requires a level of expertise generally beyond the capability of property owners. For that reason, the following requirements would have to be required as a condition of approval the applicant could have amplified sound for the weddings/events: • retain a licensed, professional acoustic engineer to develop a maximum allowable A- weighted sound levels in decibels (dBA) at all property lines of the subject property that will comply with applicable DEQ noise regulations as measured at the property lines; • provide to the Planning Division before commencing any wedding/event on the subject property a written report from the acoustic engineer that establishes baseline "ambient statistical noise levels" and maximum allowable increases in noise levels; and • assure that all applicable noise limitations are maintained during weddings/events by a qualified and trained technician, the monitoring of which must be conducted as specified by the Sound Measurement Procedures Manual, NPCS-1 These conditions of approval would address the stated concerns of the Opponents concerning noise. However, I disagree with the Winston Ranch POA that a noise study and monitoring plan is subject to the County's land use approval process. On the other hand, I agree that the vague "reasonable level" of noise referenced in the sample rental agreement is insufficient. The Hearings Officer finds that with imposition of this condition of approval appellant's proposal could satisfy this criterion. 10. Transportation Management. a. Roadways, driveway aprons, driveways and parking surfaces shall be surfaces that prevent dust, and may include paving, gravel, cinders, or bark/wood chips. b. Driveways extending from paved roads shall have a paved apron, requiring review and approval by the County Road Department. c. The parcel, lot or tract has direct access as defined in DCC Chapter 18.16.042(B)(3)(c). d. Adequate traffic control must be provided by the property owner to address the following: is There shall be one traffic control person for each 250 persons expected or reasonably expected to be In attendance at any time. li. All traffic control personnel shall be certified by the State of Oregon and shall comply with the current edition of the Manual of Uniform Traffic Control Devices. FINDING: The subject property has direct access to the Old Bend-Redmond Highway, which is a paved County road. This will require a paved driveway apron under"b" above. The driveway into the site is a gravel surface, and the parking area near the hay barn and storage building is also gravel. The gravel surfaces will prevent dust from becoming a problem. The requirements for adequate traffic control under d above could be met with conditions of approval. 247-15-000001-L11P Page 35 wok 11. Health and Safety Compliance e. All permanent and temporary structures and facilities are subject to fire, health and life safety requirements, and shall comply with all requirements of the Deschutes County Building Safety Division and the Environmental Soils Division and any other applicable federal, state and local laws. f. Compliance with the requirements of the Deschutes County Building Safety Division shall include meeting all building occupancy classification requirements of the State of Oregon adopted building code. FINDING: The structures on the site, including any proposed tent(s), if used for the anticipated events, must meet all fire, health and life safety requirements. This criterion is met with a condition of approval that all permanent and temporary structures and facilities comply with all State of Oregon adopted building code requirements and all Environmental Soils Division requirements, as well as any Bend Fire Department standards. Opponents expressed fire safety concerns with the use of hay bales for seating or tables and the danger resulting from smoking. These concerns could be addressed with a condition of approval prohibiting smoking at all events, in all areas, including parking, with signs posted to notify guests and any other persons in attendance of such restrictions. Opponents also stated concern with the safety of the use of hay bales for seating and/or tables. Absent evidence showing a basis for the alleged concerns, I cannot condition or prohibit such use on the basis of speculation, Allegations concerning pollution resulting from cars are similarly vague and unsupported, and thus are not a basis for denial or imposition of a condition of approval. The question of whether where would be adequate supervision during events was raised at the hearing and in post-hearing submittals with respect to safety concerns. The opponents' concerns in this regard could be addressed with a condition of approval that requires an owner or representative to be on-site at all times during each of the weddings/events. Although not specifically a health and safety issue, several neighbors alleged potential impacts to property values should be considered as a basis for denying the application. Such allegations have not been established with competent proof, nor are such impacts a basis for me to deny or condition the application under the County Code standards. Finally, some neighbors expressed concern that approval of the application will 'set a precedent" for further applications that will erode away farm use in EFU zones. The Hearings Officer notes that each individual land use application is evaluated on its own merits under applicable state law and County Code provisions. Approval of one application does not "open the door" to approval of a different application. Only those applications that met each of the specified legal requirements may be approved. 12. The maximum number of people shall not exceed 500 per calendar day. FINDING: The applicant states that the maximum number of guests in attendance will be 150, plus approximately 20 service persons. This criterion could be met with a condition of approval 247-15-000001-LUP Page 36 that limits the total people on site for any particular wedding or event to no more than 200 people, including any catering and other professional services (e.g. photography, florists, Q.J., etc.). 13. Agri-Tourism and other Commercial Events or Activities shall not be allowed: g. Within the County adopted big game winter ranges during the months of December through March. h. Within the County adopted big game migration corridors during the month of April and during the months of October and November. i. Within the County adopted sensitive bird and mammal habitat areas as defined In DCC 18.90.020, unless a site has had no nesting attempt or the nest has failed, as determined by a professional wildlife biologist in May of the calendar year in which the application is approved, unless a site has had no nesting attempt or the nest has failed which could be determined in May by a professional wildlife biologist. FINDING: The Hearings Officer finds appellants proposal satisfies this criterion because the subject property is not located within any big game winter range, big game migration corridor, or sensitive bird and mammal habitat area.This criterion is met. 3. Section 18.18.043. Single Permit A. The maximum number of agri-tourism and other commercial events or activities on a lot,parcel or tract may not exceed the total number of commercial events allowed by any individual land use approval, including a winery authorized under DCC 18.16.038(B), and events, outdoor mass gatherings or extended outdoor mass gatherings authorized under DCC Chapter 8.16. B. The following permits may not be combined; 1. Agri-tourism and other commercial events or activities under DCC 18.16.042. 2. Winery under DCC 18.16.038(B), 3. Events, outdoor mass gatherings, extended outdoor mass gatherings, parades or funeral processions authorized under DCC Chapter 8.16, 4. Home occupation for commercial events or activities. FINDING: The applicant is proposing up to 6 events/weddings on the site. The applicant has stated he will cease renting out of the property for other uses beyond weddings (corporate retreats or family reunions), which prior use was not permitted by the County. Therefore, the Hearings Officer finds the applicant's proposal satisfies this criterion. 4. Section 18.16.060. Dimensional Standards. 247-15-000001-LUP Page 37 E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: The applicant is not proposing any new structures, or any additions to existing structures. Therefore, this standard is not applicable to the limited use permit. 5. Section 18.16.070. Yards. A. The front yard shall be a minimum of: 40 feet from a property line fronting on a local street, 80 feet from a property line fronting on a collector street, and 100 feet from a property line fronting on an arterial street. B. Each side yard shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with side yards adjacent to property currently employed in farm use, and receiving special assessment for farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with a rear yard adjacent to property currently employed in farm use, and receiving special assessment for farm use, the rear yard shall be a minimum of 100 feet. D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: The applicant is not proposing any new structures or additions to existing structures. These setbacks are not applicable to the limited use permit. AS ZONE STANDARDS. 3. Chapter 18.80,Airport Safety Combining Zone(AS) a. Section 18.80.020, Application of Provisions The provisions of DCC 18.80.020 shall only apply to unincorporated areas located under airport imaginary surfaces and zones, including approach surfaces, transitional surfaces, horizontal surfaces, conical surfaces and runway protection zones. While DCC 18.80 identifies dimensions for the entire imaginary surface and zone, parts of the surfaces and/or zones do not apply within the Redmond, Bend or Sisters Urban Growth Boundaries. The Redmond Airport is owned and operated by the City of Redmond, and located wholly within the Redmond City Limits. Imaginary surface dimensions vary for each airport covered by DCC 18.80.020. Based on the classification of each individual airport, only those portions (of the AS Zone) that overlay existing County zones are relevant. 247-15-000001-L UP Page 38 Public use airports covered by DCC 18.80.020 include Redmond Municipal, Bend Municipal, Sunriver and Sisters Eagle Air. Although it is a public-use airport, due to its size and other factors,the County treats land uses surrounding the Sisters Eagle Air Airport based on the ORS 836.608 requirements for private-use airports. The Oregon Department of Aviation is still studying what land use requirements will ultimately be applied to Sisters. However, contrary to the requirements of ORS 836.608, as will all public-use airports, federal law requires that the FAA Part 77 surfaces must be applied. The private-use airports covered by DCC 18.80.020 include Cline Falls Airpark and Juniper Airpark. FINDINGS: The record indicates the subject property lies within the transitional surface of the Redmond Airport. Therefore, the Hearings Officer finds AS Zone applies to the applicant's proposal. b. Section 18.80.028, Height Limitations All uses permitted by the underlying zone shall comply with the height limitations in DCC 18.80.028. When height limitations of the underlying zone are more restrictive than those of this overlay zone, the underlying zone height limitations shall control. [ORS 836.619; OAR 660-013-0070] A. Except as provided in DCC 18.80.028(B)and (C), no structure or tree, plant or other object of natural growth shall penetrate an airport imaginary surface. B. For areas within airport imaginary surfaces but outside the approach and transition surfaces, where the terrain is at higher elevations than the airport runway surfaces such that existing structures and permitted development penetrate or would penetrate the airport imaginary surfaces, a local government may authorize structures up to 35 feet in height. C. Other height exceptions or variances may be permitted when supported in writing by the airport sponsor, the Department of Aviation and the FAA. Applications for height variances shall follow the procedures for other variances and shall be subject to such conditions and terms as recommended by the Department of Aviation and the FAA (for Redmond, Bend and Sunriver.) FINDINGS: The Hearings Officer finds these criteria do not apply because the applicant does not propose to build or enlarge any structures that would penetrate the imaginary surfaces, and no height exceptions are included in the applicant's proposal. c. Section 18.80.044, Land Use Compatibility Requirements 247-15-000001-LUP Page 39 Applications for land use or building permits for properties within the boundaries of this overlay zone shall comply with the requirements of DCC 18-.80 as provided herein.... A. Noise. Within airport noise impact boundaries, land uses shall be established consistent with the levels identified in OAR 660, Division 13, Exhibit 5(Table 2 of DCC 18.80).... FINDINGS: The record indicates the subject property is not located within the noise impact boundary of the Redmond Airport and therefore this criterion is not applicable. B. Outdoor lighting. No new or expanded industrial, commercial or recreational use shall project lighting directly onto an existing runway or taxiway or into existing airport approach surfaces except where necessary for safe and convenient air travel. Lighting for these uses shall incorporate shielding in their designs to reflect light away from airport approach surfaces. No use shall imitate airport lighting or impede the ability of pilots to distinguish between airport lighting and other lighting. FINDINGS: The applicant's proposed LUP is for commercial events and therefore is a new commercial use. Therefore, the Hearings Officer finds the outdoor lighting requirements in this criterion are applicable. This criterion could be met with a condition of approval to assure that any outdoor lighting does not project directly onto a runway or taxiway, and shall be shielded to reflect light away from airport approach surfaces. C. Glare. No glare producing material, including but not limited to unpainted metal or reflective glass, shall be used on the exterior of structures located within an approach surface or on nearby lands where glare could impede a pilot's vision. FINDINGS: This criterion could be met with a condition of approval to assure that any materials utilized in weddings/events on the subject property do not produce glare. D. Industrial emissions. No new industrial, mining or similar use, or expansion of an existing industrial, mining or similar use, shall, as part of Its regular operations, cause emissions of smoke, dust or steam that could obscure visibility within airport approach surfaces, except upon demonstration, supported by substantial evidence, that mitigation measures imposed as approval conditions will reduce the potential for safety risk or Incompatibility with airport operations to an insignificant level. The review authority shall impose such conditions as necessary to ensure that the use does not obscure visibility. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant's proposal is not a new industrial, mining or similar use. 247-15-000001-LUP Page 40 E. Communications Facilities and Electrical Interference. No use shall cause or create electrical interference with navigational signals or radio communications between an airport and aircraft.... FINDINGS: The Hearings Officer finds this criterion is riot applicable because the applicant's proposal does not include a communications facility or a facility that would create electrical interference. F. Limitations and Restrictions on Allowed Uses in the RPZ, Approach Surface, and Airport Direct and Secondary Impact Areas. For the Redmond, Bend, Sunriver, and Sisters airports, the land uses identified in DCC 18.80 Table 1, and their accessory uses, are permitted, permitted under limited circumstances,or prohibited in the manner therein described. FINDINGS: The Hearings Officer finds this criterion is not applicable because the applicant's proposal is within the transitional surface of the Redmond Airport and not within the RPZ, approach surface, or airport direct or secondary impact areas. d. Section 18.80.054, Conditional Uses Uses permitted conditionally shall be those identified as conditional uses in the underlying zone with which the AS Zone is combined, and shall be subject to all conditions of the underlying zone except as provided in DCC 18.80.044. FINDINGS:The applicant requests an LUP to conduct up to six weddings/events each year, a use permitted In the EFU Zone subject to special provisions set forth in Section 18.16.042, discussed in the findings above. For this reason,the applicant's proposal is permitted in the AS Zone. 247-15-000001-LUP Page 41 IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby DENIES the applicant's request for a limited use permit for up to six weddings/commercial events per year on the subject property because the applicant failed to meet its burden of proving the proposed commercial use is "incidental and subordinate to"existing farm use on the property. Step ante arshal l Icks, Hearings Officer Dated this2• day of May 2015' Mailed this day of May, •2O t 5 THIS DECISION BECOMES FINAL IF NOT APPEALED WITHIN 12 DAYS OF THE DATE OF THE DECISION. 247-15-000001-LU P Page 42 x- o t LA' ' 2�usmw Fs - .01-41‘ asaxi iAC eR�Fno� r wntn 'M g.". t,;:e� y � R 4 EreTRe g Ir ""1° �, wu S i I \. .LJA »' x 0,03A0441 _ 1 Win. .MA,o E.U.R. ■ Legend 247-15-000001-LUP 247-15-000298-A �ubre.�Prooer�� Applicant: Paul & Hanna Cooper County F Taxlots: 1612320000301 & 1612320000314 u �m.omeamo�a,eeea aoeoae k_ MVA10-Mu Ogle Ilse Agnewbral J SM-Sara,.Mnmg o >so sao loco 1 oDO .urc. Re=ee�a m e minimum _ heel ti omobur 13.2015 -res. 1 ' o0 00*?'‘ 'r" BOARD OF COMMISSIONERS' MEETING � { "' _ REQUEST TO SPEAK Agenda Item of Interest tt jt. Date /0----2 Name aatt r Address / 217 Veziley... Phone #s 56 3.4 $`b7-117/ E-mail address C .y `<< J Q a mks--i C�)•y? n Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? es No 3 80:, BOARD.OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest IL 66 Date 16 c(,- )1- Name Address , .", �;� Phone #s 1'~I(- G E-mail address kIn Favor Neutral/Undecided I I Opposed Submitting written documents as part of testimony? I Yes Ix l No ,'4?,?,,, . : ^VI BOARD OF COMMISSIONERS' MEETING...... ' REQUEST TO SPEAK Agenda Item of Interest ,9 ) p t t(4 Date /0�(p fed`J Name B/71, einylec IL Address 4 s , / I i j r A i _!L I, AI i 00 Phone #s -V3 .7a3'0 /3 E-mail address er J f/jgc 9m . C In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes No r October 26, 2015 Board of County Commissions of Deschutes County 1130 NW Wall Bend, Oregon 97701 Attn: Anthony Debone, Chair Alan Unger, Vice Chair Tammy Baney, Commissioner RE: De Novo Appeal on Application 247-1 5-000001-LUP (247-15-000298-A)pursuant to Title 22 of the Deschutes County Code—Paul and Hana Cooper,Applicants Please accept the following additional exhibits to be included in the record regarding the above appeal. Supplemental Exhibits: A-1 Pictures of Aspens—in ground,taken 10/23/2015 (2 pgs) A-2 Tree Sale Receipt and Check(2 pgs)—4/17/15 A-3 Tree Sale Receipt and Check(2 pgs)— 10/1/15 A-4 Tree Sale Receipt and Check(2 pgs)— 10/14/15 A-5 2015 VRBO (rental) and Wedding Income A-6 2014 VRBO(rental) and Wedding Income A-7 August 2012 Duggan Findings and Decision (24 pgs) A-8 Wedding Venue Rental Agreement—revised—reflecting $400 night rental (4 pgs) A-9 Applicant Ranch Home Add—reflecting$400 night rental charge A-10 Schedule 2014 Form 1040 (If this is not in the packet today, we ask that the record Be left open for submission of such. We have extreme difficulties with computers, e-mail and wi-fi and were unsuccessful in getting it forwarded to us in time). Thank you again for hearing this case. We look forward to receiving your decision. Best regards, Paul Cooper, co-applicant Hana Cooper, co-applicant e:\appeal and supplemental.docx yy.,„„ Ili ., i. '',,, i , 4 :, „,, ,.. .„ ....,..:„ , . 4.1., ., ..,, ,,,,,i!„._ , hr.., ,i,,,, ...,,,,,, .1:1, ., „ .„ , _ . '‘ - ri.k. "K - r - At #4 -%., ' . - , "$ m " 4*rs y c r i mar k . 1 . , , . , , ll y . 7799 4 t k'c . A- 1 4.) . I r ' .ate • � •� - '. J .. !M ' . 1.� E +r . " • .,7Ad .` mowr.,.....qq�.•T "a ar^4 li a F :s Vi, " •4 4.. .• .A — 4 a:r r 116t,.•; ' ) -_,.--:\e. n , i tp 2.) DATE 4-17-2015 PAUL COOPER PO BOX 365 MONUMENT,OR.97864 541-934-2423 FAX:541-934-2307 loreencooper @centurytel.net BLAKE LAWRENCE PO BOX 401 MONUMENT,OR.97864 invoice:#356 Purchase of-20—2"to 3"inch Aspen Trees$85.00 each=$1700.00 300—1"to 1 1/2"Aspen Tree Whips x$15.00 each= $3000.00 TOTAL AMOUNT DUE=$4700.00 THANK YOU FOR YOUR BUSINESS PLEASE MAKE CHECK PAYABLE TO PAUL COOPER A-z 1 ) - 1 ck.1 ;.,-.‘;, ill 1 • re> ... , OD c., 4,,....:•, .,_, 1 ------•,„ ,), 1 \ --_-,---- i 0 •-„..:1 . -•/) ,,.... ....,. .Id ..._. _ ■.,,y -'•1 Z•, -":.:i. 4:1 • 1 . ruai X a ,... d = U-1 , ". 1 cc • Ln I >, IT an cr '5 ul qc — to ri) r,i3 ... CD,... ..J3 ui , •-•-) -:=T- kg a '.. - •• z g 03 s- co r1.1 CC LLIT:I.W =LL s:krow ''t Q o a .. 4! CU 'CC I°m Z I-Ul .,r , • —1 .00 ›-,si I . 2 vo• .. Cx 4 - 2 (10- 7-) DATE 10-1-2015 PAUL COOPER PO BOX 365 MONUMENT,OR.97864 541-934-2423 FAX:541-934-2307 loreencooper@centurvtel.net SEAN PETERSON 191251 BUCK CANYON RD. BEND,OR 97702 INVOICE#351-FOR TREES PURCHASED. 9-Choke Cherry Trees @ $60.00 per tree= $540.00 15-Blue Spruce Trees @$60.00 per tree= $900.00 2--Swedish Aspen Trees @$100.00 per tree= $200.00 3—Lodge Pole Pine Trees @$75.00 per tree= $150.00 2—Pin Oak Trees @$50.00 per tree= $100.00 12—Ponderosa Pine Trees @$55.00 per tree= $660.00 TOTAL INVOICE 42550.00 THANK YOU FOR YOUR BUSINESS PLEASE MAKE CHECK PAYABLE TO PAUL COOPER E p - 3 (p. ) ) SEAN PETERSON 001 018 11 l �1 j t. 10-3- (S 244aw3z3283 a5s 3 i $ X550 -vc llenwwO (e L 4 J I l' !v Bank of America T 1: 5230 703801: x.850®594 20t470 10 113 • x . 4-3 (p.2) DATE 10-14-2015 PAUL COOPER PO BOX 365 MONUMENT,OR.97864 541-934-2423 Fax: 541-934-2307 loreencogperrcenturvteLnet QUALITY IRRIGATION AND ANDSCAPING LLC PO BOX4903 SUNRIVER,OR.97707 INVOICE#362:PURCHASE OF TREES 15—2"—Swedish Aspen Trees @$110,00 per tree= $1650.00 26—2"Aspen Trees @$65.00 per tree= $1690.00 53—%"to 1%"Aspen Tree whips @$20.00 per tree= $1060.00 13--3"Aspen Trees @$110.00 per tree= $1430.00 36—2"Canada Red Trees @ $65.00 per tree= $2340.00 TOTAL INVOICE=$8165.00 FOR YOU F R YOUR BUSINESS PLEASE MAKE CHECK PAYABLE TO PAUL COOPER Cle 0 W e x .t cD T ' r ,.• n , i a h 1. .0 o V Q. . = 71 n� r .. w N.8 F ` ; �" ww + 1 p }. ` V q •.• ; ♦ L} .,.. 3 t• �s " t . 1 0 1 1 z i 0. : .� I. v). 1 4 w I;. Intel{®.c.bwm;4nCk.1r SctutC•Chiµ.* L:Y L7,1111µCnfiftCIL' ! ( A -el (a. z. ) 2015 Cooper Ranch Projected Income—Farm Income Not Included MAY- $1200.00 VRBO JUNE- $2250.00 VRBO JULY- $1200.00 VRBO JULY- $3500.00 WEDDING JULY- $3500.00 WEDDING AUG - $3500.00 WEDDING AUG- $3500.00 WEDDING AUG- $3500.00 WEDDING SEPT.- $3500.00 WEDDING OCT. - 0 NOV. - 0 DEC. - 0 TOTAL-$22,150.00 LESS CANCELED WEDDING EX 6- 5 2014 COOPER RANCH INCOME-NOT INCLUDING FARM INCOME JAN.- $1200.00 VRBO FEB.- $1200.00 VRBO MAR.- 0 APRIL- 0 MAY- $3600.00 JUNE- $9750.00 VRBO AND ONE WEDDING JULY- $7000.00 TWO WEDDINGS AUG.- $3500.00 ONE WEDDING SEPT.- $3500.00 ONE WEDDING OCT.- 0 NOV. - 0 DEC.- 0 TOTAL-$29750.00 W ' Community Development Department 0 v Planhin g Division Building Safety Division Environmental Sella D ivision �� , 'q 1 � :'' � - S - � v.M � r1? rR .. a n s -1� R ,� P.O. BOX 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541.)385-17.64 • http://www.co.deschutes.or,us/tdd/ FINDINGS AND DECISION FILE NUMBER: LUP-12-4 APPLICANT/OWNER: Michael and Diann Duggan 3836 NE Smith Rock Way Terrebonne, OR 97760 REQUEST: The applicant is requesting a Type 2 Limited Use Permit for a commercial events/activities facility on a 200-acre parcel in the Exclusive Farm Use zone. STAFF CONTACT: Paul Blikstad, Senior Planner I. APPLICABLE CRITERIA: Title 18, Deschutes County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zone Title 22, Deschutes County Development Procedures Ordinance Oregon Revised Statutes 215.296 II. BASIC FINDINGS: A. LOCATION: The subject property has an assigned address of 3836 NE Smith Rock Way, Terrebonne, and is identified on Deschutes County Assessor's Map 14-13-24 as Tax Lot 400. B. LOT OF RECORD: The subject property is a legal lot of record pursuant to being Parcel 2 of Partition Plat No 2003-60. C. ZONING: The subject property is zoned Exclusive Farm Use — Terrebonne subzone (EFU-TE). This property is designated Agriculture on the Deschutes County Comprehensive Plan. D. SITE DESCRIPTION: The subject property is approximately 200 acres and has an existing dwelling and barn, as well as an open air structures for the farm-related commercial uses on the site. The site is accessed from an existing driveway off of NE Smith Rock Way. The topography of the site is generally level, and the site includes Quality Services Performed with Pride - (P ) crops, including pumpkin plants, alfalfa hay, and corn and potato fields. There is a lawn area adjacent to the barn, as well as a parking area adjacent to the barn. The property is served by an existing domestic well, and an on-site septic system. E. SURROUNDING LAND USES: The properties surrounding the subject property consist of residences with some farming occurring, which are also zoned EFU-TE. To the west across NE 33rd Street is the Dale Acres subdivision zoned Multiple Use Agricultural (MUA-10), which is all dry .land. The boundary between Crook County and Deschutes County is located one-half mile to the east. F. PROPOSAL: The applicant proposes to establish a commercial events or activities facility on the subject property. The applicant is proposing to utilize the existing site as a wedding or other group functions facility, with up to six commercial events/weddings each year. The applicant's burden of proof states the following: "Up to 6 commercial events/weddings will be held on the property year around. The events are typically on Saturdays but may occur during the week as well. Usually the day before the event or wedding includes preparation of the site, including setting up chairs and tables. The events will have a maximum of 500 people in attendance. The time frames for the events and weddings are anywhere from 10:00 a.m. to 10:00 p.m. when the event will be finished. The following day consists of final clean-up involving a few people, with everything picked up and done by 5 p.m. Access and egress, parking facilities and sanitation and solid waste operational characteristics are addressed below." G. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and received the following comments: 1. Deschutes County Environmental Soils Division: If this proposal includes the use of a new or existing onsite wastewater treatment system, the proposal must comply with Oregon rules for Onsite Wastewater Treatment Systems. Portable toilets and handwash stations owned and maintained by a licensed sewage disposal service may be used for these events. 2. Deschutes County Transportation Planner: I have reviewed the transmittal materials for up to six special events at the Duggan farm, 3836 NE Smith Rock Way, Terrebonne, aka 14-13-24, TL 400. The burden of proof says events typically will be on Saturdays but may occur during the week as well. The largest events could include up to a maximum attendance of 500 people, according to the applicant. Deschutes County Code 17.16.115(C) sets a traffic threshold of 50 new weekday trips for requiring traffic studies. By contrast, there is no requirement for a traffic study when an applicant gets and Event Permit or an Outdoor Mass Gathering permit from the County's Risk Management. As the Duggan application means the activities will more closely resemble a series of limited events rather than a land use that will continue indefinitely once approved. Therefore, I don't believe DCC 17.16.115 applies. LUP-12-4, Duggan Page 2 (Az) The applicant will need to coordinate with the Road Department regarding temporary signage or use of certified flaggers for larger events, defined as events with an expected attendance of 250 or more. • Transportation system development charges (SDC's) are triggered by building permits and the applicant is not proposing any new structures. Even if there were new structures the SDC's approved under Board Resolution 2008-059 would not apply for the same reasons DCC 17.16.115 does not apply. The events are episodic, not continual in nature and thus do not consume roadway capacity. 3. Deschutes County Environmental Health: Mobile food unit owned by Duggan is approved. Water system is currently approved. See attached letter re: mobile food unit connection to existing sewage system. Will require quarterly sampling/reporting for coliform bacteria and annual nitrate. 4. County Assessor: Currently under deferral. 5. Pacific Power and Light, Deschutes County Road Department, Redmond Fire and Rescue: No comment responses. 6. The following agencies did not respond to the notice: Central Oregon Irrigation District, Central Electric Cooperative, County Building Division, Century link, Oregon Department of Environmental Quality, Oregon Department of Agriculture. H. PUBLIC COMMENTS: The Planning Division sent notice of this proposal to all property owners within 750 feet of the subject property. One letter was received in opposition to the application. The letter was concerned with the noise created by the use. NOTICE REQUIREMENTS: The applicant complied with the posted notice requirements of Section 22.23.030(B) of Deschutes County Code (DCC) Title 22. The applicant submitted a Land Use Action Sign Affidavit, dated August 21, 2012, indicating the applicant posted notice of the land use action on August 2, 2012. J. REVIEW PERIOD: This application was submitted on July 26, 2011 This application was deemed complete and accepted for review on August 22, 2012. K. LAND USE HISTORY: The subject property includes the following prior land use applications: CU-03-24/SP-03-20, Conditional Use Permit and Site Plan for the existing pumpkin patch use on the site. CU-03-25/MP-03-8, Conditional Use Permit for a nonfarm dwelling, and a Partition to create a 4.06-acre nonfarm parcel from the parent parcel. S-04-4, Sign Permit for a farm sign. AD-08-18/SP-08-29, Administrative Determination and Site Plan for a farm stand. This application was withdrawn. LUP-12-4, Duggan Page 3 / " " L. ADJACENT PARCELS: The EFU-zoned properties in the area that are within one mile of the boundaries of the subject property are as follows: Tax Lot No. Owner Size(Acres) Dwelling Farm Use Tax Deferred 14-13, 100 BLM 1134.4 No None No 14-13-13, 100 Bean 40 2006 Horses No 14-13-13, 101 Torcom 39.75 No None No 14-13-13, 200 Esch 7.53 1986 None No 14-13-13, 201 Green 46.54 1995 None Yes Mansions 14-13-13, 202 Hankins 7.73 1995 None No 14-13-13, 300 Re-•ret Inc. 35.93 1939 Pasture Yes 14-13-13, 400 Henry 3.52 1944 None No 14-13-13, 600 Taulbee 9.51 _ 1972 None No 14-13-13,,601 McGinty 19.58 No None No 14-13-13, 602 Lage/Bold 5 1996 None No 14-13-13, 603 Perez 5 2005 None No 14-13-13, 700 Guthrie 39.09 1975 Pasture Yes 14-13-13, 800 Davis 19.56 1980 Pasture Yes 14-13-13, 900 Deschutes .46 No None No County 14-13-13, 901 Graham 8.43 1981 Pasture Yes 14-13-13, 1000 Kanzaki 5.67 _ 1972 Pasture Yes 14-13-13, 1100 Gottfried 5 1978 Pasture Yes 14-13-13, 1200 Platt 27 1973 Pasture Yes 14-13-13, 1300 Eskew 11.48 No Pasture Yes 14-13-13, 1400 Platt Resources 37.14 1939 Pasture Yes Grass hay 14-13-13, 1500 King 1 _ 1979 None No 14-13-13, 1600 King 6.63 No None No 14-13-13, 1700 Nichols 12.5 1972 Pasture Yes 14-13-13, 1800 Belcher _ 21.4 1909 Pasture Yes 14-13-13, 1801 Cross 9.8 1979 Pasture Yes . 14-13-13, 1802 Klaus 22 1992 Pasture Yes 14-13-13, 1803 Etter 14.7 2000 Pasture Yes 14-13-136, 201 Capitano 4.31 No None No 14-13-13B, 202 Vanwyk 10.79 _ 1999 None No 14-13-136, 204 McFarlane .44 No None No 14-13-136, 300 Boschma _ 4.64 2007 Pasture Yes 14-13-13B, 301 Capitano 2.69 1998 None No 14-13-13B, 304 Wright 6.3 2002 None No 14-13-13B, 305 Carrizales 4.54 No None No 14-13-13B, 400 Walters 10 2007 None No 14-13-13B, 500 Herschbach 4.31 2003 None No 14-13-13B, 501 Anderson 2.5 1974 Pasture Yes 14-13-136, 502 Sabitt 3.19 No None No 14-13-136, 600 NUID 4.93 1970 None No 14-13-14C, Lantz/Clement 60.05 , 2009 Pasture Yes 1100 14-13-14C, 1101 D&B Mac _ 8.28 No Pasture Yes _ 14-13-14C, 1102 Wormington 2.5 1914 None No LUP-12-4, Duggan Page 4 P._ 11 "-1 ir. 41.\ 14-13-14D, 100 Court 53.97 T 1978 Pasture Yes 14-13-14D, 101 Irby 4.29 2000 None No 14-13-14D, 102 Ormond 3 No None No 14-13-14D, 200 McLaughlin 3.58 1934 Pasture Yes 14-13-140,400 Swift 9.9 _ 1980 Pasture Yes 14-13-140, 401 Abbas .42 No None No 14-13-14D, 402 Abbas 42.51 1966 Pasture Yes 14-13-140, Abbas _ 2.02 1954 None No 403 14-13-14D,404 Armson 2.02 1980 None No 14-13-14D, 405 Loy 18.54 1989 Pasture Yes 14-13-14D,406 Abbas 7.09 2002 None No 14-13-23, 100 D&B Mac LLC 120.67 No _ Hay/Pasture Yes 14-13-23, 101 D&B Mac LLC 29.52 No None No 14-13-23, 102 Sheldon 44.51 No _ Hay/Pasture Yes 14-13-23, 103 Sheldon 3.74 No None No 14-13-23, 200 Deschutes 159.35 No None No County 14-13-23, 201 COID 39.67 _ No None No 14-13-23, 202 Clement/Lantz 18.77 No _ None No 14-13-23, 203 Peebles 39.64 No None Yes 14-13-23, 204 Clement/Lantz 21.33 No _ None No 14-13-23, 300 Abbas 51.2 1980 Hay/Pasture Yes 14-13-23, 301 Abbas 3.93 1930 None No 14-13-23, 302 Roy 4.12 1981 None No 14-13-23, 303 Rodgers 3.72 1900 None _ No 14-13-23, 306 Abbas 3.77 1979 None No 14-13-23, 307 Abbas 4.63 1999 None No 14-13-23, 400 Kelley 8.91 1979 Pasture Yes 14-13-23,401 Abbas 2.32 2006 None No 14-13-24, 100 Stream 76.56 1990 Pasture Yes 14-13-24, 200 Laurance 39.09 1944 Pasture Yes 14-13-24, 300 Stewart 36.55 1955 Pasture Yes 14-13-24, 401 Hinton 4.06 2004 None No 14-13-24, 600 Woodward 10.1 1950 None No 14-13-24, 601 Dunn 9.6 1979 Pasture Yes 14-13-24, 700 Rawlins 9.69 1925 Pasture Yes 14-13-24, 800 James 10 1988 Pasture Yes 14-13-24, 904 Elrod 18.77 No Pasture Yes 14-13-24, 1000 Neal 15.6 _ 1981 Pasture Yes 14-13-24, 1001 Neal 1 No None No 14-13-24, 1103 Jager 68.48 2002 Hay/Pasture Yes 14-13-24, 1200 Mills 1.85 1996 None No 14-13-24, 1300 Newton 36.74 No Pasture Yes Properties 14-13-24, 1400 Newton 25.4 No None No - 14-13-24, 1401 Newton/Wasche 2,91 1975 None No _ 14-13-25, 100 Ferguson 40.23 1977 Pasture Yes 14-13-25, 200 Schoaff 39.09 1900 Hay/Pature Yes 14-13-25, 300 April! 5.63 1999 None No 14-13-25, 400 Edmonds 3.68 2006 None No LUP-12-4, Duggan Page 5 /'s _ /_ r. . 14-13-25, 500 Sanders 30 1980 Pasture Yes 14-13-25, 600 Sanders 39.09 No Hay/Pasture Yes 14-13-25, 700 Elrod 79.02 1909 Pasture Yes 14-13-25, 701 Elrod 39.8 No Hay/Pasture Yes 14-13-25, 707 Elrod 11.52 No Pasture Yes 14-13-25, 800 Farnsworth 13.05 2001 Pasture Yes _ 14-13-25, 900 Short 12.5 No None No 14-13-25, 901 Noble 13.05 2004 None No 14-13-25, 1000 Woodward 13 1975 None No _ 14-13-25, 1001 Howard 5 1981 None No 14-13-25, 1100 Lamb 13.26 1977 None No 14-13-25, 1200 Simmons 242.29 1969 Hay/Pasture Yes 14-13-26, 100 Copper Moon 74.85 No Hay/Pasture Yes LLC 14-13-26, 101 Copper Moon 78.04 1980 Hay/Pasture Yes LLC 14-13-26,200 Deschutes 79.43 No None No County 14-13-26, 300 Copper Moon 36.78 No Pasture Yes LLC - 14-13-26, 400 Devore 18.3 • 1993 None No 14-13-26,401 Cron 46.97 2000 _ Pasture Yes 14-13-26, 402 Copper Moon 27.49 No Pasture Yes LLC 14-13-26, 403 Coleman 106.84 1911 Hay/Pasture Yes 14-13-26, 500 Hygelund 17.08 No Pasture Yes 14-13-26, 600 Norton 31.38 1992 Pasture Yes 14-13-26, 1000 Stone 64.14 1964 Pasture Yes 14-13-26, 1001 Turmon 12.34 1975 None No 14-13-26, 1100 City of Prineville 2.3 No None No III. CONCLUSIONARY FINDINGS: Title 18, Deschutes County Zoning Ordinance. A. CHAPTER 18.16. EXCLUSIVE FARM ZONE 1. Section 18.16.025. Uses Permitted Subject to the Special Provisions Under DCC Section 18.16.038 or DCC Section 18.16.042 and a Review Under DCC Chapter 18.124 where applicable. K. Agri-tourism and other commercial events and activities subject to DCC 18.16.042. FINDING: The applicant is proposing a commercial events and activities facility. The criteria under DCC 18.16.042 are addressed in this decision. There are no criteria under DCC 18.16.038 for the proposed use, and it is not subject to site plan review under DCC Chapter 18.124. LUP-12-4, Duggan Page 6 A at , /_ L\ 2. Section 18.16.042 Agri-Tourism and other Commercial Events or Activities Limited Use Permit - A. Agri-tourism and other commercial events or activities related to and supportive of agriculture may be approved in an area zoned for exclusive farm use only if the standards and criteria in this section are met. FINDING: The applicant is proposing a commercial events or activities facility, which will consist of conducting weddings or other events at the site. The standards under DCC 18.16.042(C) are addressed below. B. Application. The application shall include the following. 1. The General Provisions information required in DCC 22.08.010. FINDING: County Assessor's records indicate the applicants are the owners of the subject property. The applicant has submitted the Limited Use Permit application form, a burden of proof statement addressing the criteria in DCC 18.16.042, the correct filing fee, and has submitted the affidavit attesting to the fact that the land use action sign was posted on the property on August 2, 2012. 2. A written description of: a. The proposal. FINDING: The applicant has addressed the above standards on page 3 of the burden of proof statement. The applicant states that up to 6 commercial events/weddings will be held on the property per calendar year The applicant has also stated that weddings or events are generally held on Saturdays. The applicant's burden of proof states that the day before the wedding or event includes preparation of the site, including setting up chairs and tables. The weddings will have a maximum of 500 people in attendance. The applicant states that activities for weddings or events is from approximately 10:00 a.m. to 10:00 p.m, when the event is finished. The following day (generally Sunday) consists of final clean-up that involves a few people, with everything picked up and done by 5:00 p.m. Access and egress, parking facilities, and sanitation and solid waste operational characteristics are addressed below. b. The types of agri-tourism and other commercial events or activities that are proposed to be conducted, including the number and duration of the agri-tourism and other commercial events and activities, the anticipated maximum daily attendance and the hours of operation, and how the agri-tourism and other commercial events or activities will be related to and supportive of agriculture and incidental and subordinate to the existing farm use on the tract. FINDING: The applicant addressed 2(b) above with the following statements in the burden of proof: LUP-12-4, Duggan Page 7 "These activities and the agricultural practices that are conducted on the property are very much connected. With regards to the wedding events, the people who choose to have their wedding at the ranch have chosen the ranch over a multitude of other options including hotels, resorts, golf courses, churches, parks, the ocean or forest. They want to be part of the working ranch, an environment which includes the sounds and sights of irrigation sprinklers, tractors, cattle, etc. These attributes do not exist anywhere else other than a ranch setting. As part of the wedding festivities, a hog from the ranch is cooked and served to the wedding guests. The other events such as a hoedown and other fund raising events and a mud run are all connected directly with the ranch and the opportunities that are only available at the ranch. There are the open fields, the barn, the ponds, the cattle and other farm animals, the crops grown on the farm including the potatoes, corn, pumpkins, flowers, eggs and other products sold out of the farm store to the people attending these events. Produce grown on the property includes squash, rhubarb, zucchini, and wreaths made from the produce as well. The main product sold on the ranch is grass fed beef, pork and sheep raised on the ranch and which is sold through direct marketing to the ranch event attendees. There are also trail rides, cattle drive activities, exposure to all the farm animal events for the kids, barbecues in which produce and beef grown on the ranch is cooked and available to the attendees of the events. Mike and Diann Duggan sell to the attendance (sic) of the events beef from their cattle as well as corn, potatoes and other products out of their farm store. These events expose people to the ranch and to the beef and other farm produce that are available for sale to the public. The farm operation, including caring for the animals and other produce growing operations in the spring, summer and fall is a full time all year around job. The proposed events with this limited use permit will encompass a maximum of six weekends a year and will only utilize a small portion of the approximately 200 acre farm. But these events help expose • people to the ranch, the beef and other produce that is available for sale and to the pumpkin patch events in the fall. So much sales and interest in the ranch are generated in these events, during the pumpkin patch events that happen in the fall, many customers mention that they first heard of the DD ranch because they attended an event or wedding. Senate Bill(SB), approved by the State Legislature in 2011, is the legal basis for DCC 18.16.042. SB 960 establishes the "related to and supportive of agriculture" standard, as well as the "incidental and subordinate to a farm"use standard. These proposed events are related to and support the primary business on the property which is the selling of the produce, beef and pork raised on the property. The main source of sales for the farm is through direct marketing to customers at events on the property. in addition, occasionally beef is purchased from surrounding ranches and farms as well for these events. They expose the ranch and their business to the general public and help generate supplemental income to support the ranch." LUP-12-4, Duggan Page 8 Senate Bill (SB) 960, approved by the State Legislature in 2011, is the legal basis for DCC 18.16.042. SB 960 establishes the "related to and supportive of agriculture" standard, as well as the "incidental and subordinate to a farm use" standard. The law, however, does not define these terms or phrases. Staff has not found the "related to and supportive of agriculture" standard defined elsewhere in state law or Land Use Board of Appeals (LUBA) decisions. Several LUBA decisions address the "incidental and subordinate to a farm use" standard, but each case appears to be applicable to the particular circumstances of the subject application, property, and local regulations. Therefore, to better understand and apply the meaning and intent of these terms and phrases, staff looks to the following sources: 1. The Oregon Department of Land Conservation and Development's "Guide to Wineries and Events in EFU Zones" dated, March 1, 2012; 2. The Webster's New World Dictionary; and 3. The Association of Oregon Counties (AOC) Farmland Activities Task Force Final Report and Recommendations, dated December 13, 2010. This report was the basis for SB 960 and is included in the State Legislative record for SB 960 and Deschutes County's record for the ordinance adopting DCC 18.16.042. Staff summarizes each of these sources in order. 1. DLCD's "Guide to Wineries and Events in EFU Zones" states: "Q: What does `related to' and 'supportive of' agriculture mean in SB 960? What about `incidental and subordinate?' A: We interpret 'related to' and `supportive of' to mean that the proposed agri-tourism or other commercial event or activity is physically and/or economically logically connected to, and supports, an existing on-site farm operation. For example, 'related to'could mean that the proposed event involves a product that is produced on site that has a meaningful and significant relationship to the proposed event. 'Supportive of' could involve the generation of supplemental income to support a farm. 'Incidental and subordinate' means that the event or activity is strictly secondary and ancillary to on-site farming in terms of income generated, area occupied, and off-site impacts." 2. Webster's New World Dictionary defines: Related: "connected or associated, as by origin or kind" Supportive: "that gives support, help or approval" Incidental: "happening as a result of in connection with something more important; secondary or minor" Subordinate: "inferior to or placed below another in rank, power, importance, etc.; secondary" LUP-12-4, Duggan Page 9 _ W / 3. AOC Farmland Activities Task Force Final Report and Recommendations Page 4. "The Task Force realizes these recommendations may not provide an opportunity to conduct activities and events on farmland which do not promote farm use. However, we believe it is a good basis for providing balance between the conservation of farmland and the need of farmers to use their land in beneficial yet non-traditional ways." Page 6. "The Farmland Activities Task Force developed a set of principles with the assistance of state agencies and other interested parties to guide its work. A list of issues was also compiled based upon the responses to the statewide survey referenced above and the comments and discussion of the Task Force. "Principles The FATF developed and approved the following principles: 1. Give preference to 'farm use'as defined in ORS 215.203(2) (a) on farmland. 2. Support economic activities that compliment farm use. 3. Seek opportunities for better communication between those wishing to establish nontraditional farm uses and those who may be impacted by such activities. 4. Ensure compliance with public health, environmental health and safety requirement when establishing other uses on farm land. 5. Ensure activities associated with 'farm use'(i.e. efficient operation of equipment and transport of products to market in a timely manner) are not impaired. 6. Assist counties with establishment of clear, transparent, and to the extent possible, consistent processes for consideration of traditional and nontraditional farm activities. 7. Identify 'best practices'in the public process for consideration of nonfarm issues on farm land." Staff believes the key components of this criterion for which findings must be made are: 1. Is there a farm use, as defined in ORS 215.203(2), on the property? 2. How is the commercial event related to and supportive of agriculture? 3. How is the commercial event incidental and subordinate to the farm use? Staff addresses each component of this criterion in order. 1. is there a farm use, as defined in ORS 215.203(2), on the property? Oregon Revised Statute (ORS) defines a farm use under ORS 215.203(2) as: LUP-12-4, Duggan Page 10 "(2)(a)As used in this section, "farm use"means the current employment of land for the primary purpose of obtaining a profit in money by raising, harvesting and selling crops or the feeding, breeding, management and sale of, or the produce of, livestock, poultry, fur-bearing animals or honeybees or for dairying and the sale of dairy products or any other agricultural or horticultural use or animal husbandry or any combination thereof..." Staff finds this element of the criterion is met because the primary use of the property is to seek a profit in money by the sale of beef, and produce such as corn, potatoes and pumpkins. 2. How is the commercial event related to and supportive of agriculture? DLCD's-interpretation of "related to"' and "supportive of' mean that the commercial event or activity is "physically and/or economically logically connected to, and supports, an existing on- site farm operation." The agency's Guide states, "'related to' could mean that the proposed event involves a product that is produced on site that has a meaningful and significant relationship to the proposed event. 'Supportive of' could involve the generation of supplemental income to support a farm." Staff poses a series of questions and answers/findings to address this issue. Do commercial events include commercial weddings? Staff finds the answer to this question is "yes," commercial events include commercial weddings. The text amendment to adopt SB 960 into Deschutes County Code (DCC) also included a new definition of"commercial event or activity." As defined in DCC: "Commercial event or activity" means any meeting, celebratory gathering, wedding, party, or similar uses consisting of any assembly of persons and the sale of goods or services. It does not include agri-tourism. In DCC 18.16.042, a commercial event or activity shall be related to and supportive of agriculture. In addition, while weddings have historically occurred on farms throughout Central Oregon and across the state and nation, they are not considered a traditional farm activity. In public testimony on Deschutes County Ordinance 2012-004 adopting SB 960 and new definitions into Deschutes County Code from several sources, including AOC, Oregonians In Action, the Oregon Farm Bureau, and others, weddings were clearly contemplated as an allowed use as a commercial event or activity under SB 960 for properties with an existing farm use. The AOC Task Force Final Report and Recommendations supports this testimony in its principles (listed above), which call for "economic activities that support farm use," "activities associated with 'farm use;"' and "consideration of traditional and nontraditional farm activities." Weddings are an economic activity that support a farm use, a nontraditional farm activity, and an activity associated with a farm use. In comments to Deschutes County during consideration of Ordinance 2012-004, DLCD Policy Analyst Michael Morrissey and Farm/Forest Specialist Katherine Daniels, wrote: "We aren't sure a wedding meets a definition of agri-tourism, but it isn't hard to see it as an 'other commercial event.' The department believes that 'related to and supportive of agriculture'(together with 'incidental and subordinate) is specific to the site. That means there needs to be on-site farming taking place, and that any wedding activities must LUP-12-4, Duggan Page 11 i* Ar, / _ �� either provide supplementary income to a farm operation that earns a larger income, so that they financially 'support' the onsite farming. It could also mean that wedding activities must use products grown on the farm as part of the wedding activities (e.g., flowers from a flower farm, etc.). However, as an example, a free standing 15-acre `wedding mill,'on an EFU zoned site, with a dwelling and a personal backyard vegetable garden would not meet the standards, in our opinion." Staff finds that weddings are commercial events contemplated by SB 960. Other events that the applicant may have at the site are also commercial events contemplated by SB 960, such as the hoedown and mud run and other events. The applicant is able to sell farm products to attendees of these events. Are weddings and other events physically and/or economically logically connected to a farm use, and specifically to the existing operation? The applicant's burden of proof statement explains that weddings and other events are physically and economically connected to the existing 200-acre farm and provide support for the farm use on the property. Commercial weddings and other events are physically connected to this specific farm by people choosing to have their wedding in a pastoral setting with its green fields, irrigation sprinklers, tractors, hay balers, and associated sounds. In addition, weddings and other events are economically connected to this farm by the importance of sales of the applicant's farm products at such events in the overall farm operation. The burden of proof states, "Mike and Diann Duggan sell to the attendants of the events beef from their cattle as well as corn, potatoes and other products out of their farm store. These events expose people to the ranch and to the beef and other farm produce that are available for sale to the public." Weddings and other events also are supportive of this farm by providing supplemental income. How are commercial weddings and other events economically connected to this farm use? These events bring people to the property who otherwise would not or do not know about it, and allow for the sale of a significant amount of farm products grown on the site, including sales of beef and pork, and produce such as corn, potatoes, pumpkins, eggs and other farm products. Staff finds the proposed commercial weddings and other events are related to and supportive of agriculture for this application. 3. How is the commercial event incidental and subordinate to the farm use? Staff identifies two components to this question: 1. There must be farm use, as defined in DCC 18.04.030, occurring on the property. 2. The commercial event must be lower in rank or importance, or secondary and ancillary, to the farm use. It also means that the intensity, scope, duration, etc. of the commercial event must be judged proportionate to the scale of the farm use. The first component is addressed above. A farm use exists on this 200-acre property. Therefore, the second and primary question is whether the commercial weddings and other events are incidental and subordinate to the farm use. LUP-12-4, Duggan Page 12 .1 " /— to? The applicant's burden of proof statement demonstrates compliance with this standard based on the amount of time and land used for the weddings compared to that of the farm use. Specifically, the applicant is applying for six (6) days each year to conduct weddings or other events. A few hours the day before and a few hours the day after the six (6) days would be used for set-up and take down. The applicant indicates that the farm use is conducted year round (365 days). The total amount of time for the wedding or other events is less than 5% of the overall total amount of time for farm production each year. The area occupied by the wedding events is less than two acres, including the parking area. The applicant has stated to staff that the farm has 155.75 acres of irrigation water rights, and all of that is taken up by the farming on the site. The number of acres slated for the weddings and events is less than 10 acres. Therefore, the area used for weddings and other events is approximately 6.4% of that used for farming. t. Staff finds that the wedding and other event time periods and land area are incidental and subordinate to the farm use on the property. In sum, staff finds a qualifying farm use on the subject property, and that the commercial weddings and other events are related to and supportive of agriculture and incidental and subordinate to the existing farm use. Staff finds this criterion is met. c. The types and locations of all permanent and temporary structures, access and egress, parking facilities, and sanitation and solid waste to be used in connection with the agri-tourism or other commercial events or activities. 1 FINDING: The applicant addressed c., above, on page 4 of the burden of proof as follows: "The applicants intend to primarily utilize the existing barn and area immediately adjacent to the barn. Within this area, there is adequate space for vehicle loading and maneuvering. This area will be effectively screened from surrounding properties by the expanse or distance to surrounding properties and the existing vegetation and terrain difference. For these three reasons, the applicants believe that the proposed events will have a minimal if any impact on adjacent properties. The applicants believe that the traffic generated by the maximum six events will be light and sporadic and can be accommodated by the existing NE Smith Rock Way which the applicants estimate currently operates well below the design capacity of the road." Staff finds that the applicant has adequately described the structures on the property, as well as access and egress, parking and sanitation. Any solid waste would be disposed of at the County landfill. Staff has imposed conditions of approval to address this standard. Staff finds this criterion is met with the conditions of approval. LUP-12-4, Duggan Page 13 „ -.., i� �1 3. A traffic management plan that: a. Identifies the projected number of vehicles and any anticipated use of public roads; b. Provides an assurance that one traffic control person shall be provided for each 250 persons expected or reasonably expected to be in attendance at any time during the agri- tourism and other commercial event or activity. The traffic control personnel shall be certified by the State of Oregon and shall comply with the current edition of the Manual of Uniform Traffic Control Devices. FINDING: The applicant addressed these criteria on page 3 of the burden of proof as follows: "The proposed events under this limited use permit will generate approximately 150 vehicles from all the participants/guests at an average sized wedding or event. Most people will travel east on Smith Rock Way from Terrebonne and make a right hand turn into the property. Access to the property is a direct turn with no crossing of the opposing lane of traffic. It is estimated that NE Smith Rock Way at this location currently operates well below the design capacity of the road. Staff finds that the applicant has adequately described the anticipated number of vehicles for the event site. The anticipated number of guests (up to 500) will require that at least two traffic control persons must be on-site during the wedding or other event. Attendance under 250 will require one traffic control person. Staff finds this criterion is met with the requirement under"b" above as a condition of approval. c. Demonstrates that the parcel, lot or tract has direct access such that the lot, parcel or tract on which commercial events will occur: i. Fronts on a public road; or ii. Is accessed by an access easement or private road, and all underlying property owners and property owners taking access between the subject property and the public road consent in writing to the use of the road for agri-tourism and other commercial events or activities at the time of initial application. FINDING: The subject property has direct frontage on NE Smith Rock Way in Terrebonne. Staff finds this criterion is met because the property has frontage and direct access to NE Smith Rock Way. 4. Inspection of Event Premises Authorization. The applicant shall provide in writing a consent to allow law enforcement, public health, and fire control officers and code enforcement staff to come upon the premises for which the Limited Use Permit has been granted for the purposes of inspection and enforcement of the terms and conditions of the permit and DCC Chapter 18.16 Exclusive Farm Use Zone and DCC Chapter 8.08 Noise Control, and any other applicable laws or ordinances. LUP-12-4, Duggan Page 14 /� _ A 1 /._ ,I) FINDING: The applicant states that they are willing to sign the consent document. Staff finds that this requirement is met with a condition of approval that the consent form be submitted to and approved by the Planning Division prior to the first commercial event. C. Approval Criteria. 2. Type 2. Up to six (6) agri-tourism and other commercial events or activities in a calendar year on a tract may be approved by a limited use permit that is personal to the applicant and is not transferred by, or transferred with, a conveyance of the tract, if in compliance with: a. Minimum lot or parcel size: 10 acres. FINDING: As indicated in foregoing findings, the subject property is approximately 200 acres. Staff finds this criterion is met. b. Agri-tourism event may not, individually, exceed a duration of 72 consecutive hours, excluding set-up and take down of all temporary structures and facilities. The limitation on the hours of operations is included within the duration of 72 consecutive hours. FINDING: The applicant states that "these events are limited predominately to the weekend. However, there may be the occasional week day event as well. All events will be limited to a maximum of 72 consecutive hours." This standard can be met with a condition of approval. c. Commercial events or activities may not, individually, exceed a duration of 30 consecutive hours, excluding set-up and take down of all temporary structures and facilities. The limitation on the hours of operations is included within the duration of 30 consecutive hours. FINDING: The applicant has stated in the burden of proof that each proposed event will last between 10-12 hours in consecutive duration, and the events will be conducted on six calendar days each year. Set up and take down will occur for a few hours the day before and the day after the commercial event is conducted. Staff finds this criterion is met and imposes a condition of approval based on the application submitted limiting commercial events to the applicants proposal -- 6 calendar days each year, excluding the set-up and take down of all temporary structures and facilities. d. Must be incidental and subordinate to existing farm use of the tract, and shall be related to and supportive of agriculture. FINDING: The findings for this criterion are addressed above. Staff incorporates those findings herein by reference. Staff finds this criterion is met. e. Set-up and take down of all temporary structures and facilities shall occur up to one business day prior to the agri- tourism and other commercial events or activities and one LUP-12-4, Duggan Page 15 /n. K. business day after the agri-tourism and other commercial events between 7:00 a.m. and 10:00 p.m. FINDING: The applicant states in the burden of proof statement that set-up and take down of the facilities used at the site will occur one day before and one day after the events or weddings, within the time limits listed under"e" above. Staff finds this criterion is met. f. May not require that a new permanent structure be built, used or occupied in connection with the agri-tourism or other commercial events or activities. FINDING: The applicant is not proposing any new permanent structure and the Planning Division is not requiring that any new permanent structure be built, used or occupied in connection with the commercial events. Staff finds this criterion is met. g. May not, in combination with other agri-tourism or other commercial events or activities authorized in the area, materially alter the stability of the land use pattern of the area. FINDING: There are no other authorized agri-tourism or commercial events or activities proposed or occurring in the area. The proposed event site is for up to six events or weddings conducted over the year. The wedding events will be temporary in nature and practice. The existing land use pattern of the area is single-family dwellings with some farm use occurring, as well as some dry land. Staff finds that the temporary nature of the events/weddings will have no impact on the land use pattern of the area. The farm use in the area will continue as currently conducted, which is mainly grass hay and livestock raising and grazing (pasture). Staff finds that the proposed event/wedding site and activities meet this criterion. Staff notes that the applicant's pumpkin patch operation, approved under application nos. CU-03-25/SP-03- 20 as a commercial activity in conjunction with farm use, is not subject to the limitation on agri- tourism or other commercial events. h. Must comply with ORS 215.296. FINDING: Oregon Revised Statutes 215.296, Standards for approval of certain uses in exclusive farm use zones, has two criteria which apply to the proposed use. They are: (1) A use allowed under ORS 215.213(2) or 215.283(2) may be approved only where the local governing body or its designee finds that the use will not: b. Force a significant change in accepted farm or forest practices on surrounding lands devoted to farm or forest use: or c. Significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use. FINDING: None of the properties in the area surrounding the subject property are in forest use. There are many properties in farm use, including properties adjacent to the subject property in all four directions. The main farm use in the surrounding area appears to be grass hay, with livestock raising and grazing occurring on lands devoted to pasture. Staff finds that conducting up to six (6) events/weddings on six (6) calendar days for up to 12 hours per event on the applicant's property in a year will not force a significant change in these farm practices, or LUP-12-4, Duggan Page 16 • /* - i _ Ill significantly increase the cost of accepted farm practices. Staff believes that existing farm uses will not be impacted by the events/wedding and that the events will not have any adverse impact on the hay operations, livestock or grazing activities. Staff finds this criterion is met. i. Limited Use Permits approved under this section expire two years from the date of approval. j. Limited Permits may be renewed for an additional two years subject to: i. An application for renewal;and ii. Demonstration of compliance with conditions that apply to the limited use permit and applicable provisions In this section, DCC Chapter 18.16.042. FINDING: The approval for LUP-12-4 would be valid for two years from the date of approval. The date of approval would be after the review process is completed, including all appeals. The possibility for renewal exists, based on submittal of an application, and findings made demonstrating compliance with the conditions of approval as well as the then-current Deschutes County Code and state law. Staff finds this criterion is met. 4. The area in which the agri-tourism or other commercial events or activities are located shall be set back at least 100 feet from the property line. FINDING: The commercial events or activities areas all are at least 100 feet from the property line, as evidenced by the site plan drawing and air photo in the record. The only exception to this is the entrance driveway into the site, which is closer than 100 feet at the front of the property. Staff finds that the entrance road is not part of the "activities" of the event/wedding venue site. Staff finds this criterion is met. 5. Notification of agri-tourism and other commercial events or activities. a. The property owner shall submit in writing the list of calendar days scheduled for all agri-tourism and other commercial events or activities by April 1 of the subject calendar year or within 30 days of new or renewed limited use permits, if after April 1, to Deschutes County's Community Development Department and Sheriff's Office, and all property owners within 500 feet of the subject property. b. The list of calendar dates for all agri-tourism, commercial events activities may be amended by submitting the amended list to the same entities at least 72 hours prior to any date change. c. If such notice is not provided, the property owner shall provide notice by Registered Mail to the same list above at LUP-12-4, Duggan Page 17 r� . _ / _ ��\ least 10 days prior to each agri-tourism and other commercial event or activity. d. The notification shall include a contact person or persons for each agri-tourism and other commercial event or activity who shall easily be accessible and who shall remain on site at all times, including the person(s) contact information. FINDING: A condition of approval is included requiring compliance with these criteria for notification of events. 6. Sanitation facilities shall include, at a minimum, portable restroom facilities and stand-alone hand washing stations. FINDING: The applicant is proposing to utilize two temporary portable restrooms for the property. The applicant will also be required to provide stand-alone washing stations as listed above. Staff finds this criterion is met with the condition of approval that such facilities be maintained for the approved use and be subject to inspection upgrading if required by the Environmental Soils Division. 7. Hours of Operation. No agri-tourism and other commercial event or activity may begin before 7:00 a.m. or end after 10:00 p.m. FINDING: The applicant states that all events will occur and end within the specified hours. Staff finds this criterion is met with a condition of approval requiring compliance. 8. Overnight camping is not allowed. FINDING: The approval will include a condition that no overnight camping will be allowed. Staff finds this criterion will be met with that condition. 9. Noise Control a All noise, including the use of a sound producing device such as but not limited to, loud speakers and public address systems, musical instruments that are amplified or unamplified, shall be in compliance with applicable state reguations. b. A standard sound level meter or equivalent, in good condition, that provides a weighted sound pressure level measured by the use of a metering characteristic with an "A" frequency weighting network and reported as dBA shall be available on-site at all times during agri-tourism and other commercial events or activities. FINDING: The applicant states that all noise and sound associated with these events will be monitored with a sound level meter and kept within the permitted levels allowed under this ordinance. This will be made a condition of approval. Staff finds these criteria are met. 10. Transportation Management. a. Roadways, driveway aprons, driveways and parking surfaces shall be surfaces that prevent dust, and may include paving, gravel, cinders, or bark/wood chips. LUP-12-4, Duggan Page 18 0.1 — la1 • b. Driveways extending from,paved roads shall have a paved apron, requiring review and approval by the County Road Department. c. The parcel, lot or tract has direct access as defined in DCC Chapter 18.16.042(B)(3)(c). d. Adequate traffic control must be provided by the property owner to address the following: i. There shall be one traffic control person for each 250 persons expected or reasonably expected to be in attendance at any time. ii. All traffic control personnel shall be certified by the State of Oregon and shall comply with the current edition of the Manual of Uniform Traffic Control Devices. FINDING: The subject property has direct access to NE Smith Rock Way, which is a paved County road. This will require a paved driveway apron under "b" above. The driveway into the site is a cinder surface, and the parking area in front of the barn is wood chips, which will prevent dust from becoming a problem. The approval will be subject to the requirements for adequate traffic control under"d(i and ii)" above. 11. Health and Safety Compliance e. All permanent and temporary structures and facilities are subject to fire, health and life safety requirements, and shall comply with all requirements of the Deschutes County Building Safety Division and the Environmental Soils Division and any other applicable federal, state and local laws. f. Compliance with the requirements of the Deschutes County Building Safety Division shall include meeting all building occupancy classification requirements of the State of Oregon adopted building code. FINDING: The structures on the site, if used for the anticipated events, must meet all fire, health and life safety requirements. Staff finds this criterion is met and imposes a condition of approval that all permanent and temporary structures and facilities comply with all State of Oregon adopted building code requirements and all Environmental Soils Division requirements. 12. The maximum number of people shall not exceed 500 per calendar day. FINDING: The applicant states that the average attendance is expected to be well below the 500 limit. Staff finds this criterion is met, and imposes a condition of approval that specifies no more than 500 people for all parts of any particular event or wedding, including any catering service, is permitted. 13. Agri-Tourism and other Commercial Events or Activities shall not be allowed: g. Within the County adopted big game winter ranges during the months of December through March. LUP-12-4, Duggan Page 19 1®\ h. Within the County adopted big game migration corridors during the month of April and during the months of October and November. i. Within the County adopted sensitive bird and mammal habitat areas as defined in DCC 18.90.020, unless a site has had no nesting attempt or the nest has failed, as determined by a professional wildlife biologist in May of the calendar year in which the application is approved, unless a site has had no nesting attempt t or the nest has failed which could be determined in May by a professional wildlife biologist. FINDING: The subject property is not located within any big game winter range, big game 1 p P Y Y gg g migration corridor, or sensitive bird and mammal habitat area. Staff finds this criterion is met. 3. Section 18.16.043, Single Permit A. The maximum number of agri-tourism and other commercial events or activities on a lot, parcel or tract may not exceed the total number of commercial events allowed by any individual land use approval, including a winery authorized under DCC 18.16.038(B), and events, outdoor mass gatherings or extended outdoor mass gatherings authorized under DCC Chapter 8.16. The following permits may not be combined: 8 gp y 1. Agri-tourism and other commercial events or activities under DCC 18.16.042. 2. Winery under DCC 18.16.038(B), 3. Events, outdoor mass gatherings, extended outdoor mass gatherings, parades or funeral processions authorized under DCC Chapter 8.16, 4. Home occupation for commercial events or activities. FINDING: The applicant is proposing up to 6 events/weddings on the site. The applicant's pumpkin patch use, approved under application nos. CU-03-25/SP-03-20, is not subject to the above limitations. Staff finds this criterion is met. 4. Section 18.16.060. Dimensional Standards. E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: The applicant is not proposing any new structures, or any additions to existing structures. Therefore, this standard is not applicable to the limited use permit. 5. Section 18.16.070. Yards. A. The front yard shall be a minimum of: 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a LUP-12-4, Duggan Page 20 r' _ / ,�71 collector street, and 100 feet from a property line fronting on an arterial street. B. Each side yard shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with side yards adjacent to property currently employed in farm use, and receiving special assessment for farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with a rear yard adjacent to property currently employed in farm use, and receiving special assessment for farm use, the rear yard shall be a minimum of 100 feet. D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: The applicant is not proposing any new structures or additions to existing structures. These setbacks are not applicable to the limited use permit. IV. CONCLUSION: Based on the foregoing Findings, staff concludes the proposed limited use permit can comply with the applicable standards and criteria of the Deschutes County zoning ordinance if conditions of approval are met. V. DECISION: APPROVAL, subject to the following conditions of approval. VI. CONDITIONS OF APPROVAL: 1. This approval is based upon the application, specifications, and supporting documentation submitted by the applicant. Any substantial change in this Limited Use Permit will require review through a new Limited Use Permit application. No more than six (6) commercial events shall be conducted each year beginning on the date of this approval. 2. The six (6) commercial events shall be limited to six (6) calendar days each year, excluding set-up and take down. No activity for a commercial event shall be conducted before 7:00 a.m. or after 10:00 p.m, and shall be limited to a maximum of 30 consecutive hours. 3. Prior to initiation of use, the applicant shall: a. Provide in writing a consent to allow law enforcement, public health, fire control officers and code enforcement staff to come upon the premises for which the Limited Use Permit has been granted for the purpose of inspection and enforcement of the terms and conditions of the Permit, and Chapter 8.08 of the county code, noise control. LUP-12-4, Duggan Page 21 yn .� / _..l • b. Provide notification of the events/weddings as prescribed under DCC 18.16.042(C)(5). c. The sanitation facilities shall be reviewed and approved by the Environmental Soils Division prior to the first event, and shall include at a minimum portably restroom facilities and stand-along hand washing stations. The Environmental Soils Division may require additional sanitation facilities if the number of expected attendees exceeds the maximum capacity of the permanent, existing on-site facility. d. Install a paved apron from NE Smith Rock Way for the driveway entrance. 4. The noise emanating from the site shall at all times meet applicable state regulations. A standard sound level meter or equivalent, in good condition, that provides a weighted sound pressure level measured by use of a metering characteristic with an "A"frequency weighting network and reported as dBA shall be available on-site at all times during the events/weddings. 5. All lighting on the subject property shall be required to comply with Chapter 15.10 of the Deschutes County Code, the Outdoor Lighting Control Ordinance. All exterior lights shall be sited and shielded so that no direct light projects off-site. 6. Solid waste shall be disposed of at an approved landfill. 7. One traffic control person, certified by the State of Oregon, shall be required for up to the first 250 persons in attendance at the site, including any persons involved in conducting the wedding. A second traffic control person shall be required if more than 250 persons are reasonably expected to be in attendance at the site, including any persons involved in conducting the wedding. 8. No more than 500 people shall be in attendance for any event/wedding at the site, including persons involved in conducting the event/wedding and caterers. 9. No overnight camping shall be allowed. 10. Catering is subject to licensure and inspection at the caterer's base of operations only, including transportation vehicles and equipment per Oregon Administrative Rules Chapter 333, Division 150. Food prepared on site requires a Public Health plan review through Deschutes County Environmental Health, and obtain a Foodservice License. 11. All permanent and temporary structures shall comply with the State of Oregon's adopted building code and the Deschutes County Building Safety Division's fire, health, life g Y g Y safet Y. accessibility, and occupancy requirements at all times. 12. Agriculturally exempt structures are prohibited from occupancy by the public. 13. Water served to the public/guests must be from an approved water system that meets the Oregon Public Water Drinking Program requirements. LUP-12-4, Duggan Page 22 /7 1 — /... <f 7 VII. DURATION OF APPROVAL:, The applicant shall complete all conditions of approval and initiate the proposed event facility within two (2) years of the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the County Code, or this approval shall be void. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION pa Written by: Paul Blikstad, Senior Planner A); Reviewed by: Nick Lelack, Planning Director Dated this 23rd day of August, 2012 Mailed this 23`d day of August, 2012 LUP-12-4, Duggan Page 23 Print Map Page 1 of 1 ! iL±_ 'r� - 4 ;�!:y6y C' « rr '"K s - pw.. ,.n, _r ,N,l...._. k y ✓• d° t _•___._IM12' .__.. N-SM! „„!, (i Y,$Sf'�. tai 'a,Sy�t t cs r f F yLL�: � r, r. I f ✓�i 4, 'bt` ry. Irf'y A 4� I? 1 �t ' 7� ( , : J ;ems w <�. :I Y ��r • �..,- s f i! i f nyy N d } ; .yy� —MIN ` w I}� n F da eV—S y � S r v r -.. - 1 il I ] 1 Q.o-rr'S W: , 'a i f k—::;,... .„--..":-- L:mm4+.492)x.209flmaceasr artvM+la+�n,r,...1. f . . + Scale 1:22,445 ' I r-- I t : I in°1,870 ft Fi le, Nos LUP- 12.- q MitimeJ DI. rn Djgan 3s56, NE sm,•#4 goal 1,4100tireffigiapnlie, gq . g3a'4, 400 1 . . http.//lava5.deschutes.org/mox5/indexintranet.cfm.action=mox52_view_printableinap 8/1/2012 L. . _A •••■• /_ rf i K COOPER CONTRACTING VACATION/WEDDING VENUE RENTAL AGREEMENT Guest Name(HEREINAFTER"Guest") Home Phone: Address: Work/Cell phone: 1- City,State and Zip Cod Email Address: Total Number of Occupants Arrival Date: Departure Date: RENTAL PROPERTY INFORMATION Mailing Address: Property Mgmt.Contact: PO BOX 365 Paul Cooper Monument,Oregon 97864 541-934-2423/fax:541-934-2307 Rental Rate: $400.00 per nt.X nights. _ $.00 Cleaning Fee$ 250.00 =$250.00 Lodging Tax: .09% x$ .00 =$ .00 Animal Charge:$100.00 per pet W .00 Deposit for reservation hold/security =$500.00 TOTAL DUE: Including security/reservation deposit.Refundable $LOS THIS VACTION RENTAL AGREEMENT(this "Agreement") is between Paul & Loreen Cooper("Owner") and Terry Furst 1. Rental: Owner agrees to rent to Guest, and Guest agrees to rent from Owner, Paul Cooper/Loreen Cooper Ranch between 2. Check IN: Wed.4:00 pm unless otherwise agreed 3. Check Out:Sun.11:00 am unless otherwise agreed. 4. Full payment due 60 days with in occupancy unless other wise agreed 5. NOISE ORDINANCE: Must have outdoor music turned off by 10:00 pm and not to exceed a reasonable level 6. DO NOT:Park on the grass 7. if anything is missing or broken it will be deducted from the deposit rx F (la 8. Dumpster on site: If more than one dumpster load, extra charge ($35.00) will be deducted from deposit. 9. No RV's,campers etc. 10. Garbage: You must pick up and dispose of all trash this includes cigarette butts. I we have to pick up trash you will be charged accordingly. 11. IF RULES ARE NOT FOLLOWED YOU WILL FORFIET YOU DEPOSIT 12. If anything is broken or missing you will be billed or it may be deducted from deposit Confirmation of Reservation:Payment for Rental: This Agreement,fully signed by Guest, must be received by Owner with the reservation deposit or full payment within 10 days after making the reservation, or the reservation will be canceled without notice at the discretion of Owner. The rental must be paid in full at least 60 days prior to occupancy unless otherwise agreed by Owner. If the rental is not paid in full by this date, then the reservation may be cancelled without notice at the discretion of Owner, and Guest will be subject to the cancellation policy set forth in Section 4 below. Owner accepts money orders,cashier's checks,certified checks (if received more than 30 days prior to occupancy) a $50.00 service fee will be charged for all returned checks. 13. Deposit: The reservation deposit will automatically convert to a damage/security deposit upon guest's arrival at Cooper Ranch. If all rules aren't followed you may forfeit your deposit The damage/security deposit will be returned to Guest within 20 days after Guest's departure; subject to Owner's right to use the damage/security deposit to pay for any damage, over abundance or trash, not following discussed regulations of property to Cooper Ranch caused by Guest or his/her family or invitees. if Owner does use the deposit to pay for damage caused by Guest, Owner will provide Guest an itemized reconciliation of that use. The amount of the damage deposit is not intended to limit the Guest's liability for damage to Cooper Ranch, and Guest agrees to pay for any and all damage to Cooper Ranch caused by Guest or hi/her family or invitees, including, but not limited to breakage, theft, unnecessary maintenance and excessive what would be ordinary upon P on departure. beyond 14. Cancelation policy: Please contact Owner as soon as possible in the event you must cancel or change your reservation. All cancellation or change requests must be in writing and are effective when received by Owner. If you cancel your reservation more than 45 days prior to your occupancy,you will forfeit your reservation deposit but you will be entitled to a refund of all rental fees and other charges. If you cancel your reservation less than 45 days prior to your occupancy, you will forfeit your reservation deposit and all advance rental fees and other charges of Owner is not able to re-rent Cooper Ranch for the same time period. Owner will make good faith efforts to re-rent Cooper Ranch in the event of a cancellation, gut given the unique nature of Cooper Ranch; re-rental cannot be promised or assured. Shortened stays at Cooper Ranch shall be treated as a cancellation of the occupancy period mot used by Guest. 15. Travel insurance: To protect against the loss of your rental payments, travel insurance is strongly recommended. Contact your local insurance agent about travel insurance policies and complete his/her vacation plans for any reason whatsoever. -2' Coo, 2) 16. Right of Entry: Owner reserves the right to enter Cooper Ranch, at its sole discretion, at any time during Guest's occupancy to investigate disturbances, check compliance with Rule and Regulations and to make needed repairs. 17. Indemnification: Guest agrees to indemnify, defend and hold Owner and affiliated entities(i.e. Cooper Contracting, etc.) harmless from and against any losses, liabilities, claims, demands, damages, thefts, costs or expenses whatsoever arising from or related to or in connection with use of Cooper Ranch by Guest, his/her family and any invitees of Guests, except for any caused by the willful or intentional,acts of Owner. 18. No Responsibility: Owner is not responsible for events or occurrences beyond its control, whether man made or natural. Water shortage, flooding, loss of power, water or plumbing system breakdowns, pest infestations, appliance malfunctions, telephone, internet service or e evacuations of the area or equipment failur , mandatory erru interruption of heating due to service o p oun due to fires or othe r potentially dangerous Y B erous situations by State of Oregon or Deschutes County will not result in a refund. 19. Rules and Regulations: Guest must comply, and cause his/her and invitees to comply,with the Rules and Regulations for Cooper Ranch, which are attached to this agreement, and incorporated by reference. 20. Miscellaneous: 211.1 This Agreement contains the entire agreement for the parties with respect to the rental of Cooper Ranch and the other matters covered by the terms of this Agreement and supersede all prior written and oral negotiations and agreement. Any modifications, changes, additions, or deletions to this Agreement must be approved in writing by Owner and Guest. 20,2 Any provision of this Agreement that is held to be invalid shall not affect the validity or enforceability of any other provision iri this Agreement. Failure of either party at any time to require performance of any provision of this Agreement shall not limit the party's right to enforce the provision. Waiver or any breach of any provision shall not be a waiver of succeeding breach of the provision or a waiver of the provision itself or any other provision. 20.3 This Agreement may not be assigned by Guest and any attempted assignment of the Agreement by Guest shall be void. Guest may not sublet all or any part of Cooper Ranch during the term of this Agreement. 20.4 This Agreement shall be governed by and construed in accordance with the laws of the state of Oregon. Guest hereby submits to venue in the Circuit Court of Deschutes County, Oregon in the event of any litigation arising out of this Agreement or Guest's use of Cooper Ranch. If any arbitration or litigation is instituted to interpret, enforce, or rescind this Agreement, including but not limited to any proceeding brought under the United States Bankruptcy Code,the prevailing party on a claim will be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing party's reasonable attorney's fees and other fees, costs, and expenses of every kind, including but not limited to the costs and disbursement specified in ORCP 68 A (2), incurred in connection with the arbitration,the litigation, any appeal or petition for review,the collection of any award, or the enforcement of any order, as determined bay the arbitrator or court, in addition to all other sums provided by law. 4- (f - 5) I have read and agree to comply with the terms of this Agreement and the Rules and Regulations for Cooper Ranch. Guest Signature: DATE: fix . — (31' Cp. ccavi54Pz 9040 Qu'l--k-At „. 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Minimum stay: updated at: intarri Show phone 3 nights ss WPehee,chair access number s up__ 1 description Property ..._ ' ranch home. ft has 4Itbis the perfect getaway tedfodown a long private and ,, A q This is a spacious rustic a arid game looking indgrooform. WsWaeneadraer2e,w5liotbhczainthm, Sinlreuaeptefsamiilyt,nclo5rpaor'radtehdarrsievtelraweragatye, of dining, shopping — raoroehm.nting trips. Phone number spacious kitchen living family insures the pea e off ily reunion, weddings,golf vacations, ,,,,,„, wddicng td quiet you OMB No.1545.0074 (Form 10 0)_ SCHEDULE Profit or Loss From Farming Attach to Form 1040,Form 100NR,Form 1041,Form 1065,or Form 1065-B, 2�7 Department of the Treasury Attachment Internal Revenue service (99) Information about Schedule F and its separate instructions is at www.irs.gov/scheduief. sequence No, 14 Name of proprietor Social security number(SSN) Paul Cooper A Principal crop or activity B Enter code from Part IV C Accounting method: 0 Employer ID number(EIN),(see instr) Hay 111100 ACash Accrual — _ E Did you'materially participate'in the operation of this business during 2014?If'No,'see instructions for limit on passive losses 'X Yes 0 No F Did you make any payments in 2014 that would require you to file Form(s) 1099(see instructions)" [Yes )( No G If'Yes,'did you or will you file required Forms 10997 D Yes —No Paj ` iri:warm Income -- Cash Method.Complete Parts I and II(Accrual method.Complete Parts II and Ill,and Part I, line 9.) 1 a Sales of livestock and other resale items (see instructions) la bCast or other basis of livestock or other items reported on line la lb ..,...•.,_._ c Subtract line lb from line la lc 2 Sales of livestock,produce, grains, and other products you raised 2 137,237. 3 a Cooperative distributions (Form(s) 1099-PATR)... 3a' 3 b Taxable amount 3b 4a Agricultural program payments (see instructions).. 4a 4bTaxable amount 4b 5a Commodity Credit Corporation (CCC) loans reported under election 5a b CCC loans forfeited I 5131 , 5 c Taxable amount 5c 6 Crop insurance proceeds and federal crop disaster payments(see instructions) a Amount received in 2014 I 6a1 1 6bTaxable amount 6b c If election to defer to 2015 is attached,check here.... 6d Amount deferred from 20136d J 7 Custom hire (machine work)income 7 8 Other income, including federal and state gasoline or fuel tax credit or refund (see instructions) 8 9 Gross income. Add amounts in the right column (lines ic,2,3b,4b, 5a, 5c, 6b, 6d,7, and 8). If you use . the accrual method, enter the amount from Part III, line 50(see instructions) ■ 9 137,237. Pait)Ct` .;.;.1 Farm Expenses—Cash and Accrual Method.Do not include personal or living expenses(see instructions). '10 Car and truck expenses(see instructions). 23 Pension and profit-sharing sharing plans 23 Also attach Form 4561 10 11 Chemicals 11 24 Rent or lease (see instructions): 12 Conservation expenses • a Vehicles, machinery, equipment 24a (see instructions) 12 b Other(land,animals, etc) 24b 5,800. 13 Custom hire(machine work) 13 25 Repairs and maintenance 25 9,683. i e 14 Depreciation and section 179 26 Seeds and plants 26 expense (see instructions) 14 153, 634. 27 Storage and warehousing _27 15 Employee benefit programs 28 Supplies 28 24,098. 1 other than on line 23 X15 29 Taxes 29 22,901. 16 Feed 16 30 Utilities _30 24 972 '17 Fertilizers and lime.............. 17 31 Veterinary, breeding, and medicine 31 18 Freight and trucking 18 32 Other expenses(specify): 19 Gasoline,fuel,and oil 19 a Bank Charges _32a 54. 20 Insurance (other than health) 20 b License and fees 32b 570. 21 Interest: ".'-_..,- c Office expense 32c 1,250. a Mortgage (paid to banks, etc) 21.a< 15,191.^ d VRBO costs 32d 1,100. b Other 21 b 988, e 32e 22 Labor hired(less employment credits).... 22 f 32f 33 Total expenses.Add lines 10 through 32f. If line 32f is negative, see instructions 0 33 260,241. 34 Net farm profit or(loss).Subtract line 33 from line 9 _34 —123,004. If a profit, stop here and see instructions for where to report. If a loss,complete lines 35 and 36. — 35 Did you receive an applicable subsidy in 2014? (see instructions) Yes ©No 36 Check the box that describes your investment in this activity and see instructions for where to report your loss. a © All investment is at risk. b u Some investment is not at risk. BAA For Paperwork Reduction Act Notice,see the separate Instructions. FDIZO212L 12/23/14 Schedule F(Form 1040)2014 October 28, 2015 Board of County Commissioners of Deschutes County 1130 NW Wall Bend, Oregon 97701 Attn: Anthony Debone, Chair Alan Unger,Vice Chair Tammy Baney, Commissioner RE: De Novo Appeal on Application 247-15-000001-LUP (247-15-000298-A) pursuant to Title 22 of the Deschutes County Code—Paul and Hana Cooper,Applicants Dear Commissioners: While at the hearing on Monday I intended to provide testimony about and clarification of our tree growing operation on the subject property. Given the complexities of the issues, and the time constraints, we never got to this particular issue. Thank you for leaving the record open for such testimony. A little history with regard to the subject property may go a long way in helping you to understand the tree growing operation. Early on, in about 1984, I became a reforestation contractor and worked with a partner. In 1988, I went out on my own as an independent contractor. At the end of each season there were saplings left over and rather than watching them be tossed away,we accepted the excess trees and began planting them on our Bend property. The trees included Ponderosa, Lodge Pole and Larch, and we planted a few hundred each year. At that time all the trees were planted in the ground. We nurtured them,year round, by watering them,weeding them,fertilizing them at least annually, and spraying them for pests when needed. Tree farms don't require daily maintenance. In 1993,we ordered 2,000 bare-rooted Aspen whips to add to the farming business and they were planted in the ground. After that, we learned that planting all of the trees in the ground wouldn't allow us to have a year round tree selling business. Because so,we started putting some of the trees in pots and then added new varieties such as Hornbeams, Big Leaf Linden, Black Cherry and Pines. Incidentally, not all of the trees we have were grown along Simon Road, as the Winston Ranch HOA seems to believe. In fact, at least three quarters of the trees were planted on the East side of the property,where they couldn't have even been and can't be seen by Winston Ranch property owners. In about 2003, I started a landscaping business and that's when we started bringing in nursery stock which came to the subject property in pots. However, unknown to the neighbors at Winston Ranch, any nursery stock that was brought in was brought in only because it was ordered for specific landscaping jobs that had already been bid on and won. The stock would be delivered to our Bend property and then relatively shortly thereafter moved and delivered to the landscaping site. In 2007, I applied for a nursery permit because I had so many trees on the property, in pots and in the ground. That permit was granted (over the objection of the very same Winston Ranch HOA). Some of the trees each year were transferred from soil to pots. We did and do have trees of all sizes and they are of varying ages. After all these years, most of the trees are mature and of course look fully grown but are of varied ages and various heights. The neighbors were correct that we thought the tree business and nursery might make our property more appealable to buyers. I was wrong. The property never sold. That same year, in 2007, I bought 600 acres in Monument,Oregon. Contrary to what Ms. Moskowitz represents in her recent letter,the only trees on the Monument ranch seen in the photo she submitted are wind block trees. Ms. Moskowitz presented a picture showing a part of the Monument property. One of the things circled which she believed to be a tree farm is my vegetable garden, and the other thing circled is a fruit orchard with 45 fruit trees. Pictures of the Monument property have no relevance to this proceeding, but we mention this only because Ms. Moskowitz seems to think that we are raising the trees in Monument and not at the Bend property. She is wrong. Since our move to Monument, we had a caretaker living on site at the Bend subject property. The caretaker oversaw the operations of the trees and hay. Last year, when my daughter, co-applicant, Hana,graduated from college she moved into the house on the back lot and took over the caretaking of the Bend ranch,the 54 acres on 2 lots. Being a farmer during these past years has become more and more difficult. One of the reasons we started selling trees was to increase the farm income. And, in fact,we are able to supplement the farm income from tree sales. When we couldn't sell the home/ranch in Bend on the subject property, we were asked if we'd ever use the property for weddings. People were asking us if they could use the ranch property for a rural wedding site. It made sense to allow such events for several reasons. First,the agri-tourism statute made it possible. Second, it provided supplemental income to the farm income. Third, it was fun to see people getting to enjoy the private setting to make life time memories through a wedding. I know that the Winston Ranch HOA and letters submitted at their request speculate about the trees and the farm use on the subject property, but given the general tone of the letters(and the form of some of the letters, which appear to be from a canned sample letter), it seems that an issue from the past may be fueling their fire rather than actual concerns regarding the permit application. Neighbor disputes have no place in this process. They need to be kept separate. The oppositions concerns regarding noise,traffic, etc. have in my mind been addressed by the HO and Staff and we've agreed with the proposed conditions of approval. However, most of their concerns about the trees, in particular, are based on speculation and not fact. Their observations are just that,their observations. However, if they expect to see people working in the trees daily,or even regularly, they don't understand what it takes to grow and raise trees. Trees simply don't take a lot of work. We wouldn't expect any neighbors to see much activity. We have 54 acres, which is private, and fenced. And, as said above, not all of the trees were planted along Simon Road, which is where the Winston Ranch homeowners access their farms. And, unless they specifically asked us(which they didn't), how would they know any of the history provided above? We get that the HOA objects to the proposed permit, but their frustrations with me aren't relevant to whether or not we meet the criteria for such a permit. I haven't even lived at the Bend Ranch house for a long time, but you can tell from a few of those in opposition by the hostile nature of their letters that they are apparently still mad at me for something I did or didn't do in the distant past. I hope this letter helps you to better understand the tree operation and the facts surrounding the tree farming on the subject property. Thank you, Sharon Ross From: CUREY Sally A* DCBS <Sally.A.Curey @oregon.gov> Sent: Sunday, November 01, 2015 8:41 PM To: Sharon Ross Cc: 'loreencooper @centurytel.net' Subject: Cooper Application Attachments: HOA Letters.docx Hi Sharon. Here is another letter from Paul Cooper. He is submitting this to the Board Members to review in the appeal process. This particular letter addresses the opposition letters and explains why the Winston Ranch folks are angry about the permit. Please get them copies for their records. Paul will be submitting one more letter with exhibits tomorrow, Monday, by 5:00 pm. The exhibits will include 2 letters reflecting the sale of trees from contacts during weddings, a few recipes that will be provided to the wedding attendees that incorporates some of the tree products into the wedding events. Additionally, I expect a few pictures from prior weddings this past summer that show that the trees for sale are in fact being used as backdrops for the formal wedding pictures. Finally, the Coopers will be creating center pieces to be used on the tables for the wedding receptions made from tree products grown on the farm. Paul may have a few other things as well. As always, thanks again for your help. Sally Curey 1 cy:zI N Go 1/4-E A A C T I O N November 2,2015 Deschutes County Board of County Commissioners P.O. Box 6005 Bend,OR 97708-6005 ATTN: BoCC Re: Cooper Commercial Events Application File Nos. 247-15-000001-LUP(247-15-000298-A) Dear Commissioners: Thank you for the opportunity to submit testimony in the above-numbered application. It is my understanding that the.Board raised questions at last week's hearing regarding two of the requirements for obtaining approval to use EFU zoned property for agri-tourism and other commercial events-the "incidental and subordinate" requirement and the"related to and supportive of agriculture" requirement. Both requirements are found in ORS 215.283(4)and in DCC§18.16.042(C)(2)(d). Specifically, it is my understanding the Board had the following questions: 1. If a tract is being put to more than one type of farm use,must the applicant for the commercial events demonstrate that the events are"related to and supportive of"each type of farm use occurring on the property,or only one of the farm uses? 2. If the commercial events are not"related to and supportive of"one type of farm use occurring. on the subject property,can the income from that farm use be counted in determining whether the commercial events are"incidental and subordinate"to the existing farm uses on the tract? 3. If the subject property is part of a tract,can the farm income generated by the parcel upon which the commercial events will not occur be counted in determining whether the commercial events are"incidental and subordinate"to the farm uses? Must the Commercial Events be"Related to and Supportive of' Each Type of Farm Use on the Property, or Only One or More of the Farm Uses? DCC§18.16.042(C)(2)(d) requires an applicant for up to six commercial events on an EFU zoned property to demonstrate that the proposed commercial events: "Must be incidental and subordinate to existing farm use of the tract,and shall be related to and supportive of agriculture." Mailing Address:P.O.Box 230637 •Tigard, OR 97281-0637 Street Address: 11735 S.W. Queen Elizabeth Street, Suite 101 •King City, OR 97224 (503) 620-0258 •FAX(503) 639-6891 •website:www.oia.org This language is identical to the requirements found in the corresponding statutory provisions found in ORS 215.283(4). There is nothing in the language of either the statute or the DCC provision that requires that the commercial events be"related to and supportive"of farm uses occurring on the property. The. language requires that the proposed commercial events be related to and supportive of"agriculture." Had the legislature or the Board intended to require that the commercial events be related to and supportive of the existing farm uses on the tract,they each could have said so,as was done with the "incidental and subordinate"test. But neither the legislature nor this Board chose to require that the commercial events be related to"existing farm uses"on the tract. Rather,the proposed commercial events must be"related to and supportive of agriculture." Nothing in that language ties the commercial events to farm uses that are actually occurring on the subject property. Nevertheless,in past cases,this Board has looked to the farm uses actually occurring on the subject property in order to determine whether the proposed commercial events were"related to and supportive of agriculture." In other words,the Board has treated the,test as requiring the applicant to demonstrate that the commercial events were"related to and supportive of existing farm use of the tract." That's not what the language requires, but is probably an acceptable way to applying the standard. Nothing in the"related to and supportive of agriculture" requirement indicates or implies that the proposed commercial events must be related to and supportive of every type of farm use occurring on the subject property, if the property is being put to more than one type of farm use. Given the breadth of the definition of"farm use" in ORS 215.203 and traditional agricultural practices,it is not uncommon for a property to be used for multiple types of farm uses. For example,Smith Rock Ranch in Terrebonne (Matt and Kendra Lisignoli),one of the few commercial farms in Deschutes County,grows a variety of crops—carrot seed,onion seed,bluegrass seed,wheat, hay,corn,and pumpkins,and a variety of. activities occur daily on the ranch,each of which is part of the"farm use"of the property. An event on the Smith Rock Ranch which focuses on one farm use activity for one of the crops grown by the Lisignolis(e.g.the pumpkin patch in October)is certainly related to the farm use on the ranch,and supportive of that farm use,even if it has no bearing whatsoever on the remaining types of farm uses on the Ranch. Similarly,a commercial event on the Cooper property that utilizes one of the types of farm uses occurring on the property is both related to the Cooper's farm use,and also supportive of the farm use,even if other farm uses on the property are not involved in the events. The events are certainly related to"agriculture,"which is what both the DCC and ORS 215.283(4) require. That is all that the statute and DCC require. To require otherwise is to punish those property owners who make more than one"farm use"on the property. There is no reason to expect that the legislature would intend to draw a distinction between farmers who engaged in only one type of farm use and farmers who utilized their property for multiple farm uses. If a Proposed Commercial Event is Not Related to and Supportive of One Type of Farm Use Occurring on the Property,Does the Income Generated by That Farm Use Count in Determining Whether the Commercial Events are"Incidental and Subordinate"to the Farm Uses.Occurring on the Property? The"incidental and subordinate"test requires that the applicant for the commercial events demonstrate that the events are"incidental and subordinate to existing farm use of the tract." Unlike the"related to and supportive of agriculture"requirement,this language actually ties the proposed commercial events to actual farm uses that are occurring on the tract. In this case,the Coopers are making more than one type of farm use on the tract. Neither the statute nor the corresponding DCC code limit the analysis of"farm use"to only those types of farm uses that are utilized in the commercial events. In other words,the language of both the statute and the DCC requires that the commercial events be"incidental and subordinate"to the"farm use of the tract." The Coopers have more than one"farm use"on the tract. As long as their proposed commercial events are incidental and subordinate to the combined farm use on the tract,the standard has been met. Moreover,an attempt to determine whether the proposed commercial events are"incidental and subordinate"to only those types of farm uses which the proposed commercial events are"related to and supportive of"conflates the two tests,each of which are separate from the other. Nothing in the language of the DCC or the statute appears to allow the tests to be combined. They are separate tests and should be applied separately,as the Board has done in its past event decisions. If the Parcel Upon Which the Commercial Events Will Occur is Part of a Tract,Can the Income Generated by Farm Use on the Other Parcel(s)that Comprise the Tract Be Counted in Determining Whether the Commercial Events are"Incidental and Subordinate"to the Farm Uses? Both the statute and the DCC measure both the"incidental and subordinate"and "related to and supportive of agriculture"tests by the activities occurring on the"tract",not just the parcels that compose the tract. The reason for this is because many farms are composed of multiple parcels that form a tract,and"incidental and subordinate"test is designed to measure the impact that the commercial events will have on the farm as a whole, not the parcel(s)that make up the farm. Thank you for the opportunity to comment. Please enter this letter into the record of these proceedings. Very T Yours, ,„//4e, David J.Hunnicutt President November 1, 2015 Board of County Commissioners of Deschutes County 1130 NW Wall Bend, Oregon 97701 Attn: Anthony Debone, Chair Alan Unger,Vice Chair Tammy Baney, Commissioner RE: De Novo Appeal on Application 247-15-000001-LUP (247-15-000298-A) pursuant to Title 22 of the Deschutes County Code—Paul and Hana Cooper,Applicants Dear Commissioners: Because the scope of issues being addressed by the Board on appeal is unrestricted, we wanted to provide the following testimony and information which addresses the issues/complaints raised by the Winston Ranch HOA letters. My apologies for the length of this letter, but if I am denied this permit, I wanted to make sure the record on appeal is complete. First, we'd like to point out that the there were letters submitted in favor of the proposed permit. Letters in support of the proposal were summited by the Kim, Lynch,Campbell, Foster, Leshaw and Marshall families. They noted that the noise, access and liability issues are clearly manageable, that the farm presents the perfect wedding spot, and that I am an experienced farmer running a "top flight outfit." Mr. Campbell understands that the main source of my income is from farm use. The Fosters were initially concerned but ultimately satisfied that such concerns will be handled, including sound levels and possible fire danger. The Leshaw's confirmed that the issues regarding Simon Road and the music/noise and resolutions for such problems proposed by me were reasonable and agreeable. I believe all if not almost all of the opposition letters came from folks living in Winston Ranch. Some of the HOA letters in opposition alleged that false information was supplied in the attempt to get a quick approval of the permit. Please know that the information which was challenged in the initial permit application was subsequently corrected and/or clarified. There was no intention to mislead anyone or lie about the facts. Any information that was submitted at the time of the initial application that was questioned or unclear was corrected and clarified to Mr. Blikstad's satisfaction and Mr. Blikstad found that the concerns were all addressed and/or resolved by the time of the initial hearing. Mr. Blikstad did recommend clarification of income, but aside from that, he recommended approval of the permit with conditions of approval. The most substantive letter was submitted by Mr. Renyer as President and on behalf of the Winston Ranch HOA. Interestingly,while he lives in Winston Ranch, he admitted that noise wasn't a major factor for him. His primary concern centered on the potential use of Simon Road for access to attendees of the weddings. As the record already establishes, access to our property for the weddings is off of Old Bend Redmond Highway, not Simon Road. The Simon Road issue won't be addressed further in this letter. Mr. Renyer did admit that I made contact with some of the Winston Ranch homeowners and that I was "courteous" and gave assurances to resolve their/NOAs concerns. Addressing Mr. Renyer's stated concerns in total will address most of the concerns of the whole. Mr. Renyer noted his dislike that I had weddings on my property without a permit prior to this past summer. He was right. I did have weddings for a few summers, and then realized I needed a permit. He was upset that I didn't contact neighbors and give prior notice of this permit request, but we were advised by Staff that notice was neither required nor necessarily helpful in this type of process. An additional concern was that the approval of this permit request would negatively affect his property value, but there is no evidence that approving a permit allowing 6 weddings a summer would have any effect on neighboring property values. Ultimately, Mr. Renyer's letter makes apparent the reason why the folks at Winston Ranch might not personally support my permit request. As noted in his letter, I didn't voluntarily agree to contribute to the Simon Road improvements.The request was made years ago, and prior to my moving to Monument. It is interesting to me, however,that the letters in opposition specifically admit that not all of the Winston Ranch home owners have contributed to their own Simon Road improvements. Why would they expect me, a neighbor not part of their Winston Ranch HOA,to pay for improvements on their road (simply because we used that back road from time to time)when their own HOA members aren't paying for improvements? This issue does seem to be the fuel for their at times hostile objection to my permit. Mr. Renyer raised issues of potential liability for accidents and trespassing, but I know of no legal basis for such a concern or why the Winston Ranch HOA would be liable for anything if this permit is granted. To be clear, we do not discount the concerns that the Old Bend Redmond Highway may be dangerous and that the traffic coming into our property would be increased during the weddings. But we aren't talking about hundreds of cars daily. We are talking about 50 to 75 cars at most coming into the property(not all at the same time or exiting at the same time)and on only 6 Saturdays out of the year. The stated concerns about the weddings causing traffic backup for miles is absurd, Other issues raised by Mr. Renyer are clearly personal, without merit and have no relevance to this permit application. He asserts safety concerns for folks sitting on bales of hay. How is sitting on a bale of hay dangerous? Many of Mr. Renyer's complaints are based on either misunderstandings of how my farm operates, challenges to the facts,or faulting me for not completely understanding how to go about submitting proof to support my permit request. His last letter accuses me of falsifying data. I am not a college educated man. I work hard and try to make a living by farming. I have no experience in politics, accounting, tax forms or the like and I relied heavily upon recommendations or advice from Staff in submitting my permit. During the process I clarified and corrected data to make sure that we accurately represented the tonnage of hay produced only the subject property. I did this to make sure we accurately and corrected represented the data and income from the property and for no other reason. Needless to say, I learned a lot in this process and will make every attempt in the future to keep better records of income from both the tree and hays and make sure we can track what is produced only on this property. We do harvest a lot of hay, and while the initial application indicated 1,000 tons were harvested by my business, which is true, the application didn't make clear how much of that was grown and harvested on the property subject to the permit request. As stated,we have corrected that information. We didn't put 1,000 in an attempt to intentionally mislead. We simply neglected to break down the total hay production to that grown and harvested on the subject property in Bend. It doesn't help that the Schedule F tax form asks for"farm income", and not the total farm income per line item of product grown and harvested on the land. The total hay grown and harvested on the Bend property was accepted to the Hearing Officer's satisfaction and we agree with her findings in that regard. All in all I believe we have addressed Mr. Renyer's concerns. The letter submitted by the Moskowitz family brings up an issue not raised by anyone involved directly in the process to date. Neither Staff nor the Hearing Officer made any reference or noted any concern about the fact that the application for the permit involved 2 adjoining tax lots. There is nothing in SB 960 nor the legislative history, let alone the statutes or rules,that require that the permit apply to only one tax lot. To suggest now that that might be a basis for non-approval of a permit is prejudicial to me and would cause a financial hardship. I've spent almost what I make in one year worth of weddings on this process so far. Were we advised by any method that this issue would or could be a basis for denying the permit at the appeal level,we would have dropped this application and started over. Instead, we have now paid an enormous amount of money($5,000 for the initial hearing and another $7,500 for the prior attorney)to get this far. If a permit application may only involve one tax lot at a time, notice of such should be required to all potential applications prior to the appeal process. The Moskowitz letter makes assumptions about how much hay I produce on this property, without any knowledge of the facts. They assumed that storing hay is a fire hazard, which if true would present hazard issues for every hay farmer in America. And, if it were a hazard, it comes with or without the weddings. He assumes that the nursery permit is still active, and asserts that I have more than one business on this EFU property, but, again, he doesn't know the facts. The nursery permit is not active. He disagrees with my gross income statement, but how would he know how much money I make on my farms? We know that Moskowitz's take daily walks along Simon Road and have personal knowledge that the trees were in fact planted both in the ground and in the pots. To say otherwise is a lie. They know we've planted trees during the past 7 to 8 years. He uses google earth pictures to substantiate his conclusion that we don't have enough parking. Yet, he hasn't come on to my property, nor does he have access to my property. Clearly, based upon other pictures and the Staff site visit,we have plenty of room for the attendee vehicles. Moskowitz simply doesn't want us to have weddings on our property and unfortunately it appears they are misrepresenting their observations and will make up anything and speculate to oppose the permit. This is disturbing to us. The Newman letter voices concerns regarding noise, liability for excessive traffic and his fear of mixing commercial with country living. Everyone understands that people move to the country for peace and quiet. However,SB 960 allows for such a permit on my 54 acres. It's legal to have these weddings if the permit is approved and all conditions of approval are met. The noise and traffic issues are addressed by conditions of approval. The Farmer letter notes concerns that we would have more than 6 events. However, we don't want more than 6 events and the permit is for up to 6 events, not more. The Farmers subsequently withdrew their opposition. The Williams letter simply alleges that my application doesn't meet the requirements. He too cites Google Earth and questions the 1,000 tons of hay figure in the initial application (prior to clarification), noise control, and potential access via Simon Road. These issues have been clarified and/or resolved. The Gerloff letter notes their concern with the hours of operation (how late the wedding parties will go),the serving of alcohol, and the safety and security of the neighborhood. The rule provides that the weddings events must stop by 10:00 pm. Alcohol liability shouldn't be of any legal concern to the neighbors. However,anyone drinking and driving poses a hazard on the road. There does not appear to be any legitimate concern for the safety and the security of the neighborhood. In fact, there is no real neighborhood involved in this situation. The wedding site is in the middle of 54 acres. The Phillips letter is interesting. Mr. Phillips is a land planner/architect who doesn't even currently live in Winston Ranch but has renters in his Winston Ranch home. He wasn't even aware of SB 960 and the fact that this type of a permit is available. The Johnson letter implies we can't meet the requirements of the permit because weddings don't qualify as agri-tourism. Johnson is obviously misinformed. They state that they have seen little in the way cultivation or tree sales, but unless they are monitoring our property hourly or daily, how would they? In fact,the tree sales are off and on throughout the year and not daily or even weekly. There would be no such regular"cultivation" as they suggest. The Hills/Powell letter complains that weddings aren't sales events. I don't know what that means. They complain about the potential noise, alleged use of firearms, use of the highway, alcohol impaired drivers,fire, smoke, candles, lanterns, hot car exhausts, event monitoring, and they don't want this permit to be approved because they don't want others to do it either. They simply don't like the new law. Who said anything about firearms and candles, or lanterns? Most of their concerns have been addressed above, but they take it one step further and suggest that hot car exhaust will cause fires on our property. They are reaching. The Ashley letter references noise and traffic concerns, but mostly his belief that weddings should be in commercial areas and not on farms, and asserts that weddings on a private ranch somehow damages the neighborhood. His letter simply addressed his dislike for the idea of such a permit. The Thompson letter reiterates concerns about the noise and traffic issues, health and safety concerns, and the worry that others in the area might apply for a similar permit. Aside from these already addressed issues, he is worried about the environmental impact on local wildlife. What possible environmental impact will there be on wildlife? If we have to prohibit rice throwing, we are certainly willing to do that as a condition. The McHendry letter asserts that allowing weddings on my 54 acres farm will lessen neighboring property values and creates a nuisance. How? He complained he didn't get notice, but notice was sent. He asserts that the area is 'more densely" populated than meets the eye. What? He asserts that a total of 6 events will be hard to control. They haven't been hard to control so far. And, to the best of our knowledge, NONE of these Winston Ranch residents have filed formal complaints about prior weddings on our property. He argues that the weddings don't lead to hay sales, but he clearly is wrong because I have and do make money off of contacts from weddings from both tree and hay sales. His opinion is based upon assumptions and misinformation, not to mention bias against me and the permit idea. The Nemeth letter asserts that Winston Ranch will be adversely affect by the noise,traffic and increased "safety concerns" for pedestrians. Simon Road is a Small narrow road that borders Winston Ranch and runs North to South along the West end of my property. How does a wedding, whose attendees don't use Simon Road, cause a safety concerns for pedestrians on Simon Road? Access to the subject property for the weddings is off of the Old Bend Redmond Highway, not Simon Road. This is just another absurd allegation. The Brown letter notes concerns regarding traffic and noise level enforcement, but these issues are and can be addressed by the conditions of approval. Mr. Brown submitted a second letter a few days prior to the Board hearing. He is clearly angry that instead of making me cancel the proposed weddings for this summer, I was allowed to go ahead and let the weddings go forward. He clearly would have been in favor of ruining 6 couple's wedding by cancelling their venue at short notice. Nothing will make Mr. Brown happy with regard to this permit application. His letter also reflects his anger at my placement of no trespassing signs on my fences that line my property. He seems to think that our signs are preventing him access to his irrigation canal,which is ridiculous. I've had no trespassing signs on our fences for years, and that hasn't stopped anyone from Winston Ranch from accessing their canal to date. I haven't violated any law by putting up no trespassing signs. Mr. Brown also submitted comments in a letter the day after the hearing questioning my ability to produce so many tons per acre. Clearly, his bias against me and my farm are evidenced in his letters as he will say practically anything to get this permit denied. What other reason does he have to so quickly question my hay production? The general theme of the opposition letters is legitimate concern for noise,traffic control, and whether I've produced accurate and qualified data for the income analysis. Some of those from Winston Ranch who supplied letters against my permit application are biased against me because of the apparent standing dispute regarding Simon Road. It's unfortunate. I believe that had the road dispute not been present,this permit request would have indeed been unopposed and likely approved months ago. This process has shown itself to be very difficult for a simple minded farmer. I want to make some supplemental income from weddings on my property. I came into this not knowing anything about how to apply, and have obviously learned as the process has continued. I understand the process and now understand the requirements to submit data pertaining to farm use and income from the subject property only. My record keeping prior to this process didn't require such a stringent separation and tracking of income. I now know that I have to keep better records of what is produced on the subject property and have to be able to show the income from just this property. I will improve my record keeping in hopes that if this permit is granted the renewal process won't be so difficult and agonizing. Thank you for allowing me to address the letters in this manner. Paul Cooper I o' qc *sT I O N October 23,2015 Deschutes County Board of County Commissioners P.O. Box 6005 Bend,OR 97708-6005 ATTN: BoCC Re: Cooper Commercial Events Application File Nos. 247.15-000001-LUP (247-15-000298-A) Dear Commissioners: As you know,the 2011 Oregon legislature enacted new laws authorizing agri-tourism and other commercial events in Oregon's agricultural zones, including Deschutes County's EFU zones. Subsequent to the new legislation, Deschutes County undertook the task of adopting amendments to the Deschutes County Code (DCC)to carry out the 2011 legislation. We thank you for that. One of the primary requirements a property owner must demonstrate in order to use their EFU zoned property for agri-tourism and other commercial events under the new law is that the events must be "incidental and subordinate"to the farm uses occurring on the property. Unfortunately,the legislature did not define"incidental and subordinate," leaving it to the counties to divine the legislature's intent. Since Deschutes County was the first county to incorporate the new legislation in your county zoning code,and since so many property owners in Deschutes County use their property for events, due to the popularity of having events in the county,you have become the de-facto "test ground" for application of the new law. Since I was deepiyinvolved in the proceedings leading to-the passage cf the 2011 legislation, it was no surprise that I was asked to represent Kerry and Debbie Downs,who were the first applicants in Deschutes County(and the first applicants statewide)for an event permit under the new law. Because we were making new law and were the test case for the new law,all of the parties to the case (Downs, opponents, and county staff)took the time to focus on the new law and all of its various details,and to make sure that the County's decision,whatever it was,was defensible in light of what we all believed would be an appeal to LUBA by the losing party. Fortunately for my clients,you approved the Downs application,and the opponents to the application chose not to file an appeal to LUBA. I believe that is due in large part to how thorough you were in your findings,and the work that all the parties to the case did in the case presentation. Mailing Address: P.O. Box 230637 •Tigard, OR 97281-0637 Street Address: 11735 S.W. Queen Elizabeth Street, Suite 101 •King City, OR 97224 (503) 620-0258 •FAX(503) 639-6891 •website: www.oia.org One of the issues we focused on extensively in Downs was how to determine when the proposed events were"incidental and subordinate"to the farm use occurring on the property. The "incidental and subordinate" requirement is found in ORS 215.283(4)(c)(A), and was incorporated by the County in DCC §18.16.042(C)(2)(d). The "incidental and subordinate" requirement is designed to ensure that the primary use of the subject property must remain agricultural,with the agri-tourism or other commercial events being secondary to the primary use. It is a key test for any event application. As part of the analysis of what the legislature intended the phrase "incidental and subordinate"to mean,we focused in Downs on three possible meanings. First,the County could examine the time which the property is devoted to use for agri-tourism and other commercial events,and compare that to the tin-'e which the property is devoted to 'Farm use. Assuming the property is used for farm use for a greater number of days each year than it is used for the events,then the events are "incidental and subordinate"to the farm use. That was certainly the case in Downs, and appears to be the case in this application as well. Alternatively,the County could interpret the"incidental and subordinate" language to require a comparison of the amount of the subject property devoted to farm use and the amount of the subject property devoted to event use. If the amount of the property devoted to farm use is greater than the amount of the property devoted to events,then the events are "incidental and subordinate to the farm use. That was also the case in Downs—a large portion of the Downs property was used for farm use, while a relatively small portion of the property was devoted to the commercial event use. That also Y P p p Y appears to be the case in this application. The third way to interpret the "incidental and subordinate" requirement is by comparing the income generated by farm use on the property against the income generated from the proposed events. If the income generated from farm use exceeds the income generated from the proposed events,then the events are "incidental and subordinate"to the farm use on the property. This was the the case in Downs,and also appears to be the case in this application. While we argued to the Board in Downs that any of the three possible ways to interpret"incidental and subordinate" were possible, we also suggested to the Board that it adopt the income method for determining whether an applicant met the "incidental and subordinate" criteria, as that was likely going to be the most defensible interpretation for the County. I continue to believe that to be the case,and suggest that,without abandoning the possibility that the other two possible methods being used in a subsequent application based on the facts of that application,the Board focus on the income approach in this case. Fortunately,the Hearings Officer focused on the income approach in this case. Unfortunately,the Hearings Officer added a new criteria to the income approach, and got it wrong. In the Downs decision,the Board made the following findings when using the income approach to interpret the"incidental and subordinate" requirement: "The gross income of the farm use(grass hay)is$18,000 to$22,500 per year, and the applicant's charge for each event($2,000)times the 6 events($12,000)is less than 50%(35 to 40%)of the overall gross farm income." The above-quoted language from the Board's opinion in Downs seems clear. As long as the income from the events is less than 50%of the combined income from the events and farm uses,the events are "incidental and subordinate"to the farm use. Or, in other words, if the property generates more income from farm uses than from events,the events are "incidental and subordinate." This is a perfectly reasonable interpretation of the phrase "incidental and subordinate" and was certainly sufficient to prevent an appeal from the opponents to the Downs application,which included 1000 Friends of Oregon. Unfortunately, in a subsequent event application(Brown), Hearings Officer Karen Green interpreted the above-quoted statement from the Board 's findings in Downs as a requirement that the income from the events could not exceed more than 40%of the combined farm use/event income in order for the events to be considered "incidental and subordinate." In other words,according to Hearings Officer Green, if an event applicant generated 41%of their income on the property from events,and 59%from farm uses,the application must be denied, because the events would not be considered "incidental and subordinate"to the farm use on the property. There is simply nothing in the above-quoted statement from the Board's findings in Downs to support Hearings Officer Green's interpretation, nor do the terms"incidental" or"subordinate"support this interpretation. The above-quoted statement makes clear that the test the Board was applying in Downs gross farm income, not less was whether the income from the events was less than 50%of the overall oss a , g than 40%. In the Downs application,the income from the events was less than 40%of the overall gross farm income, but that was not the test that the Board required. As long as the Downs(or any other applicant)demonstrated that the income generated from the events is less than the income generated from farm use on the property,the events would be considered "incidental and subordinate"to the farm use. In this case, Hearings Officer Stephanie Hicks picked up on Hearings Officer Green's ruling in Brown,and imposed the 40%test that Hearings Officer Green used incorrectly in Brown. As stated above, Hearings Officer Green simply misread (completely)the above-quoted language from the Board's findings in Downs. You have never indicated that the"incidental and subordinate" test imposes a 40%cap on overall gross farm income from the events. To the contrary,you indicated in Downs that the test was 50%,which makes sense and is easy to apply. If a property owner makes more money from farming the property than they will from the events,the events are "incidental and subordinate"to the farm activities. This is, using a technical legal term,a "no-brainer." Unfortunately, Hearings Officer Green's incorrect interpretation of your standard has created mischief that only you can correct. As you can probably guess, in this case,the proposed income from the events is more than 40%, but less than 50%,of the overall farm use income. In other words,the events will generate less income on the property than the farm uses. Using the income approach for the "incidental and subordinate"test which you used in Downs,the events in this case are "incidental and subordinate"to the farm uses,and this test has been met. Unfortunately,the Hearings Officer used the Green "40%test", rather than the test you used in Downs, and found that the events were not"incidental and subordinate"to the proposed use. This is an example of the snowball effect of Hearings Officer Green's misinterpretation of your quote from Downs, and creates a misapplication of the test with real life consequences to the applicants in this case. As mentioned above,you are the first County to enact the agri-tourism and other commercial events ordinance. It is important on a statewide level that you correctly interpret the new law, not just for the parties involved in the application, but for future applicants/opponents/counties throughout the state. You got it right in Downs, and there was no appeal. Hearings Officer Green and the Hearings Officer in this case misinterpreted your findings in Downs and got it wrong. If allowed to stand,their interpretations overturn your decision in Downs and lead to an incorrect interpretation of the law. 1 ask you to simply reaffirm the standard that you adopted in Downs. That will eliminate the confusion, and ensure that you apply a uniform standard to all present and future applicants. Thank you for the opportunity to testify. Please enterr this letter into the record of these proceedings. Very Tr4 Yours, David J. Hunnicutt President Paul Blikstad, Senior Planner County Planning Division Community Development Department PO Box 6005 Bend OR 97708-6005 October 7, 2015 Re: 247-15-000298-A/001-LUP- Paul & liana Cooper Our previous response to this application is on file and was considered in the Hearings Officer's decision. In speaking with Paul Cooper he informed me that he was allowed to hold events this year as he had appealed the decision. It surprises us that he did not have the permit which is why there was a hearing and was able to be compensated for being in violation of the permit. The application was denied based mainly on the falsification of data and figures given by Paul and Hana Cooper. This has not changed and until such time as Paul and. Hana Cooper can validate their data and agree to the findings in the Hearings Officer's decision we still oppose the permit for all the reasons listed in our previous correspondence and for the findings in the Hearings Officer's decision. Hary Hillis Mary Powell 64575 Old Bend-Redmond Hwy Bend OR 97703 Paul Blikstad From: Robert Thompson <botanicalusa @gmail.com> Sent: Sunday, October 25, 2015 10:54 PM To: Paul Blikstad Cc: Alan Unger;Tammy Baney;Tony DeBone Subject: PERMIT#247-15-000001-LUP - COOPER - APPEAL HEARING Dear Mr Blikstadt, Mr Unger, Ms Baney, and Mr DeBone, Please accept this e-mail as my notification that I continue to be opposed to any approval of Coopers' above referenced application for the reasons stated in my previously submitted letters, dated 25 January and 12 April 2015. Further, during this past summer I was able to hear loud music, etc coming from the weddings on Cooper's property, which was a disruptive annoyance of what should have been a pleasant weekend. For the reasons stated in my letters, and this summer's negative experience, I respectfully request that you uphold the original denial decision. Thank you. Sincerely, Robert M (Bob) Thompson Winston Ranch Property Owner 1 Paul Blikstad From: Rebecca Brown-Thompson <rbrownbotanical @gmail.com> Sent: Saturday, October 24, 2015 4:59 PM Subject: Cooper's limited use permit. #247-15-000001-LUP Cooper's limited use permit. #247-15-000001-LUP I am writing to ask that you uphold the denial decision by the hearings officer, Ms. Stephanie Hicks. Being a homeowner in Winston Ranch I am hoping you will deny Coopers the right to hold weddings on his property. It is inappropriate use of land designated as agriculture. I am also concerned about the noise and drunken behavior if liquor is allowed. We chose to live outside the city because we value our solitude and at least thought this area would be free of commercial business other than farming. There is no place for this type of activity in this area. If you set precedence by allowing this you weaken the laws and open the door for other non-farming activity, which is not an appropriate use of Agriculture land nor its original designation. This could also potentially affect the value of properties in the area.... who would want to live next to somebody who has large noisy parties that might include alcohol and/or now marijuana periodically all summer.... nobody. Thank you for your consideration. Rebecca Brown-Thompson. i Paul Blikstad From: Charles Brown <charliebrown @uci.net> Sent: Saturday, October 24, 2015 4:43 PM To: Tammy Baney; Tony DeBone; Alan Unger; Paul Blikstad Cc: Phillip &Sadie Renyer; Paul McKendry; Chris/Deborah Williams Subject: Hearing scheduled 10/26/15 on Permit#247-15-000001LUP Deschutes County Commissioners: I am a long term owner of property in Winston Ranch adjacent to the subject property belonging to Cooper.To clarify, my comments are my own and I represent neither the Board of Winston Ranch nor other neighbors. I am uncertain as to the purpose of this hearing. Cooper has for years held unauthorized activities under County Code and such activities were further held to be improper by the decision of the County's own Hearings Officer.The County apparently in its wisdom decided that the appropriate penalty for such unauthorized activity was to allow more of the same. Worth mentioning is that the only change in Cooper's activities has been to increase the height of the fence blocking neighbors access to our irrigation canal along with posting a "No Trespassing" sign on said fence. Of course this too is against Oregon Law, (ORS 540.730) but then transgressions of law don't seem to be an issue with Cooper,judging by his lengthy history. However, relating this action to the subject at hand it seems Cooper further has requested the local Swalley Irrigation District to avoid coming onto his property during the weekends as it might interfere with his festive activities. I request that the County decisively follow the decision of its own hearings officer and maintain the essence of the current"Exclusive Farm Use" zoning. Charles C. Brown, Ph.D. 1 Paul Blikstad Oct. 24, 2015 Re: Permit #247-15-000001-LUP Appeal Dear Mr. Blikstad: This is a brief message to inform you that as a resident of the Winston Ranch Property Owners Associate I would like for you to uphold the decision of Ms. Stephanie Hicks regarding the above referenced case. I believe Ms. Hicks spent considerable time and effort in coming to that decision. It is the correct decision. There was far too much conflicting data sent to her office and presented at the original hearing. I'd like for you to consider these items in particular: 1. The Coopers broke the law, intentional or unintentional,when they had the weddings without a permit. 2. They presented conflicting information during their public hearing presentation and the original application i.e. income on property and sale of trees as one example only. 3. They were allowed to have the weddings throughout the summer in order to prevent a hardship on the wedding goers. (A reward to Cooper) 4. The law was written so that this type of activity can be allowed where appropriate, however the law wasn't written so that individuals can present unsubstantiated data to get around the law and then go ahead with the activities. Please take this under consideration. We will see you at the meeting Monday. Phil Renyer