Loading...
2016-564-Minutes for Meeting November 28,2016 Recorded 12/9/2016DESCHUTES COUNTY OFFICIAL RECORDS CJ 2016564 NANCY BLANKENSHIP, COUNTY CLERK COMMISSIONERS' JOURNAL IIII oil 12/09/2016 03:1:11 PM 2036 -664 For Recording Stamp Only 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 WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, NOVEMBER 28, 2016 Present were Commissioners Alan Unger and Tammy Baney; Commissioner Anthony DeBone was out of the office. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; and Dave Doyle, County Counsel. Attending for a portion of the meeting were Nick Lelack and Peter Gutowsky, Community Development; Judith Ure, Administration; and four other citizens. No representatives of the media were in attendance. CALL TO ORDER Chair Unger opened the meeting at 1:30 p.m. ACTION ITEMS 1. Discussion and Preparation for Deliberations Regarding the Aceti Remand. Peter Gutowsky provided an overview of the item, with his staff report and a matrix addressing the main points. The rebuttal and final argument from the applicant were distributed to the Board this morning. Minutes of Board of Commissioners' Work Session Monday, November 28, 2016 Page 1 of 5 Regarding page 3 of the matrix, if the questions are answered as bulleted, this would indicate support of the applicant's position. Commissioner Baney will be out of the office but will conference call in next Wednesday. Staff can meet with Commissioner DeBone individually if desired. Chair Unger stated that he feels he has a good understanding of the issue and wants to move forward with a decision. Commissioner Baney added that she feels it is fairly straightforward and is prepared to deliberate next week. Mr. Gutowsky said if the questions are answered as outlined, there will be a local decision ready to be signed before the end of the year. 2. Discussion of Arts and Culture Funding. Judith Ure referred to this category of the video lottery grant fund program, and said there is a request from the Central Oregon Film Office for $10,000. These requests can be addressed as received, or the Board could go through an annual solicitation. She asked how the Board wants to set up this program, which currently allows for a total allocation of $15,000. She indicated that Commissioners Baney and Unger seem to favor an annual solicitation. Commissioner Baney wants to establish some clear guidelines for the coming year. This could use an abbreviated application as a separate category. Chair Unger agreed, and it would be easier to handle these particular grants on an annual basis for coming events. Commissioner Baney stated there was more of a County presence in the past. $15,000 is not a lot of funding but it can be very important for some of these groups. She would like to see this funding support foundational efforts. Chair Unger wants to look at the whole region and feels arts and culture in this area need to be enhanced. Ms. Ure said that this was addressed somewhat when they were doing the community grant program, which has been discontinued. She then referred to the application. Erik Kropp feels that this is more towards economic development efforts. The application was reviewed at this time. The grant funds would be leveraged along with funding from other agencies. Minutes of Board of Commissioners' Work Session Monday, November 28, 2016 Page 2 of 5 Chair Unger wants to move ahead. The film office is a good opportunity. Leveraging would help with the foundational work. Commissioner Baney indicated she is on their board with two others. If someone comes to town and wants to do a production, there is no single place or single point of contact to help them with permitting, locations, casting and other issues. The challenge is that this typically is paid for through cities, like in Portland, but that doesn't happen here. It is a challenge to get it going. She does not want the County to offer sustainable funding for this, but wants to see it get started in the right direction. Chair Unger agreed that this would help with foundational needs. This effort deserves an opportunity to try. Tom Anderson said this is not an uncommon office to have in premier locations, and this might be a chance to use lodging tax as well. There is surplus funding available this year. UNGER: Move approval of $10,000 towards this effort from lodging tax. BANEY: Second. VOTE: BANEY: Second. UNGER: Chair votes yes. Commissioner Baney suggested that the original $15,000 be carried into the next fiscal year, to be part of a revised program. Chair Unger would like to se this pot of funding be a little more meaningful as well. OTHER ITEMS Nick Lelack said they had their first marijuana business related application, and it will be subject to a decision this week. There was some opposition and there might be an appeal. A Hearings Officer deposit has already been set aside. He asked if a hearing date should be scheduled. A 20 -day notice is required. Three applications have been approved, and more are in process. As of December 13, medical is required to be in compliance regarding lighting, noise and other factors. A permit is needed at that point for the addition of recreational grows. Minutes of Board of Commissioners' Work Session Monday, November 28, 2016 Page 3 of 5 Regarding the D.A.' previous request to the Budget Committee for increased funding for a Medical Examiner, this was to be researched to compare what is happening around the State. This has been done, and a meeting of the M.E.'s office and the D.A. was held. They reached consensus that it should be financially segregated from the D.A.'s funds. In regard to compensation, they weighed how this is done throughout the State. Most have a Medical Examiner, Deputy M.E.'s and administration. The existing contract could be amended to address this. He asked if the Board wants to move forward or have this addressed by the full Budget Committee. The low end would be at about $90,000 per year. Right now, it is about half of this. The higher amount fits with what other agencies are paying. Chair Unger would like to move forward and just report it to the Committee. Mr. Anderson said the Budget Committee meeting will address a lot of issues but they could try to squeeze it in. Another question is whether the additional amount should be retroactively paid. Based on what he has learned, he feels it might be appropriate to make it retroactive. Commissioner Baney said that he should go ahead with this, and she feels an - -- - -- -- update to the Committee is adequate; also that it should be paid retroactively, for good will. It is important work. Chair Unger agreed. BANEY: Move approval of the November 21, 2016 business meeting and work session minutes. UNGER: Second. VOTE: BANEY: Second. UNGER: Chair votes yes. ADJOURN Being no further items discussed, the meeting at 2:15 p.m. Minutes of Board of Commissioners' Work Session Monday, November 28, 2016 Page 4 of 5 APPROVED this � Day of �� 2016 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary a& U4, Alan Unger, Chair Tammy Baney, a Chair Anthony DeBone, Commissioner Minutes of Board of Commissioners' Work Session Monday, November 28, 2016 Page 5 of 5 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388 -6570 — Fax (541) 385 -3202 — https: / /www.deschutes.org/ WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 PM, MONDAY, NOVEMBER 28, 2016 Allen Conference Room - Deschutes Services Building, 2ND Floor —1300 NW Wall Street — Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be addressed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed, although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work Sessions are not normally video or audio recorded, but written minutes are taken for the record. ACTION ITEMS 1. Discussion and Preparation for Deliberations Regarding Aceti Remand - Peter Gutowsky, Planning Manager 2. Discussion of Arts & Culture Funding OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. At any time during the 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 categories. Board of Commissioners Work Session Agenda Monday, November 28, 2016 Page 1 of 2 Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. ADJOURN To watch this meeting on line, go to: www.deschutes.org /meetings 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. 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. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.orq /meetingcalendar (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.) Board of Commissioners Work Session Agenda Monday, November 28, 2016 Page 2 of 2 Q ca v L U U U U m 0 L cu m � L 1 5 .ca G In In1 �i M V w H L I V C V .o < R co ci. O y ^V Q� ca a Q ca v L U U U U m 0 L cu m Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388 -6570 — Fax (541) 385 -3202 — https: / /www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of November 28, 2016 DATE: November 16, 2016 FROM: Peter Gutowsky, Community Development, 541 - 385 -1709 TITLE OF AGENDA ITEM: Discussion and Preparation for Deliberations Regarding Aceti Remand PUBLIC HEARING ON THIS DATE ?: No ATTENDANCE: Peter Gutowsky, Planning Manager SUMMARY: The Board of County Commissioners (Board) is conducting a work session on November 28, 2016 in preparation for their deliberation scheduled on December 7 for File No. 247 -16- 000593 -A; 247 -14- 000456 -ZC; 247 -14- 000457 -PA. The applicant, Anthony Aceti, requests a proceeding on remand to repeal the portion of the prior decision that approved an exception to Goal 14, reaffirms its prior decision to change the plan designation and zoning for the property, and adopting appropriate findings and conclusions. The Board held a public hearing on October 31, 2016. At the end of the hearing, the Board closed the oral record but left the written record, rebuttal, and final argument open until November 7. HNWM� Community Development Department Planning Division Building Safety Division Environmental Soils Division 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/ STAFF REPORT DATE: November 21, 2016 TO: Deschutes County Board of Commissioners FROM: Peter Gutowsky, Planning Manager RE: Work Session and Deliberation: Plan Amendment and Zone Change (File No. 247 -16- 000593 -A; 247 -14- 000456 -ZC; 247 -14- 000457 -PA) The Board of County Commissioners (Board) is conducting a work session on November 28, 2016 in preparation for their deliberation scheduled on December 7 for File No. 247-16-000593 - A; 247 -14- 000456 -ZC; 247 -14- 000457 -PA. I. Background The applicant requests a proceeding on remand to repeal the portion of the prior decision that approved an exception to Goal 14, reaffirms its prior decision to change the plan designation and zoning for the property, and adopting appropriate findings and conclusions. The Board held a nublic hearina on October 31. 2016. At the end of the hearina. the Board closed the oral record but left the written record, rebuttal, and final argument open until November 7. 11. Issue Requiring Board Decision The Board will need to determine if there is substantial evidence to: o Change the plan and zone designations of the subject property from Agricultural and Exclusive Farm Use to Rural Industrial to allow rural industrial uses. III. Matrix Staff provided a Matrix for the Board to assist them in evaluating the remand and formulating a decision. IV. Additional Testimony and Rebuttal The applicant submitted a rebuttal and final argument for the Board's consideration (Attachment). No other testimony was provided. V. Next Steps At the conclusion of the deliberation, the Board can choose one of the following options: Quality Services Performed with Pride 1. Continue deliberation. 2. Direct staff to coordinate with the applicant to prepare findings and conclusions prior to first reading of Ordinance Nos 2016 -027, 028, 029, and 030, consistent with DCC 22.28.060. 3. Deny the plan amendment, zone change request. Attachment: Applicant's rebuttal and final argument -2- C 0 Q N y T C Q ,a R m° N m C M 0 m 'C w C 3 --. N C N U 7 m m s N ) L p 0 + N Q fl O O > ' Q C c to j m ` N 3: C 0 r N 0 C U) O �, C N O (C6 Q- V O C Q' O N N C m 0 L X O .M '0 " X m 0 N— O m 0 O L m Q p N�+� N OL D 0 Z o -C9M L y.+ p m N L co -C O T ? U) � 2 § ■ e c « 2 o -C� �0 e= 2�¢ 0) m$ 2in u2 cu 32f \ ±oR ° (D k\ �\ \ C_ 7f/ (J) @E %# G ƒ� =_© m =f m§ §a - 0 cn ±c£-0 cu a� Eca vi E q / 2 § goo= 5 t @ R $ (D e�mCL _ qo = @2 9e =0 - =£22a. 00 § E 2&�q\\ Sa� 2±2 °° ®° /§£�2 X222$ c =o��� eo£2 2258 "0ma0c / o=0 CL 'V)a2� mmo E /Df\ EA / §�� ° >0o ak«- N2�2�/� cnXC.) §k2$f2 _�� q \Nk.:§ J e��c- %�q /f eo -e -= t -0 Wa _ mo22\2 m« o= a .� c£ 4)c0 ® %2: cn .. : . E G /M- ce� </w222 o2-r -0 a) k <\ � §J f /� - 0 G§ & o ' ®$\ © r ©E wcu '2=k cc mE -0 V) GU -0 oQ ( \�ƒ§§k CcM cu o C.) �¢�2�� gact§- #§$g0M:5 " =cu (n § /k2 /2G@2 :�Rg QCO c CU RRCO uC�e $ E%) %2@4- c« - -o = o = -oL- ■ 000c a =c =moo § o § \ § ° U) 7 =� &�■ u m �a 2 CL �- J32�E�\ k_j 0 � � NOV 0 7 2016 LAW OFFICE OF BILL KLOOS, PC DELIVERED BY: OREGON LAND USE LAW 1 f%tta >P 375 W. 4`h AVENUE, SUITE 204 EUGENE, OR 97401 DANTERRELL @LANDUSEOREGON.COM TEL: 541.343.8596 BILL KLOOS WEB: WWW.LANDUSEOREGON.COM BILLKLOOS @LANDUSEOREGON.COM November 4, 2016 Deschutes County Board of Commissioners c/o Peter Gutowsky, Planning Manager Community Development Building 117 NW Lafayette Avenue Bend, OR 97703 Re: Aceti Property Plan and Zone Change Application (247 -16- 000593 -A, 247 -14- 000456 -ZV, 247 -14- 000457 -PA) Local Proceeding on Remand from LUBA — Rebuttal and Final Argument Dear Chair and Commissioners: Please accept this letter as the Applicant Tony Aceti's rebuttal and final argument for the remand proceeding considering his applications to change the comprehensive plan designation and zoning for his property from Agriculture /EFU to Rural Industrial/R -I. This letter first provides rebuttal arguments to the written and oral testimony given by Central Oregon LandWatch (COLW) at the October 31, 2016 public hearing. The letter then provides the The Applicant respectfully requests that the County Board of Commissioners approve the comprehensive plan designation and zone change applications to allow rural industrial use of the subject property. Rebuttal Argument For the County Commissioner's convenience, the Applicant's rebuttal is broken down into headings organized around COLW's written testimony on remand. The rebuttal begins by addressing several broader issues that relate to arguments presented by COLW under multiple headings. Applicant then provides separate headings and rebuttal arguments to each of the sections of the COLW testimony. Each heading below begins by identifying the respective heading number and page numbers from the COLW testimony that is being rebutted. Broader Issues This section addresses broader aspects of COLW's written testimony that the County Commissioners should be aware of and respond to in the findings it adopts for this proceeding. Deschutes County Board of Commissioners November 4, 2016 Page 2 of 10 COLW raises issues that have been waived. The County Commissioners should decline to consider those waived issues. Throughout its written testimony, COLW raises issues that are outside the scope of this remand proceeding. As LUBA explained, the focus of the remand is on the urban -rural question, whether that comes in the form of review of an exception to Goal 14 or in review of whether the uses allowed in the County's R -I zone constitute urban or rural uses. The County Board properly limits the issues that can be raised on remand to the issue specifically remanded by LUBA. Here, for example, COLW wants to challenge whether the application to change the plan and zone designations to rural industrial are consistent with Goals 5, 6 and 9. COLW had an opportunity to raise those and other issues below and had an opportunity to appeal them to LUBA. COLW elected not to do so and therefore waived their right to raise those issues now, failed to exhaust their remedies during the first appeal, or are otherwise precluded from raising those issues in this remand proceeding. See, e.g., Beek v. City of Tillamook, 313 Or 148, 153, 831 P2d 678 (1992)(resolved issues include all issues resolved by LUBA and all issues that could have been raised in a LUBA appeal but were not); Miles v. City of Florence, 190 Or App 500, 510, 79 P3d 392 (2003)(expiaining exhaustion principle). The County Board should decline to review those issues, and note that those issues are not live on remand and have otherwise been waived in the findings the Board adopts in this proceeding. Specific waiver arguments are presented under the respective headings below. COLW's arguments about industrial uses are unequivocal and absolute and alleges all industrial uses are urban uses COLW makes no effort to identify which RI zone uses, if - - -- -- - -any, might constitute an urban use if located on -the subiect property and -which -would be rural. In its remand decision, regarding the types of issues COLW could raise on remand, LUBA held that COLW had not waived its right to raise urban -rural issues and explained: "The focus of petitioner's challenge in the second assignment of error is that Goal 14 exception. If the county on remand decides to adopt a different theory, i.e., that the RI zone only allows rural uses and may be applied to the property without an exception to Goal 14, petitioner has not waived its right to challenge that position and it has not waived its right to advance that challenge in this appeal." COLW v. Deschutes County, Slip Op. at 26. LUBA later explained regarding remand proceedings: "Once any potentially urban uses of concern that might be allowed in the RI zone have been identified, conditions of approval could be imposed to either preclude such urban uses or require approval of a Goal 14 exception in the future before such uses could be authorized in the future." Slip Op. at 28. Deschutes County Board of Commissioners November 4, 2016 Page 3 of 10 LUBA's decision basically says that on remand COLW can challenge categorically the question of whether the RI zone allows only rural uses and take the position that a Goal 14 exception is needed in all instances, but also explains that COLW could also argue that some of the RI zone uses would constitute an urban use on the subject property. Importantly, LUBA did not preclude COLW from arguing both positions in the alternative. Instead of pursuing both approaches, COLW chose to go solely with the first and to take the position that all industrial uses are urban uses and that a Goal 14 exception is needed in all instances to permit Rural Industrial uses on the subject property. See, e.g., COLW testimony p. 8, "Industrial land is an urban use. "; p. 10 "Because this is an urban use and a use that is more intensive than rural uses it requires an exception to Goal 14, but the property does not qualify." COLW did not argue in the alternative that some, but not all, of the uses permitted in the R -I zone are urban and identify which particular uses it felt would be urban if permitted for this property. It provided no reasoning why one or more of the R -I permitted uses are urban instead of rural as the plan and code intend to limit those uses. One of the primary reasons for the raise it or waive it principle is to assist in local government decision making and to afford local government an opportunity to respond to that issue before it gets raised in a petition on review to LUBA. Boldt v. Clackamas County, 21 Or LUBA 40, 46, affd 107 Or App 619, 813 P2d 1078 (1991). The County Board should note in its findings on remand that COLW presented no arguments directed to particular uses for the Board to evaluate in its review of the uses permitted in the R -1 zone. COLW generally fails to identify the approval criteria the testimony draws from in the standards for approval it seeks to impose. Throughout its testimony COLW suggests standards for approval yet fails to identify the approval criteria that require the standard to be met. The best example is the repeated use of the term "necessary." For example, in the subheading and argument under topic heading #I addressed immediately below, COLW states "Subject property is not necessary for industrial use[]" However, COLW refers to no standard that requires that a property be "necessary" for industrial use. An application to rezone property has no standard that requires a demonstration of necessity. The County Board should decline to impose requirements that have not been incorporated into its acknowledged land use regulations. COLW consistently misinterprets the Deschutes County Comprehensive Plan to argue that it does not permit plan and zone changes on rural land to allow rural industrial uses. COLW consistently argues that the comprehensive plan states that new industrial uses are to be permitted only in unincorporated communities. See, e.g. Testimony p. 2 (under subheading "Subject property is not intended for industrial use in the county's comprehensive plan ff'). Similarly, COLW argues that the Comprehensive Plan does not permit plan and zone changes to RI on rural land generally. Also, during oral testimony COLW proffered its interpretation of various comprehensive plan and code language. Simply put, COLWs interpretations generally Deschutes County Board of Commissioners November 4, 2016 Page 4 of 10 ignore the express language contained in the provision they're seeking to interpret or contextual language located elsewhere that make clear the meaning of the plan and code. LUBA affords deference only to the governing body's interpretation of its own plan and code. Siporen v. City of Medford, 349 Or 247, 262, 243 P3d 776 (2010). In its decision for this remand proceeding, the County Board should expressly interpret its plan and code, particularly when there are proffered interpretations that are inconsistent with the Board's. COLW misrepresents LUBA's remand by focusing on only one of the two approaches on remand L UBA discussed, positing a limited understanding of "rural uses" and seeking to impose inapplicable standards to the review of the proposal. This section rebuts arguments presented by COLW under topic heading #1 at pages 1 through 4 of its written testimony and corresponding oral arguments. COLW's arguments were organized under several subheadings. LUBA's remand decision noted that there were several possible avenues the County Commissioners (and the Applicant) could take on remand. The County could continue to seek an exception to Goal 14 to allow urban uses on rural land, either through revised findings for a "committed" exception or under a "reasons" exception theory. Alternatively, LUBA explained that the County could conclude that it intended only to allow rural uses on the property and simply approve the plan and zone change, without an exception to Goal 14, with conditions if necessary that guarantee the permitted uses will remain rural. See Slip Op. p. 26 (language quoted above). COLW takes the position that LUBA remanded solely for the County to prove up on Goal 14 and ignores the options LUBA expressly provided for in its decision. COLW is - - -- -- - - - wrong, the County Commissioners are free to pursue any of the options LUBA noted in its decision. COLW presents a range of arguments under separate headings that argue for a narrow meaning of "rural uses ", that the subject property is not suitable for, not "necessary" for, and not intended for industrial use. COLW argues for a 1986 description for "rural uses" to mean "sparse settlement, small farms, or acreage home sites with no or hardly any public services, on land not suitable, necessary, or intended for urban use" while ignoring subsequent case law that has interpreted what that Oregon Supreme Court decision meant by such language, particularly in the context of rural industrial uses. Permissible rural uses are not nearly as restrictive as those described by COLW and include rural industrial and rural commercial development. The site's suitability for industrial use was evaluated during the initial proceedings. See, e.g., Hearing Officer's decision, p. 25 of 81. There the Hearings Officer concluded that the proposal was consistent with the DCC use limitations and dimensional standards, "which are intended to protect the surrounding area from intense industrial uses." Id. COLW did not challenge that or any similar findings and conclusions regarding the property's suitability for the use in relationship to its proximity to the school in its appeal to LUBA. COLW has waived its Deschutes County Board of Commissioners November 4, 2016 Page 5 of 10 right to raise that issue now. In any event, the Hearings Officer has it right, the use and dimensional standards as well as Condition of Approval 2 protect adjacent and surrounding properties (to include the Three Sisters Adventist School, from adverse impacts from potential rural industrial development. The property is suitable for the intended use. As noted above in the Broader Issues section, COLW alleges the property must be "necessary" for industrial use. There is no need requirement for rural industrial uses. COLW's arguments focus on the County's incorporated communities' industrial needs and have no bearing or relevance to rural industrial uses. Those are urban needs, not rural industrial needs. As the Comprehensive Plan language from Chapter 3, page 11 explains, the purpose of the R -I zone is to allow industrial uses and "to ensure that they remain rural and that allowed uses are less intensive than those allowed in unincorporated communities." COLW's arguments miss the mark. COLW's final arguments under this section, from pages 2 through 4 of the testimony assume that the only industrial uses that are allowed by the comprehensive plan are those that are already identified and imply that rural industrial uses are only permitted in one of the County's unincorporated communities. That is a misinterpretation of the comprehensive plan that the County Commissioners should correct. Unincorporated communities are permitted to have urban uses, to include urban industrial uses, that is not the focus of R -1 zoning. Further, the subject property's lack of relationship to an unincorporated community or a rural service center is not relevant to whether this site is appropriate for rural industrial uses at rural levels. It does not need to be a part of an unincorporated community for the plan and zone change to rural industrial to be approved. COLW's arguments seeking to invoke unincorporated communities and rural service center issues are irrelevant, misleading and legally flawed. The County Board should reject COLW's arguments under this section. The applicant has met his burden of proof to demonstrate that the plan. and zone change to allow rural industrial use of the property is appropriate. This section rebuts COLW arguments presented under topic heading #2 at pages 4 through 5 of its written testimony and corresponding oral arguments. In a short section, COLW cites to a case that the applicant carries the burden of proof in a land use application. While that statement and citation are correct for the general proposition, COLW ignores the fact that the burden is met by demonstrating compliance with the County's acknowledged approval criteria. If COLW felt that the county's approval criteria for a plan and zone change do not satisfy the requirements set forth by Fasano v. Washington Co. Comm., it should have raised that to the County Commissioners in previous proceedings and then to LUBA. COLW has waived this issue. Furthermore, such an argument amounts to an impermissible collateral attack on Deschutes County's land use regulations. COLW also posits that because the Applicant has not identified a particular type of industrial use that would take place on the property, the County Board lacks the information to Deschutes County Board of Commissioners November 4, 2016 Page 6 of 10 conclude that the rezone is "necessary." As noted above, there is not a necessity requirement, only the requirement that a proposal satisfy the acknowledged standards for changing the plan and code designation for the property. There is substantial evidence in the record to support the County Board's approval of Mr. Aceti's request. COLW's arguments have no merit. The County's R -I zone is not limited to exception areas. This section rebuts COLW arguments presented under topic heading #3 at pages 5 through 6 of its written testimony and corresponding oral arguments. COLW argues that OAR 660 -022 does not apply and that a Goal 14 exception is required because the County's Rural Industrial zone is limited to exception areas only. Applicant agrees that OAR 660 -022, the administrative rule for unincorporated communities, does not apply to this proceeding. Applicant has said nothing about unincorporated communities; COLW is the party that keeps raising this straw man only to strike it down. OAR 660 -022 is irrelevant, as are all of COLW's arguments directed towards unincorporated communities. COLW also posits an interpretation of the Comprehensive Plan that the County Board should expressly reject. COLW argues that the reason the RI zone was created was to bring specific exception areas that already existed into compliance with state law. As was the case in its reading of LUBA's decision, COLW prefers to look at only part of the Comprehensive Plan and to ignore all other portions of the plan. Yes, the Comprehensive Plan says that a reason for designating certain exception areas RI and imposing the Limited Combining Zone to -- some -of those existing areas was for the purpose of bringing them into compliance with state land use laws. However, that is not the only purpose for the RI zone. COLW draws from explanations about why certain areas were designated RI but ignores the comprehensive plan language (Chapter 3, page 11) and plan policies (Policy 3.4.23, 3.4.28) that most directly address the purpose and application of the Rural Industrial zone to new properties. The Comprehensive Plan, DCC and state law permit the rezoning of rural properties to RI that have received an exception to Goal 3 or that are deemed nonresource land because they are not "agricultural land" as defined by the Goal 3 rule. The subject property falls into the latter category. The Board should expressly reject COLW's limited reading of the Deschutes Comprehensive Plan. The County Commissioners can conduct the Shaffer analysis, as LUBA recognized in its remand decision. COLW has waived its right to challenge Goals 5, 6 or 9 for this application proceeding. This section rebuts COLW arguments presented under topic heading #4 at pages 6 through 8 of its written testimony and corresponding oral arguments. Deschutes County Board of Commissioners November 4, 2016 Page 7 of 10 COLW has waived its right to revisit whether industrial use of the property would violate Goals 5, 6 or 9. The Hearing Officer made findings regarding all of the statewide planning goals at pages 31 and 32 of 81 in her decision and COLW failed to raise issues with any of them except the exception to Goal 14. COLW has waived its right to raise objections at this late stage of the proceeding. In any event, COLW's goals arguments are without merit. DLCD has acknowledged the Deschutes County Comprehensive Plan and RI zoning code as in compliance with the Statewide Planning Goals. Goal 5 is implemented through the identification of areas where Goal 5 protections are required; if a property is not in an area identified for Goal 5 protections, it is not subject to the County's Goal 5 program. Goal 5 compliance with respect to scenic views is implemented through development standards imposed by the Landscape Management Combining Zone to properties shown on the respective comprehensive plan map. That zone includes portions of the subject property. Those development standards apply equally to all potential uses and development on the property — whether farm, industrial, commercial or residential — and consequently Goal 5 scenic view compliance is assured. COLW has not explained how it would be impossible for industrial development to comply with the landscape standards or how compliance with those standards would fail to satisfy the requirements of the County's Goal 5 program. Similarly, the County has adopted Goal 5 protections for water and COLW has not identified that the property lies in any Goal 5 protected area. With respect to Goal 6, the Comprehensive Plan states: "Two additional goals are associated with resource protection but do not apply to specific lands. Statewide Goal 6, Air, Water and Land Resources quality, requires -- -- - - - - compliance with Federal and State- regulations- regarding -- air, - water and land - quality." Comp Plan Section 2.1 p. 2. None of the uses allowed in the RI zone present difficulties for obtaining necessary air, water or land quality permits from Federal or State regulators or for complying with all applicable environmental standards. The use and development standards restrict the intensity of development to rural levels, which makes such compliance with environmental regulations easier. As a precautionary measure, the Applicant urges the County to adopt appropriate findings and impose a condition of approval that requires the obtaining of all necessary air, water and land resource quality permits from the appropriate regulating authority prior to commencing any permitted use and complying with those permits. COLW errs in its belief that Goal 9 even applies to areas outside of urban growth boundaries. OAR 660, division 009, the implementing rule for Goal 9, expressly states: "This division applies to comprehensive plans for areas within urban growth boundaries. This division does not require or restrict planning for industrial and other employment uses outside urban growth boundaries." OAR 660 -009- 0010(1). Deschutes County Board of Commissioners November 4, 2016 Page 8 of 10 COLW's Goal 9 arguments are without merit. COLW argues that it is impossible for the Board of Commissioners to apply the Shaffer analysis without an identified particular use. Interestingly, LUBA's decision concludes otherwise. LUBA understood that no particular use was being proposed and that review was for the full range of uses allowed in the County's Rural Industrial Zone. See, e.g., Slip Op at 27 (discussing Hearing Officer's concern that some of the uses allowed in the R -1 zone might be viewed as "urban" in nature); and Slip Op at 28 ( "Once any potential urban uses of concern that might be allowed in the RI zone have been identified, conditions of approval could be imposed to * * * preclude such urban uses[.] "). As I explained during the public hearing, while having to examine the full range of permitted uses in the rural industrial zone may make it necessary to answer one of the Shaffer questions in the negative, and thus force further action under the Shaffer framework, nothing about the Shaffer analysis precludes its use in instances where a particular use is not proposed, and LUBA's remand decision states it is entirely appropriate to do so. The County Board should reject COLW's arguments under the heading #4. A decision to allow only rural industrial uses that constitute rural uses is consistent with Goal 14. Goal 14 is invoked only if a use on rural land constitutes an urban use. This section rebuts COLW arguments presented under topic heading #5 at pages 8 through 10 of its written testimony and corresponding oral arguments. COLW's arguments in this section are all based on the premise that all- industrial -- use of -- land constitutes urban use. Its arguments rely on a strained interpretation of Goal 14 language and cases that do not assist their argument. COLW posits an interpretation of Goal 14's language under the heading "Rural Industrial Development" that provides: "Notwithstanding other provisions of this goal restricting urban uses on rural land, a county may authorize industrial development, and accessory uses subordinate to the industrial development, in buildings of any size and type, on certain lands outside urban growth boundaries specified in ORS 197.713 and 197.714, consistent with the requirements of those statutes and any applicable administrative rules adopted by the Commission." COLW argues that the language equates "industrial development" with "urban use" and that the statement only has meaning with that reading and one must give meaning to the whole phrase. COLW's reading is not the only reading possible and ignores the context of the provision. The beginning of the sentence could also be read to mean, "Despite the provisions of Goal 14 Deschutes County Board of Commissioners November 4, 2016 Page 9 of 10 that restrict urban uses on rural land, a county may authorize industrial development and accessory uses consistent with state statute and administrative rules intended to keep industrial uses on rural lands at rural levels." Nothing about Goal 14 regulates rural levels of use on rural land, nor does it categorically classify industrial uses as urban as COLW suggests. COLW relies on an excerpted passage from 1000 Friends of Oregon v. Land Conservation & Dev. Comm. (Umatilla County), 85 Or App 88, 92 (1987) to argue that all industrial uses are urban. Unfortunately for COLW, two years after that decision LUBA interpreted that exact same language. See Shaffer v. Jackson County, 17 Or LUBA 922, 931 and IN 5 (1989). In Shaffer, LUBA explained that the Court of Appeal's decision and cited language was directed at the Heavy Industrial (not RI uses) at issue in that proceeding and did not apply broadly to all industrial uses. LUBA then proceeded to set forth the Shaffer analysis discussed at the hearing. LUBA's interpretation of the Court of Appeal's Umatilla County case flatly contradicts COLW's position. The court has had over 25 years to correct LUBA if it was wrong; the court has not done so. And, as recently as LUBA's decision in Columbia Riverkeepr v. Columbia County (Luba No 2014 -017, August 27, 2014), it said, "In ,Shaffer v. Jackson County we rejected an argument that industrial uses are inherently urban in nature." Slip Op at 23 (citation omitted). COLW's reliance on its reading of Umatilla County is unfounded. COLW's reliance on 1000 Friends of Oregon v. LCDC (Curry County), 301 Or 447, 457 (1986) is equally unfounded. The passage COLW quotes applies for uses which are prohibited by a Statewide Planning Goal without an exception. However, if a use is not prohibited by a Goal, an exception is not needed. LUBA recognized this in its remand decision. Consequently, if rural industrial uses are rural, no exception is needed to allow rural industrial uses on rural land that has been deemed "not agricultural" land. COLW's arguments collapse once its assumption -- - - - -that "-all industrial uses are urban" fails. Because the Deschutes County Code restricts the types of permissible uses to rural types of industrial uses and the use and development standards further limit the intensity of those permissible uses, they are permissible on rural land without an exception to Goal 14. This LUBA recognized in its remand decision. The County Board should reject COLW's arguments under heading 45. The County Commissioners should reject all of the arguments COWL presents in its testimony submitted orally and in writing for the remand proceeding. Final Argument Throughout this application, the Applicant has always desired and requested permission to allow rural levels of industrial uses on his property. Thus, the Applicant's proposals to change the plan and zone designations from AG/EFU to RI. In its remand decision, LUBA provided guidance to the county that is relevant for this proceeding. LUBA explained that the only purpose for an exception to Goal 14 is to allow urban uses. Consequently, if the County or Applicant wishes to have urban uses on the property, an Deschutes County Board of Commissioners November 4, 2016 Page 10 of 10 exception is necessary. However, LUBA also explained that if all that was desired was for rural use of the property, because the County's Comprehensive Plan provides that the purpose of the R -I zone is to ensure that the uses allowed in the RI zone are rural uses, all the county needs to do is approve the plan and zone change, and to impose any conditions necessary to preclude any specific RI use that might result in urban use of the land. It is that latter course of action — keep the uses rural and impose the RI plan and zone designation with appropriate restrictions — that the Applicant requested on remand. The Applicant has explained how this is possible and submitted proposed findings and supplemental findings to support a decision to approve the applications. This is a straight - forward application of the County's acknowledged Comprehensive Plan and land use code. The evidence in the record, both from the initial proceeding and from the remand proceeding, supports approval. COLW argued throughout the initial and remand proceeding that all industrial uses, to include permitted RI uses developed under the DCC use and development limitations for RI uses, are urban uses and can only be permitted with an exception to Goal 14. LUBA and the courts have rejected this extreme position. LUBA implicitly rejected that position in the guidance it provided to the County Board in this proceeding. The Board should reject COLW's arguments. Furthermore, COLW identified none of the RI uses that it deems might constitute an urban use if allowed on the subject property. It provides no arguments or analysis to assist the County Board's consideration of the permitted RI uses. The County Board's decision should reflect that fact. -- - - -- - The Applicant respectfully requests that the County Board of Commissioners: reaffirm its determination that the subject property is not "agricultural land" as that term is defined by Goal 3; repeal its prior decision related to an exception to Goal 14; approve both the comprehensive plan designation change and zone change applications to Rural Industrial; and adopt findings supporting the Board's decision and imposing appropriate conditions of approval. Conclusion For the reasons provided gbove, the County hoard pf Cgtpmissioners should approve the comprehensive plan ciesigpation a0d zone cj 4pge applications to allow rural industrial use of the subject property. Thank you for your consideration. Best regards, ZO,J a Jul"Iff Dan Terrell To: Board of Commissioners From: Judith Ure, Management Analyst Date: November 23, 2016 Subject: Arts and Culture Funding The Board of Commissioners set aside $15,000 during the 2016 -17 Video Lottery Fund prioritization process for the purpose of supporting programs, projects, and /or activities related to the arts and culture field. A system for distributing these funds was not determined at that time. Since the beginning of the fiscal year, the County has received a few inquiries from local non- profit organizations about the status of the arts and culture funds. During the November 28, 2016 work session, the Board will have an opportunity to discuss how best to make these funds available. A few options to consider include: 1. Treat the arts and culture funds as a separate category within the Discretionary Grant Program, similar to the current allocation for fundraising activities. Interested organizations would complete a discretionary grant application and requests would be considered quarterly during the Board's routine review process. 2. Conduct a separate annual solicitation for arts and culture grants, similar to the Spay and Neuter Grant Program. The County would issue a Request for Applications (RFA) and a separate review committee would be established to provide a recommendation to the Board of Commissioners. 3. Divide the arts and culture funds between the three Commissioners to be awarded in accordance with individual preferences. Each of these options, as well as any others not outlined herein, can be adapted to reflect the Board's vision for award amounts, timelines, application process, and other factors. Please contact me if you have any questions about the arts and culture allocation or wish to discuss other options in advance of the November 21 work session. c: Tom Anderson, County Administrator Erik Kropp, Deputy County Administrator Bonnie Baker, Board Assistant Deschutes County Board of Commissioners PO Box 6005, Bend, OR 97701 -6005 1300 NW Wall Street, Suite 200, Bend, OR Telephone: 541- 388 -6571 Fax: 541- 385 -3202 Website: www.deschutes.org DESCHUTES COUNTY DISCRETIONARY GRANT PROGRAM APPLICATION __�] Today's Date: 11/23/2016 Project Name: Deschutes Locations & Crew Build Project Beginning Date: DEC 1, 2016 Project End Date: ONGOING Amount Requested: $10,000 Date Funds Needed: ON DELIVERY Name of Applicant Organization: CENTRAL OREGON FILM OFFICE Address: 57100 SW BEAVER DRIVE, City & Zip Code: SUNRIVER, OR 97707 Tax ID #: 47- 5101722 Contact Name(s): SANDY HENDERSON Telephone #: 310 848 3967 Fax #:F07N7E7 Email Addre SANDY @CENTRALOREGONFILMOFFICE.COM __On__a_separate sheet(s), please briefly answer the following questions: 1. Describe the applicant organization, including its purpose, leadership structure, and activities. 2. Describe the proposed project or activity. 3. Provide a timeline for completing the proposed project or activity. 4. Explain how the proposed project or activity will positively impact the community. 5. Identify the specific communities or groups that will benefit. 6. Describe how grant funds will be used and include the source and amounts of matching funds or in -kind contributions, if any. Itemize anticipated expenditures *. 7. If the grant will support an ongoing activity, explain how it will be funded in the future. Attach: Proof of the applicant organization's non - profit status. * Applicant may be contacted during the review process and asked to provide a complete line item budget. 1. Describe the applicant organization, including its purpose, leadership structure, and activities. The Central Oregon Film Office was founded in 2015 after discovering a need to promote the region and our talented citizenry to out of area film and television production companies. New and diverse locales are constantly required for branded content, television series and film productions. We believe Deschutes County is an untapped source of stunning locations and that our citizens have the skills necessary to staff a crew. However, a professional and detailed website is required to market these locations to key industry professionals. The Central Oregon Film Office is a 501(c)(3) organization with a mission to promote our region, partner with other local organizations and produce media that would highlight our stunning locales in the best possible light. We aim to support the next generation of artistic filmmakers, via work and education, and building a philosophy of contributing to the cultural landscape of Deschutes County. COFO is helmed by Sandy Henderson, a 20 -year film veteran with a Board that includes Deschutes County Commissioner, Tammy Baney; COVA President, Alana Hughson and Mt. Bachelor President & General Manager, John McLeod. Given the small structure of the organization, board members are fully invested in building the organization from its current start up structure. 2. Describe the proposed project or activity. This project has three facets. Grant funds would enable COFO to expand the website from beta to alpha, and to scout locations in the region, cataloging them over time /day /season allowing out of area filmmakers to have specific details on hand, thus making it a `no brainer' to film in Deschutes County. The second facet will be done in tandem with location scouting. As COFO travels to the towns of Deschutes County, they will meet with City officials to discuss the creation of film permits, thus driving revenue to the area. The third facet is building an online database of available crew from the region. Should we be successful in receiving the grant, COFO would have the resources to implement a cast and crew listing with up to date contacts, Union affiliations and skills. This in turn will provide personal income to persons hired for a production, and (we hope) intern opportunities for the next generation of filmmakers and Central Oregonians. The database and location guide will be housed at www.centraloregonfilmoffice.com, and be accessible for all productions to review. Grant support from Deschutes County will allow COFO to continue the momentum of establishing this region as a viable production alternative to Southern California and Portland. 3. Provide a timeline for completing the proposed project or activity. Initially, iconic locations will be photographed and videoed commencing mid - December allowing us to showcase the region in Winter, and at varying times of the day (sunrise /midday /sunset). Grant support will allow us to showcase these potential sites in Deschutes County: - Black Butte Ranch - Towns (e.g. LaPine, Redmond, Sisters, Sunriver) - Lava Butte and Benhem Falls - Mt. Bachelor E; - Tumalo Falls Establishing Central Oregon locations will be an ongoing activity, however these sites would allow us to immediately update our website and to enable us to expand our location scouting to a wider area of Deschutes County. Images would be uploaded to the website with descriptive by March 1, 2017. 4. Explain how the proposed project or activity will positively impact the community. Film is a year round, recession proof industry. Showcasing our stunning locations to out of area productions allows COFO to develop the region as a production destination thus resulting in jobs for our citizens, national and international awareness of the region as a tourist destination and builds a new, diverse revenue stream for small businesses and jobs for future generations. Importantly, it also builds greater awareness of our regional culture not only outside the area, but within it for our citizens. The website is accessible to all; and can be utilized as a resource not only for film work, but also the overall arts and cultural foundation of our region. This, in turn helps our established creative and cultural organizations expand their reach, and to achieve their own mission of contributing to, and supporting the arts. When a commercial, TV or film decides to bring their production to a region, a minimum of 50% of the budget will be spent in that area. Productions require large numbers of skilled and unskilled employees. From the production assistants that transport crew to and from set in vans, to the caterers and security guards, lighting contractors, riggers and sound and video technicians, there are many jobs that need to be filled locally. Hotel accommodation is also required, in addition to retail purchases that send funds into small businesses. When as much as 50% (and usually up to 65%) of typical on- location production are comprised of local hires this ensures jobs for citizens. Salaries commence at $25 /hour and increase to upwards of $75 /hour, not including overtime or residuals for on camera talent. These are jobs outside of our usual recreational and seasonal positions. The return on investment for a film office is a high one. Recently, a national commercial filmed in Bend. COFO's expenditure for this commercial was exceptionally low for the return: Direct Spend on Lodging & Ancillary Services: $93,000 Personal Income (Jobs) Created: $33,250 Total Economic Benefit for Bend. $252,000 COFO Costs to bring Production to Central Oregon instead of Tahoe, CA: $3,828 Return on Investment: 6686% 5. Identify the specific communities or groups that will benefit. Deschutes County citizenry will benefit currently from any productions visiting and working in the area with personal income gained via a wide range of skilled and unskilled jobs. The ability to build a career around film work will grow over time as we continue to build upon the current foundation. Our citizens are given an opportunity to work in a field that is outside of recreation, beer or real estate and that pays above average salaries. The arts and cultural community benefits when film and varying kinds of media contribute to the overall artistic health of a community. This allows creative individuals to express their passion and skills in ways that are not currently available (at the level we are focusing on). - Hotels receive increased business from off season and out of town visitors. - Restaurants receive increased business from visiting production staff. - Retail outlets and small businesses receive increased business (catering, construction, costumes, hair and makeup, electrical equipment, car rental companies and businesses /locations used as sets). 6. Describe how grant funds will be used and include the source and amounts of matching funds or in -kind contributions, if any. Itemize anticipated expenditures. Grant funds will be used for operations costs pertaining to location scouting, website expansion and to attend meetings with Deschutes County officials to create film permit costs. We have confirmed matching funds from: - Central Oregon Visitors Association ($10,000) to develop the website from beta to alpha thus allowing COFO to expand our crew and location databases - Mt. Bachelor ($10,000) to expand our film education initiative for at risk youth (their -- - -- - -- -- documentary film work will eventually be showcased on- our - website) - - - Visit Bend (TBD). Potential funds from Visit Bend will be utilized to showcase specific Bend locations. Expenditure will include: - Ten location scouts at $500 per scout, inclusive of descriptive, imagery, editing, website build out and uploads. Subtotal: $5,000 - Permit facility creation, discussion, negotiation and descriptive upload to website Subtotal: $1,500 - Cast and Crew database build out, creation, research and upload Subtotal: $3,500 Total: $10,000 7. If the grant will support an ongoing activity, explain how it will be funded in the future. Building a website, keeping it up to date and showcasing the plethora of locations we have in Deschutes County will be an ongoing program. We anticipate additional funding to be received via regional RCTP funds commencing July 1, 2017. Other entities, such as COVA, Mt. Bachelor and Visit Bend have expressed an ongoing commitment to support COFO. We very much appreciate any support given by Deschutes County.