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2017-160-Minutes for Meeting March 06,2017 Recorded 4/17/2017Recorded in Deschutes County CJ2017-160 Nancy Blankenship, County Clerk Commissioners'Journal 04/17/2017 9:25:39 AM 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 BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS Monday, March 6, 2017 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Ross, Executive Secretary. Several representatives of the media and several citizens were in attendance. CALL TO ORDER: Chair Baney called the meeting to order at 10:00 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: None was offered. CONSENT AGENDA Chair Baney pulled Consent Agenda Item #3 for presentation: Board Consideration of letter of resignation of Broc Stenman of the Historic Landmarks Commission and thanking him for his service. The Board of Commissioners presented Mr. Stenman a letter and plaque thanking him for his service on the Historic Landmarks Commission. Minutes of Board of Commissioners' Business Meeting March 6, 2017 Page 1 of 6 Before the Board was Consideration of Approval of the Consent Agenda. DEBONE: Move approval. HENDERSON: Second. VOTE: DEBONE: Yes. HENDERSON: Yes. BANEY: Chair votes yes. Motion Carried Consent Agenda Items: 1. Consideration of Signature of Order No. 2017-007, Declaring Certain Deschutes County Sheriff's Office Personal Property Surplus and Authorizing Sale. 2. Consideration of Signature of Resolution No. 2017-011, Declaring Surplus Property Elections Tabulation Scanners. 3. Board Consideration of letter of resignation of Broc Stenman of the Historic Landmarks Commission and thanking him for his service. ACTION ITEMS 4. Public Hearing: Consideration of Administrative Decision to Establish a Marijuana Production Facility in the Exclusive Farm Use (EFU) Zone Jacob Ripper, Associate Planner presented the Community Development Department staff memorandum and read the staff report into the record. Chair Baney read the statement of hearing procedures into the record. Mr. Ripper asked the Board if they had any conflicts to disclose. Hearing none, Mr. Ripper asked if there were any challenges from the audience. No challenges were identified. Chair Baney opened the public hearing. Mr. Ripper reviewed the Deschutes County Code relating to marijuana production. Lisa Klemp, Bryant Emerson, LLP attorney for applicant Rubio Real Estate Investments asked the Board to affirm the County administrative decisions. Ms. Klemp clarified the questions on the application regarding security. According to OLCC requirements cameras must be installed to monitor the site as additional security measures as regulated by state law. The concerns on waste must be under the control of the applicant. Ms. Klemp stated the applicant will be constructing a home on site to provide for additional monitoring. Ms. Klemp also responded on concerns of neighbors regarding odor noting results of an engineer's report and commented on the dwelling distances from the neighboring properties which under her opinion well Minutes of Board of Commissioners' Business Meeting March 6, 2017 Page 2 of 6 exceed County requirements. The applicant has also agreed to install additional vegetation screening. Ms. Klemp explained the purpose of the site is for smaller marijuana plants which shouldn't create activity. Ms. Klemp noted a System Development Charge (SDC) of $15,000 to her client far exceeds the actual impact. She opined there shouldn't be activity that would necessitate that charge. Legal Counsel noted the SDC is not before the Board for consideration in this hearing and Ms. Kemper may follow the process through the Deschutes County Road Department for the formal request regarding the SDC. Regarding concerns on HVAC units, Ms. Kemper stated the engineer's report noted the emission of decibel levels is within the criteria. Question raised whether the property has water rights. Ms. Kemper stated there are no concerns with the use of the water. Ms. Kemper stated there is access on site that is approved and developed and only requires the property line adjustment. Discussion held on staffing required for the facility. Ms. Kemper stated the applicant would do the work as he would be living on site and there may only be two additional employees. Liz Dickson, Dickson Hatfield attorney representing Monika and Lance Piatt and neighbors. Ms. Dickson stated the largest concern of neighbors is that of compatibility and requests opportunity for review. Ms. Dickson stated there were errors made with the application and concern of a modification made to the application. The original application was sent to the neighbors and they were not given the notice of modifications increasing the square footage of the facility. There was no hearing provided for the neighbors. Citizen involvement is the first priority and Ms. Dickson asks they be allowed the opportunity. Ms. Dickson reviewed zoning and the parcels surrounding this property. She pointed out the subject property is land locked and has no legal access to Alfalfa Market Road. A map is attached to the record showing the subject property as well as neighboring properties. Ms. Dickson commented the neighbors have justifiable concerns. Ms. Dickson spoke on the number of employees that may be on the property and of the impact of traffic, water, electricity, and septic that are not dealt with in the application. She asks the applicant goes back and includes these items in the application. Ms. Dickson commented on the water usage. She reviewed with the water master who says they use nursery rights not irrigation rights for greenhouses. The applicant's use of potable treated water for irrigation is not in the best interest of public policy. The secured waste is not included in the site plan. Ms. Dickson also spoke on traffic and the impact wasn't revised after the application was modified. Analysis needs to be redone as it was based on a comparison to warehouse activity. Ms. Dickson spoke on the violation of Code for a new dwelling use in conjunction with a production site and is not allowed. Discussion held on the status and origin of the home building permit. Ms. Dickson noted for clarification of the easement or property line adjustment and the consolidation of the two lots has not been completed. Minutes of Board of Commissioners' Business Meeting March 6, 2017 Page 3 of 6 Monika and Lance Piatt. Mr. and Mrs. Piatt are the appellants and noted they have a petition with 65 names in opposition for this marijuana production facility. Mrs. Piatt spoke on the neighborhood and current traffic concerns. Mrs. Piatt noted their concern regarding the original facility application was for 10,000 square feet and then was increased to 12,000 square feet. Mrs. Piatt commented on Community Development staff findings. She also commented there are 28 properties around this parcel and asks the Board for consideration of safety of our neighbors. Mrs. Piatt submitted the petition for the record. Mr. Piatt spoke on concerns of suitability, compatibility, and predictability. Mr. Piatt stated the lot in question is unfit for the neighborhood. He also reviewed the history of the property and the driveway. Research was taken from pot information sources from new growers. From his research, he found articles on predictability and they are all warning the growers of increased crimes, law enforcement raids, and concerns with schools or anywhere where children gather regularly and with losing neighbor trust. Mr. Piatt stated as a neighborhood we do not condone the use of the neighborhood as a pot farm security camera. Doug Hermonson: Mr. Hermonson owns property to the west. His concern is that his family is building a house with their two small children and there is talk about the applicant living or not living on the property and he believes there won't be a resident on site. Mr. Hermonson understands we made a decision as a state and county on marijuana but we need to address whether there is compatibility. Mr. Hermonson stated he has no issue with Mr. Rubio but doesn't feel it will fit within the neighborhood. Robert Fair: Mr. Fair noted he was speaking on behalf of himself and his mother. They have properties south of the subject property. Mr. Fair believes this is incompatible with the neighborhood. He voiced his concerns for his grandkids. He explained they raise Black Angus and 4H pigs and they invite kids to train and feed on his property. He spoke on the access issues to the subject property and has had several instances where people have trespassed through his property to try to access to Mr. Rubio's property. Mr. Fair explained he rents 900 square feet to a medical marijuana grower and asked for his input on activity levels. For his renter's size of operation, it takes 3 or 4 employees. Mr. Fair is concerned for the kids and wants make sure we give them the right message. Jerry Powell: Mr. Powell made comment on odor control system that he did see the mechanical engineer's report that in opinion it will control odor but Code was not asking for opinion but a demonstration of control. Mr. Powell owns property two doors away and reflected on the history of the neighborhood and doesn't believe a marijuana grow operation is compatible. Mr. Powell also commented the access to the property doesn't exist and that Code requires legal direct access from a constructed public county or state road and there is not legal access to that property. Jan Davey: Mrs. Davey is a realtor in Bend and lives within 1000 feet from the proposed grow operation and was not notified of the application. She commented on her experience as a broker where more people are worried about property purchases. Mrs. Minutes of Board of Commissioners' Business Meeting March 6, 2017 Page 4 of 6 Davey noted her concerns with the odor where living on the East side of Bend poses issues with predictable wind. She spoke on quality of living. Jerome Davey: Mr. Davey is a contractor and has concerns regarding the septic system and if it can handle residents and employees, and has concerns of the waste disposal factor. Mr. Davey questions whether the residence will come after the grow operation. Susan Autman: Ms. Autman spoke on her concern of waste disposal. She is skeptical the applicant will build a house. She also has concerns on the septic and wonders if the DEQ has done research on grey water emissions from marijuana grows and the impacts on surrounding lands. Ms. Autman stated this is not a neighborhood for a commercial grow operation. Lisa Klemp commented the application is clear and concise and if the appellant and suggests if petitioners have any issues with County Code they should bring forward a text amendment. Ms. Klemp commented on having the record open for 30 days would not be necessary as there was ample time and should not be a burden on the applicant. She opined there should be no concerns with traffic or security or water rights. The Board asked for clarification on the number of employees and specificity of the impact of the operation. The applicant replied in terms of employees the number could be capped at five including himself. Discussion held on plant size and work that needs to be done to the plants. Douglas White of Oregon Planning Solutions noted site plans for the property were reviewed last summer and the applicant had delayed building due to financial reasons. Septic site evaluation was done and engineering work was done as well but have not applied for a building permit. Commissioner Baney asks for clarification on whether approvals were based on residential or commercial. Commissioner DeBone inquired whether there were plans for employee activity at the facility for plumbing and septic. Commissioner Henderson raised the question on the lot line adjustment and the need to address the road access. The Board requests clarity on legal access, lot line adjustment, disposal and secure storage. Discussion held on the length of time to keep open the record. The record will remain open for 14 days and close at 5:00 p.m. on March 20, 2017. Chair Baney closed the oral portion of Public Hearing at this time. Minutes of Board of Commissioners' Business Meeting March 6, 2017 Page 5 of 6 CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 5. Before the Board was Consideration of Signature of Document No. 2017-112, Amendment to Agreement Between Deschutes County 911 Service District and Harris Corporation. Steve Reinke, 911 Operations Director reported the amendment relates to the contract regarding trunked radio system. During the engineering phase of the project, it was apparent the radio site towers would have become overloaded necessitating a system design change. DEBONE: Move approval. HENDERSON: Second. VOTE: DEBONE: Yes HENDERSON: Yes BANEY: Chair votes yes. Motion Carried OTHER ITEMS: None were offered. ADJOURN: Being no further items to come before the Board, the meeting was adjourned at 12:37 p.m. DATED this Day of4p,--. 2017 for the Deschutes County Board of Commissioners. Tammy Baney, Chai aq�� ' Anthony DeBone, Vice Chair n ATTEST: JU-1 rel ,�& Philip G. He I erson, Commissioner ecording Secret ry Minutes of Board of Commissioners' Business Meeting March 6, 2017 Page 6 of 6 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 AM, MONDAY, MARCH 6, 2017 Barnes and Sawyer Rooms - Deschutes Services Center — 1300 NW Wall Street — Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be considered or discussed 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. Business Meetings are usually recorded on video and audio, and can be viewed by the public live or at a later date; and written minutes are taken for the record. CALL TO ORDER PLEDGE OF ALLEGIANCE 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 Chair calls on you to speak. PLEASE NOTE. Citizen input regarding matters that are or have been the subject of a public hearing not being conducted as a part of this meeting will NOT be included in the official record of that hearing. If you offer or display to the Board any written documents, photographs or other printed matter as part of your testimony during a public hearing, please be advised that staff is required to retain those documents as part of the permanent record of that hearing. CONSENT AGENDA 1. Consideration of Signature of Order No. 2017-007, Declaring Certain Deschutes County Sheriff's Office Personal Property Surplus and Authorizing Sale 2. Consideration of Signature of Resolution No 2017-011, Declaring Surplus Property - Elections Tabulation Scanners 3. Board Signature of Letter of Resignation of Broc Stenman, Historical Landmarks Commission thanking him for his service Board of Commissioners Business Meeting Agenda Monday, March 6, 2017 Page 1 of 3 ACTION ITEMS 4. PUBLIC HEARING: Consideration of Administrative Decision to Establish a Marijuana Production Facility in the Exclusive Farm Use (EFU) Zone. - Jacob Ripper, Associate Planner CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 5. Consideration of Signature of Document No. 2017-112, Amendment to Agreement Between Deschutes County 911 Service District and Harris Corporation - Steve Reinke, Communications Director 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. 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. Board of Commissioners Business Meeting Agenda Monday, March 6, 2017 Page 2 of 3 ® Deschutes County encourages persons with disabilities to participate in all programs and 011 activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.org/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 Business Meeting Agenda Monday, March 6, 2017 Page 3 of 3 O` BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: Date: j�� .o 6� L Name U,,�� 1 Address j o r '� r,G I OI' Phone #s E-mail address L" �)Jtac-,Y-6 In Favor ❑ Neutral/Undecided ❑ Opposed Submitting1-1 written documents as part of testimony? Yes ❑ No If so, please give a copy to the Recording Secretary for the record. SUN ect: BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Date: 1 , (- ,� 17 Name 6� e (A A'2 0 `.. � . Address M0 Phone #s ` E-mail address .. , Favor ❑ Neutral/Undecided0 Opposed In Submitting written documents as part of testimony?,E Yes F] No If so, please give a copy to the Recording Secretary for the record. J�Es C { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subj ect: Pt YkO- k JIJ kTA PK 4ff Ow o µ G Date: 3 Name NW Address k-7.3 9444 K� 9,0. Phone #s • SOV b OZ - E -mail address Sj V b'N ve A W T Nt- 0 Go u1 kG \04 • &10 �N ❑ In Favor ❑ Neutral/Undecided Opposed Submitting written documents as part of testimony? ❑ Yes ® No If so, please give a copy to the Recording Secretary for the record. Subject: Name Address BOARD OF COMMISSIONERS' MEETING Phone #s` E-mail address REQUEST TO SPEAK Date ❑ In Favor ❑ Neutral/Undecided Ft Opposed Submitting written documents as part of testimony? ❑ Yes ❑ No If so, please give a copy to the Recording Secretary for the record. Subject: Name Address BOARD OF COMMISSIONERS' MEETING I REQUEST TO SPEAK Date: Phone #s E-mail address ��n.. ' " ��r �. �r �h� � � �..r ,' CJ �� d� ,t` CALPV�= ❑ In Favor ❑ Neutral/Undecided Opposed Submitting written documents as part of testimony? F Yes No If so, please give a copy to the Recording Secretary for the record. a BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: Date: s� Name— Address ame Address Phone #s LZ ° " E-mailaddress �",r ❑ In Favor ❑ Neutral/Undecided Opposed 9 Submitting written documents as part of testimony? ❑ Yes FV1 No If so, please give a copy to the Recording Secretary for the record. { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: 12 VC .m A P Lbcd lx, Date: r Name P�. Address r 4 Phone #s E-mail address 0 -1 -Me, i L. C F] In Favor 1-1 Neutral/Undecided Opposed Submitting written documents as part of testimony? ❑ Yes CNo If so, please give a copy to the Recording Secretary for the record. Subject: Name _�XF1 Address. 3' BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Phone #s °'- E-mail address Date: Ry,,;x 1-1 In Favor F—] Neutral/Undecided 64, Opposed Submitting written documents as part of testimony? 1-1 Yes No If so, please give a copy to the Recording Secretary for the record. Subject: e� Name Address BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Phone #s E-mail address ❑ In Favor ❑ Neutral/Undecided Opposed Submitting written documents as part of testimony? ,,Yes ❑ No If so, please give a copy to the Recording Secretary for the record. Subject: I21=4 Address BOARD OF COMMISSIONERS' MEETING N h REQUEST TO SPEAK M C, 'J p j� (� i C A ty Dater' oo*1 'ft Phone #s E-mail address ❑ In Favor ❑ Neutral/Undecided Opposed Submitting written documents as part of testimony. 2(Yes 1:1No If so, please give a copy to the Recording Secretary for the record. STAFF MEMORANDUM FILE NUMBER: 247-17-000036-A (247 -16 -000600 -AD) OWNER: Rubio Real Estate Investments, LLC 2979 NW 17th St. Redmond, OR 97756 APPLICANT/AGENT: ATTORNEY FOR APPLICANT: APPELLANT Douglas R. White Oregon Planning Solutions 60762 River Bend Dr. Bend, OR 97702 Lisa Klemp Bryant Emerson, LLP PO Box 457 Redmond, OR 97756 Monika & Lance Piatt 23095 Alfalfa Market Rd. Bend, OR 97701 PROPOSAL: The applicant requested approval of an Administrative Determination to establish a marijuana production facility in the Exclusive Farm Use (EFU) Zone. The administrative decision issued by staff was appealed. ADMINISTRATIVE January 11, 2017 DECISION ISSUED: APPEAL FILED: January 17, 2017 HEARING DATE: March 6, 2017 STAFF REVIEWER: Jacob Ripper, Associate Planner STAFF COMMENT: This memorandum supplements the Findings and Decision for the above-mentioned land use application. This memorandum does not replace previous staff findings in the Findings and Decision, but supplements those previous findings in consideration of the appellant's objections listed in the Notice of Appeal. {)trrzdily ey-vices,d'c$forrrmed7vithPride STANDARDS & APPLICABLE CRITERIA Title 18 of the Deschutes County Code, the County Zoning Ordinance Chapter 18.80, Airport Safety Combining Zone Chapter 18.116, Supplementary Provisions Title 22 of the Deschutes County Code, the Development Procedures Ordinance 11. OBJECTIONS & FINDINGS BASIC FINDINGS A. SITE DESCRIPTION: The subject property is approximately 20.05 acres in size according to County Assessor's records, and rectangular in shape. The property slopes slightly down to the southwest and has a vegetative cover of juniper trees scattered in pockets throughout. A large rock outcrop exists in the eastern -center of the property. APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: Can these structures be permitted/built apart from the large rock outcrop, previously approved for the building site? Further, does the proposed extra nearly 2k sq ft of built space (over the allowed 10k sq ft grow operation) comply with the EFU zoning when it is being placed in previously irrigated pasture? STAFF FINDING: The rocky outcrop referred to above is associated with the building envelope for the nonfarm dwelling approved by file 247 -15 -000103 -CU. The building envelope applies to the dwelling and those uses which are accessory to the dwelling. It limits residential development to the area of the property previously identified in the nonfarm dwelling approval as the least suitable area for farm use. Because the proposed marijuana production is not an accessory residential use, these structures may be located outside of the nonfarm dwelling building envelope. The Central Oregon Irrigation District was sent a Notice of Application and did not respond. B. AGENCY COMMENTS: The Findings and Decision stated: The Planning Division mailed notice and received comments from the following agencies: Deschutes County Senior Transportation Planner, Peter Russell: I have reviewed the transmittal materials for 247 -16 -000600 -AD for a 10,000 -square -foot marijuana production (growing) operation within one 4,000 -square foot building and two greenhouses of 3,000 square feet each in the Exclusive Farm Use (EFU) zone at 23105 Alfalfa Market Road, aka 17-13-33A, Tax Lot 201. The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook does not contain a category for marijuana production. In consultation with the Road Department Director and Planning staff, the County has determined the best analog use is Warehouse (Land Use 150) based on the storage requirements and employees of this activity. Warehouse generates daily trips at a rate of 3.56 trips 247-17-000036-A (247 -16 -000600 -AD) Page 2 of 13 per 1,000 square feet. The application indicates the site will have 10,000 square feet of building devoted to cannabis production. The resulting trip rate would be 36 daily trips (3.56 X 10). Deschutes County Code (DCC) at 18.116.310(C)(3)(a) states no further traffic analysis is needed if there are 50 or less new weekday trips generated from the use. The proposed land use will not meet this minimum threshold for additional traffic analysis. Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $3,852 per p.m. peak hour trip. The ITE indicates Warehouse generates 0.32 p.m. peak hour trips per 1,000 square feet, which in this instance would result in 3.2 p.m. peak hour trips (0.32 X 10). Thus the applicable SDC would be $12,326 (1.6 X $3,852). The SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: Senior Transportation Planner, Peter Russell reviewed for a total of 10k sq ft production and the analogy of warehouse use, NOT for the 12k sq ft production operation. Furthermore, was this particular section of Alfalfa Market Road considered? There is a Blind Turn, with 5 Hidden driveways (including this one), safety accessing arterials, granting large access for this commercial business, level of safety/service, speeds exceeding 55 mph, traffic studies and lastly DUls. STAFF FINDING: The appellant is correct in determining that the Senior Transportation Planner reviewed the initial proposal and not the revised proposal. Staff requested the applicant to submit additional materials to address missing or unclear information prior to deeming the application complete. The applicant is allowed to amend their application in response to a request for additional information from staff, as discussed in a section below. On February 22, 2017, staff notified the Senior Transportation Planner of the revisions and he responded with the following comments: Here are the revised comments as 247 -16 -000600 -AD is being heard as a de novo appeal and the total size of the buildings have changed between my comments and the approval. The current proposal is for three buildings comprising 11, 760 square feet. Daily trips, based on Warehouse (LU 150) would be 42 new weekday trips (11.76 square feet X 3.56 trips 1, 000 square feet.) No further traffic analysis is needed. SDC, based on Warehouse generating 0.32 trips per 1,000 square feet: 3.8 p.m. peak hour trips (0.32 X 11.76). The resulting SDC would be $14,638 (3.8 p.m. peak hour trips X $3,852 per trip). C. PUBLIC COMMENTS The Planning Division mailed a Notice of Application to property owners within 750 feet of the subject property on October 12, 2016. Two public comment letters were received and raised the following concerns: 1. Odor control 2. Light pollution 247-17-000036-A (247 -16 -000600 -AD) Page 3 of 13 3. Use of a secure waste receptacle 4. Visual impacts 5. Neighborhood crime 6. Criminal trespassing 7. Environmental impacts from the use of pesticides and fungicides 8. Property value impacts APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: It is noted that Deschutes County does not authorize to review concerns of Neighborhood Crime, Criminal Trespassing, Environmental and Property Value impacts. Please Note that you are approving this "vacant" facility in the midst of family homes, many with children and grandchildren. STAFF FINDING: The Deschutes County Code (DCC) does not authorize the Planning Division to review concerns 5 - 8 above in relation to the proposal. Applicable criteria of the DCC, including spatial separation from off-site dwellings, were addressed in the Findings and Decision. TITLE 22, DESCHUTES COUNTY DEVELOPMENT PROCEDURE ORDINANCE A. Chapter 22.08, General Provisions 22.08.030, Incomplete Applications. A. If an application is incomplete, the planning director shall, within 30 days of receipt of the application, notify the applicant in writing of exactly what information is missing. The applicant may amend his application or submit a new application supplying the missing information. APPELLANT'S OBJECTION: The appellant expressed concerns that the Notice of Application described the proposed structures differently than what was described in the Notice of Decision. The appellant questions if the increased building footprint requires that a new land use application is made. STAFF FINDING: The applicant submitted the application on October 4, 2016. A Notice of Application was mailed on October 12, 2016. Staff determined the application was incomplete on November 2, 2016, and notified the applicant in writing. The applicant submitted additional materials amending the application and provided the missing information staff requested. The application was deemed complete on December 19, 2016. The additional materials are included in the public record. The difference in proposal descriptions occurred because the applicant amended the submitted materials. Staff finds a new application is not required. 247-17-000036-A (247 -16 -000600 -AD) Page 4 of 13 TITLE 18, DESCHUTES COUNTY ZONING ORDINANCE A. Chapter 18.116, Supplementary Provisions Section 18.116.330, Marijuana Production, Processing, and Retailing_ B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: i. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. C. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10, 000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: Maximum Nature [sic] Plant Canopy size is 10k sq. feet, HOW will the additional 2k sq. feet be used in the 6k building/shop/warehouse? Please specify and provide additional information. STAFF FINDING: The applicant has proposed a maximum of 9,760 square feet in mature plant canopy area, as allowed under subsection (c) for properties with a lot area equal to or greater than 20 acres and less than 40 acres. The subject property is 20.05 acres in size. The proposal consists of a maximum mature plant canopy of 9,760 square feet within three structures. Those three structures are one 6,000 square foot building with 4,000 square feet of mature plant canopy, and two 2,880 square foot greenhouses with a combined 5,760 square feet of mature plant canopy. In the larger structure, the 2,000 square feet which are 247-17-000036-A (247 -16 -000600 -AD) Page 5 of 13 not dedicated to the mature plant canopy have not been identified for a particular use or uses by the applicant. Staff notes that additional space within marijuana production facilities is typically used for drying, propagation, harvesting, and other uses associated with marijuana production. When building permits are applied for, staff will review them for compliance with this decision. Staff concludes this criterion applies to the area of the mature marijuana plant canopy and not to areas used for associated or subordinate activities. 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot. APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: WHO holds this one license? Agent: Douglas R. White or Owner: Rubio Real Estate Investments LLC? STAFF FINDING: The proposed use includes only one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production site. The criterion does not require the applicant to identify an individual but does limit the number of licensed or registered grow sites to one site per parcel. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and V. National monuments and state parks. b. For purposes of DCC 18.116.330(8)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area 247-17-000036-A (247 -16 -000600 -AD) Page 6 of 13 occupied by the marijuana producer or marijuana processor. C. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(6)(7) if the use is: L Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: The applicant states the closest school is 15,000' from the property. With 27 properties within 1,000' of said property, may we continue this search to include any In Home Day Care/Babysitting facility? STAFF FINDING: According to Deschutes County GIS and the applicant's submitted materials, none of the properties within 1,000 feet of the subject property are in a use described in the above section or are subject to subsection (c). The appellant has not presented evidence to the contrary. Staff notes the criterion of subsection (a)(iii) above refers to licensed child care centers and not licensed or unlicensed child care occurring within a residential structure. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. C. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: i. Be on a form provided by the County and shall contain the following information; ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; iii. Include a description of the proposed marijuana production or marijuana processing operation; and iv. Include a legal description of the private road or easement. 247-17-000036-A (247 -16 -000600 -AD) Page 7 of 13 APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: The driveway is on their property, however, do they need a NEW access/Driveway permit, for a change in use for this commercial Marijuana Production Facility? STAFF FINDING: The Deschutes County Senior Transportation Planner responded to the Notice of Application and indicated a transportation impact analysis was not required for the proposed use. A driveway was approved for the subject property by permit 247-SW1446, issued on May 9, 1997. Staff requested the County Engineer at the Road Department to clarify if a new driveway access permit for a change of use is required. The Road Department responded: On the Road Department end of things, we don't consider the use of the property when we are approving an access permit. We only look at it to make sure it meets sight distance standards. If they move the location of the driveway from its original approved location, then we would require either a new permit or revisit and revise the original permit to reflect the new location. The applicant has not proposed to change the driveway location, therefore, staff finds the Road Department would not require a new driveway permit. 10. Odor. As used in DCC 18.116.330(6)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. C. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. 247-17-000036-A (247 -16 -000600 -AD) Page 8 of 13 e. The system shall be maintained in working order and shall be in use. APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: Odor as used in 18.116.330(B)(10): The applicant's by a [sic] Mechanical Engineer licensed in OR, states the odor will be controlled in the Greenhouses. However, the odor must also be controlled in the 6000' sq ft building? With what method? STAFF FINDING: The agent submitted a letter dated November 23, 2016, from Registered Professional Engineer Robert James stating, "for odor control in the shop building (indoor grow area), all exhausted air will pass through carbon filters before being exhausted outside the building". Staff added an ongoing condition of approval to the decision to ensure ongoing compliance with the above requirements. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is exempt from protections of DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is permitted. APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: Greenhouse fans will not run at night, HVAC system for 6k Shop Building, similar to a home system. What is the use for this building? Additionally, there are outdoor condensing units. STAFF FINDING: The applicant has submitted a letter dated November 23, 2016, from Registered Professional Engineer Robert James. Staff found the engineer's statements satisfied the requirements of this section. The 6,000 square -foot structure is one of three structures proposed as part of the marijuana production facility. 13. Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider; or C. Proof from the Oregon Water Resources Department that the water to be used is from a source that does not require a water right. 247-17-000036-A (247 -16 -000600 -AD) Page 9 of 13 APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: Proof from the Oregon Water Resources Dept that the water used is from a source that does not require a water right. STAFF FINDING: The applicant stated that water is provided by Avion and irrigation is provided by Central Oregon Irrigation District. Staff notes the criteria in subsections (a) and (b) end with "or" and not with "and", indicating documentation from only one of subsections (a), (b), or (c) need to be provided to satisfy this requirement. 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: No Processing is proposed by the applicant or owner. Deschutes County Code defines "Marijuana Processing" as: processing, compounding, or conversion into cannabinoid products, concentrates, or extracts, provided that the processor is licensed by OLCC or registered with the OHA. STAFF FINDING: No processing was proposed and staff found this section did not apply. Staff is unclear as to the nature of the objection. Staff suggests the appellant provide additional information if they believe this criterion applies. 16. Security Cameras. if security cameras are used, they shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC or the OHA. APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: As this facility is vacant and [there is] no residence on this property, what security cameras and methods will be in place? Crime, theft, trespassing are concerns. FINDING: The applicant agreed to the requirements of this section and stated all cameras will only record the subject property. Staff understands this criterion does not require security cameras to be used and does not require additional security measures. 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). 247-17-000036-A (247 -16 -000600 -AD) Page 10 of 13 APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: The Applicant did not specify where the waste will be stored or how it will be secured. OLCC's licensing requirements in OAR 845-025-7750(1)(b) require the applicant to meet these requirements, under the control of the licensee. There are concerns of the impact on soil, water and the environment. Please provide additional specifics. STAFF FINDING: The applicant did not identify the location of the secure waste receptacle. Staff added a condition of approval to ensure compliance. The Hearings Body may request additional information from the applicant to determine compliance with the above criterion. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited: i. A new dwelling used in conjunction with a marijuana crop; ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(0), used in conjunction with a marijuana crop; iii. A commercial activity, as described in ORS 215.213(2)(c) or 215.283(2)(a), carried on in conjunction a marijuana crop; and iv. Agri -tourism and other commercial events and activities in conjunction with a marijuana crop. APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: (a)(i) A New Dwelling used in conjunction with a Marijuana crop. Will the shop/warehouse have a dwelling? What are future plans for a Residence on this property? (ii) [sic] Commercial Activity (How and Where will these products be sold?) (iv) Agri -Tourism and other Commercial events or activities in conjunction with this crop. NOTE: As an ongoing condition of approval, the uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as production is conducted on the site. STAFF FINDING: None of the prohibited uses were proposed by the applicant. As discussed in the Findings and Decision for this application, a nonfarm dwelling has been approved on this property by file 247 -15 -000103 -CU. Staff notes the uses listed in subsection (a) above are specific uses which may be allowed when conducted in conjunction with a farm use. Staff understands the prohibition applies to these listed uses when they are proposed in conjunction with a marijuana crop, and as prohibited in the Oregon Revised Statutes (ORS) Section 4758.370(2). 247-17-000036-A (247 -16 -000600 -AD) Page 11 of 13 C. Marijuana Retailing APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: Retailing is not mentioned in the Findings and Decision. How and Where will this crop be sold? Are Retail Sales legal in EFU zones? Approval of a conditional use permit and site plans review are required prior to initiating the use. The level of site plan review (new, alteration, change of use) will vary based on the development history of the location. STAFF FINDING: Marijuana retailing was not mentioned in the Findings and Decision because it was neither proposed nor approved. Marijuana retailing is not an allowable use in the EFU zone. Marijuana production does not require site plan review in the EFU zone. D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form:... APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: Each February 1st, Documentation [shall be submitted] demonstrating compliance with the (i) Land use decision and permits (ii) Fire, Health, Safety, Waste Water and building codes and laws. (iii) State of Oregon licensing requirements Finding: Compliance with this annual reporting obligation of this section is required. STAFF FINDING: Compliance with the annual reporting obligation of this section was required as a condition of approval. Staff is unclear as to the nature of the objection. Staff suggests the appellant provide additional information if they believe the applicant cannot or does not comply with this criterion. B. Chapter 18.80, Airport Safety Combining Zone Section 18.80.044. Land Use Compatibility 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 [... ] 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 247-17-000036-A (247 -16 -000600 -AD) Page 12 of 13 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. APPELLANT'S OBJECTION: In the Notice of Appeal and supplemental materials, the appellant states: B. Outdoor Lighting. Finding: The proposed marijuana production facility is a new commercial use. Under Section 20. Prohibited uses: Commercial activity is prohibited... STAFF FINDING: The proposed marijuana production facility is a new commercial use for the purposes of review under DCC 18.80.044(8). A marijuana crop is a farm use', and is not a commercial activity in conjunction with farm use, which is a separate use allowable by a conditional use permit under DCC 18.16.030(E), but is prohibited by DCC 18.116.330(B)(20) when operated in conjunction with a marijuana crop. III. CONCLUSION The Findings & Decision for this application identifies all applicable zoning ordinances and evaluates compliance with the criteria and standards of those ordinances. This memorandum only supplements the findings of compliance with the identified ordinances in relation to the issues raised in the Notice of Appeal. Based on the foregoing Findings and Decision, staff finds that the proposed marijuana production facility can comply with the applicable standards and criteria of the Deschutes County zoning ordinance if conditions of approval are met. Copies of the proposed documents and attachments are available at no cost at the Deschutes County Property Information website (Dial)Z. Copies of the proposed documents and attachments are available for inspection at no cost at the Deschutes County Community Development Department at 117 NW Lafayette Avenue. Copies of the documents and attachments can be purchased at the office for (25) cents a page. Dated this 27th day of February, 2017 Mailed this 27th day of February, 2017 'ORS 475B.370(1) 2 ham://dial.deschutes.orci/Real/DevelopmentDocs/162185 247-17-000036-A (247 -16 -000600 -AD) Page 13 of 13 FINDINGS & DECISION FILE NUMBER: 247 -16 -000600 -AD OWNER: Rubio Real Estate Investments, LLC 2979 NW 17t' St. Redmond, OR 97756 APPLICANT/AGENT: Douglas R. White Oregon Planning Solutions 60762 River Bend Dr. Bend, OR 97702 PROPOSAL: The applicant is requesting approval of an Administrative Determination to establish a marijuana production facility in the Exclusive Farm Use (EFU) Zone. STAFF CONTACT: Jacob Ripper, Associate Planner I. APPLICABLE CRITERIA Title 18 of the Deschutes County Code, the County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zones Chapter 18.80, Airport Safety Combining Zone Chapter 18.116, Supplementary Provisions Title 22 of the Deschutes County Code, the Development Procedures Ordinance II. BASIC FINDINGS A. Location: The subject property has an assigned address of 23105 Alfalfa Market Rd., Bend, and is identified on County Assessor's Map 17-13-33A, as tax lot 201. B. Lot of Record: The subject property is a legal lot of record because it is Parcel 2 of the Minor Land Partition MP -83-13, and recorded with the County Surveyor as CS03304. C. Zoning: The subject property is zoned Exclusive Farm Use — Tumalo/Redmond/Bend Subzone (EFU-TRB) and is within the Airport Safety (AS) combining zone. D. Proposal: The applicant is requesting approval of an Administrative Determination to establish a marijuana production facility in the Exclusive Farm Use (EFU) zone. The proposal consists of a maximum mature plant canopy size of 9,760 square feet within three structures. Those three structures are one 6,000 square foot building with 4,000 square feet of mature plant canopy, and two 2,880 square foot greenhouses with a combined 5,760 square feet of mature plant canopy. E. Site Description: The subject property is approximately 20.05 acres in size according to County Assessor's records, and rectangular in shape. The property slopes slightly down to the southwest and has a vegetative cover of juniper trees scattered in pockets throughout. A large rock outcrop exists in the eastern -center of the property. F. Surrounding Land Uses: The subject property is surrounded to the north, east, and west by rural residential uses and small-scale hobby farms on lands zoned EFU-TRB. To the south and southwest are other rural residential uses and hobby farms on lands zoned Multiple -Use Agricultural (MUA-10). The hobby farm uses consist of livestock, irrigated pasture and hay production. Approximately 1,300 feet to the east are Federally -owned vacant lands and zoned EFU-AL. G. Land Use History: The subject property received a conditional use permit approval to establish a nonfarm dwelling under file CU -05-6. That land use permit expired prior to the use being established. Another conditional use permit under file 247 -15- 000103 -CU approved an application to re-establish the expired nonfarm dwelling approval. The nonfarm dwelling has not been established as of the date of mailing of this Findings & Decision. A property line adjustment under file 247 -15 -000280 -LL approved an adjustment between the subject property and the properties identified on County Assessor's Map 17-13-28 as tax lots 1600 and 1601. The result of the property line adjustment would be a consolidation of tax lot 1601 with tax lot 201. The property line adjustment has not received final approval because copies of the recorded survey and new deeds have not been submitted to the Planning Division as of the date of mailing of this Findings & Decision. H. Public Agency Comments: The Planning Division mailed notice and received comments from the following agencies: Deschutes County Building Division: The Deschutes County Building Safety Divisions code required Access, Egress, Setback, Fire & Life Safety Fire Fighting 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. Deschutes Countv Senior Transportation Planner, Peter Russell: I have reviewed the transmittal materials for 247 -16 -000600 -AD for a 10,000 -square -foot marijuana production (growing) operation within one 4,000 -square foot building and two greenhouses of 3,000 square feet each in the Exclusive Farm Use (EFU) zone at 23105 Alfalfa Market Road, aka 17-13-33A, Tax Lot 201. The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook does not contain a category for marijuana production. In consultation with 247 -16 -000600 -AD Page 2 of 22 the Road Department Director and Planning staff, the County has determined the best analog use is Warehouse (Land Use 150) based on the storage requirements and employees of this activity. Warehouse generates daily trips at a rate of 3.56 trips per 1,000 square feet. The application indicates the site will have 10,000 square feet of building devoted to cannabis production. The resulting trip rate would be 36 daily trips (3.56 X 10). Deschutes County Code (DCC) at 18.116.310(C)(3)(a) states no further traffic analysis is needed if there are 50 or less new weekday trips generated from the use. The proposed land use will not meet this minimum threshold for additional traffic analysis. Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $3,852 per p.m. peak hour trip. The ITE indicates Warehouse generates 0.32 p.m. peak hour trips per 1,000 square feet, which in this instance would result in 3.2 p.m. peak hour trips (0.32 X 10). Thus the applicable SDC would be $12,326 (1.6 X $3,852). The SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. Bend Fire Department: General Safety Provisions: Hazard Communication • Material Safety Data Sheets shall be on property and made easily accessible to the fire code official. Section 5003.4 of the 2014 Oregon Fire Code • Containers and/or packages related to hazardous materials shall be properly labeled and warning signage shall be properly displayed and easily visible. Section 5003.5.1 of the 2014 Oregon Fire Code. • All persons shall be trained on what to do in the event of an emergency involving hazardous materials on the property. Sections 406 and 407 of the 2014 Oregon Fire Code. • NFPA 704 hazard identification signs shall be placed on stationary containers and above ground tanks and at entrances to locations where hazardous materials are stored, dispensed, used, or handled in quantities requiring a permit and at specific entrances and locations designated by the fire code official. Section 5003.5 of the 2014 Oregon Fire Code. Building and Equipment Design Features: Interior Finishes • Interior finishes (Visqueen® or Mylar® type plastic/polyethylene or polyester to cover walls and ceilings) must comply with flame spread ratings in accordance with Table 803.3 of the 2014 Oregon Fire Code. Exits and Exit Signage, Egress: Security measures shall not conflict with the maintenance and operation of exiting and egress. • Means of egress shall not be concealed in any way. Section 1008.1 of the 2014 Oregon Fire Code. • Exit doors and their function shall not be eliminated or modified in any way without prior approval of the Building Official. Section 1001.2 of the 2014 Oregon Fire Code. • Slide bolts and security bars installed on emergency egress doors are prohibited. Section 1008.1.9.4 of the 2014 Oregon Fire Code. 247 -16 -000600 -AD Page 3 of 22 Fire Extinguishers: • Provide 10 lb. ABC 4A:80B: C portable fire extinguishers through the facility to achieve a maximum travel distance of no more than 75 feet to each fire extinguisher. Section 906.1 of the 2014 Oregon Fire Code. Fire Apparatus and Building Access: • Buildings/facilities associated with the production of marijuana shall have at least one all-weather road 20 feet wide and supporting fire apparatus up to 60,000 GVW. Section 503.2 of the 2014 Oregon Fire Code. • Gates across fire apparatus access road shall be approved by the fire code official. Section 503.6 of the 2014 Oregon Fire Code. • The installation of a Knox Box® and/or Knox® Key Override shall be installed to provide rapid entry. Section 506.1 of the 2014 Oregon Fire Code. Fire Protection Water Supplies: • 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. Section 507.1 of the 2014 Oregon Fire Code. • Fire flow requirements for buildings or portions of buildings shall be determined by an approved method. Documentation of the available fire flow shall be provided to the fire code official prior to final approval of the water supply system. • In areas without water supply systems, the fire code official is authorized to use NFPA 1142 in determining fire flow requirements. Appendix B107.1 of the 2014 Oregon Fire Code. Hazardous Materials and Operations: • Provide information to the fire code official on the use of Carbon Dioxide and Carbon Dioxide generators related to the marijuana production operation. The use of Carbon Dioxide or Carbon Dioxide Generators creating an asphyxiation hazard shall require monitoring, detection and an audible alarm. Chapter 50 of the 2014 Oregon Fire Code. Other Fire Service Features: • 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. Numbers shall be a minimum 4 inches high with a minimum stroke width of 0.5 inch. 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 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. Section 505.1 of the 2014 Oregon Fire Code. The following agencies either had no comment or did not respond to the notice: Avion Water Company, Bend/La Pine School District, Bend Municipal Airport, Central Oregon Irrigation District, Deschutes County Assessor, Deschutes County Environmental Soils Division, and Oregon Liquor Control Commission. 247 -16 -000600 -AD Page 4 of 22 I. Public Comments: The Planning Division mailed a written notice of this application to property owners within 750 feet of the subject property on October 12, 2016. Two public comment letters were received and raised the following concerns: 1. Odor control 2. Light pollution 3. Use of a secure waste receptacle 4. Visual impacts 5. Neighborhood crime 6. Criminal trespassing 7. Environmental impacts from the use of pesticides and fungicides 8. Property value impacts Staff Comment: The Deschutes County Code (DCC) does not authorize the Planning Division to review concerns 5 - 8 above in relation to the proposal. Applicable criteria of the DCC are addressed in the findings below. J. Review Period: This application was submitted on October 4, 2016. It was deemed incomplete on November 2, 2016. After the applicant submitted additional information, the application was accepted and deemed complete on December 19, 2016. The 150`" day on which the county must take final action on this application is May 18, 2017. Ill. CONCLUSIONARY FINDINGS A. Chapter 18.16, Exclusive Farm Use Zones 1. Section 18.16.020. Use Permitted Outright. The following uses and their accessory uses are permitted outright: S. Marijuana production, subject to the provisions of DCC 18.116.330. FINDING: The proposed marijuana production facility is an allowable use permitted outright in the EFU zones, subject to the provisions of DCC 18.116.330, which are reviewed below. 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: No elevation drawings were submitted by the applicant. This criterion can be met by the imposition of a condition of approval. Prior to issuance of building permits, the applicant shall submit elevation plans demonstrating all structures shall not exceed 30 feet in height. 247 -16 -000600 -AD Page 5 of 22 3. 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 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: Staff finds the subject property's northern property line is the front property line. Alfalfa Market Road to the north is an arterial road, therefore the required front yard setback is 100 feet. The revised site plan indicates the three proposed structures are clustered together and the closest structure is approximately 330 feet from the northern front property line. The proposal is not for a non-farm dwelling, therefore, the required side and rear yard setbacks are 25 feet. The submitted plot plan indicates the clustered structures will have a western side yard setback of 115 feet, an eastern side yard setback of approximately 445 feet, and a southern rear yard setback of approximately 820 feet. The required yard setbacks of subsections A, B, and C are met. Any greater setbacks required by applicable building or structural codes will be addressed during building permit review. B. Chapter 18.116, Supplementary Provisions Section 18.116.330, Marijuana Production, Processing, and Retailing. A. Applicability. Section 18.116.330 applies to: 1. Marijuana Production in the EFU, MUA-10, and RI zones. 2. Marijuana Processing in the EFU, MUA-10, TeC, TeCR, TuC, Tul, RI, and SUBP zones 3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, Tul, RC, Rl, SUC, SUTC, and SUBP zones. 4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP zones. FINDING: The applicant has proposed Marijuana Production in the EFU zone. This section applies. 247 -16 -000600 -AD Page 6 of 22 B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 1. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. FINDING: The subject property is a legal lot of record and is 20.05 acres in size. This standard is met. 2. Indoor Production and Processing. a. In the MUA-10 zone, marijuana production and processing shall be located entirely within one or more fully enclosed buildings with conventional or post framed opaque, rigid walls and roof covering. Use of greenhouses, hoop houses, and similar non- rigid structures is prohibited. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. C. In all zones, marijuana production and processing are prohibited in any outdoor area. FINDING: The subject property is within the EFU zone. The applicant has proposed that production will occur within one (1) 6,000 -square -foot fully enclosed structure, and two (2) 2,880 square foot greenhouses, complying with these criteria. These criteria can be met. As an ongoing condition of approval, marijuana production and processing are prohibited in any outdoor area. 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: i. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated 247 -16 -000600 -AD Page 7 of 22 with a 5,000 square foot canopy area operation. C. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. FINDING: The applicant has proposed a maximum of 9,760 square feet in mature plant canopy area, as allowed under subsection (c) for properties with a lot area equal to or greater than 20 acres and less than 40 acres. The subject property is 20.05 acres in size. This criterion will be met. 4. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with marijuana production and processing on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in lot area: Z500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. FINDING: The subject property is not located in the MUA-10 Zone. This criterion does not apply. 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot. FINDING: The proposed use includes only one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production site. This criterion will be met. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. b. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. C. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or 247 -16 -000600 -AD Page 8 of 22 greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. FINDING: The submitted plot plan indicates the marijuana production structures are a minimum of 115 feet from all property lines. The applicant submitted a revised site plan demonstrating the closest off-site dwelling is 320 feet northwest of the subject marijuana production area, meeting the requirement under subsection (b) above. These criteria will be met. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1000 feet from: L A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and V. National monuments and state parks. b. For purposes of DCC 18.116.330(6)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. C. A change in use of another property to those identified in DCC 18.116.330(6)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: L Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. FINDING: The applicant states the closest use requiring separation is approximately 15,000 feet from the subject property and is the New Leaf Academy, a private school. Twenty-seven (27) properties are wholly or partially within 1,000 feet of the subject property. According to 247 -16 -000600 -AD Page 9 of 22 Deschutes County GIS, none of these properties are in a use described in the above section or are subject to subsection (c). These criteria are met. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road, or b. Have access from a private road or easement serving only the subject property. C. /f the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: i. Be on a form provided by the County and shall contain the following information; ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; iii. Include a description of the proposed marijuana production or marijuana processing operation; and iv. Include a legal description of the private road or easement. FINDING: The applicant proposes a maximum canopy size of 9,760 square feet. These criteria apply. The tract' owned by Rubio Real Estate Investments includes a 0.22 acre tax lot (Assessor's Map 17-13-28, tax lot 1601) which is north of and adjacent to the subject property. Tax lot 1601 has frontage on Alfalfa Market Road. A property line adjustment approval under file 247 -15 -000280 -LL approved a consolidation of tax lot 1601 with the subject tax lot 201. According to Planning Division records, it does not appear the property line adjustment was perfected, meaning a survey and/or deeds, as required by the decision, were recorded with the County Clerk and copies of those recorded documents returned to the Panning Division for review. Regardless, staff finds both tax lots comprise a tract of land which has frontage on a public road and the access requirements of this section are met. 9. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or ' "Tract," as used in DCC 18.16, 18.36 and 18.40 means one or more contiguous lots or parcels in the same ownership. A tract shall not be considered to consist of less than the required acreage because it is crossed by a public road or waterway. DCC 18.04.030. 247 -16 -000600 -AD Page 10 of 22 a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. C. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15.10, Outdoor Lighting Control. FINDING: The agent states, "No lighting from inside [the] building or greenhouse[s] will be visible from 7:00 p.m. to 7:00 a.m. on the following day or projected upward. No lighting will be visible from the buildings' interior, and greenhouses will have black -out light deprivation systems installed and operated by auto timers. Light cast by exterior light fixtures other than marijuana grow lights will comply with DCC 15. 10, Outdoor Lighting Control". These criteria can feasibly be met. Staff adds the following ongoing conditions of approval to ensure compliance with the above section: Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. 10. Odor. As used in DCC 18.116.330(6)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. C. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: L Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. 247 -16 -000600 -AD Page 11 of 22 e. The system shall be maintained in working order and shall be in use. FINDING: The agent has submitted a letter dated November 23, 2016, from Registered Professional Engineer Robert James stating that odor will be controlled in the greenhouses by an automatic exhaust fan system that utilizes a fogger to control odor and will satisfy the requirements of DCC 18.116.330(B)(10)(d)(ii) above. The engineer goes on to state the odor control system inside the building will use carbon filters to satisfy these requirements. This criterion can be met. As an ongoing condition of approval, proposed odor control system must at all times prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is exempt from protections of DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is permitted. FINDING: The agent has submitted a letter dated November 23, 2016, from Registered Professional Engineer Robert James, which states, "The greenhouse exhaust fans will not operate at night between the hours of 10 pm and 7 am. The HVAC equipment for the shop building does not run continuously. It runs only intermittently, similar to a typical home HVAC system. Therefore, there is no sustained noise from this equipment. Additionally, the outdoor condensing units will be screened on one side by the shop building and will be screened on the other three sides by a concrete wall. Our calculations indicate that [the] sound level from operating HVAC equipment should not exceed 30 dBA at any property lines between the hours of 10 pm and 7 am, and meets the requirements of County Code Chapter 18.116.330(B)(11)" Staff finds the Engineer's statements satisfy the requirements of this section. These criteria can be met. As an ongoing condition of approval, sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. 12. Screening and Fencing. The following screening standards shall apply to greenhouses, hoop houses, and similar non- rigid structures and land areas used for marijuana production and processing: a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. b. Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials 247 -16 -000600 -AD Page 12 of 22 such as plastic sheeting, hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife Area Combining Zone, if applicable. C. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. d. The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. FINDING: The applicant states that fencing is proposed to enclose the marijuana production area, that no temporary materials will be used, and that all proposed fencing and all wires will be in a muted earth tone color. The applicant has not provided the specific colors or materials of the fencing. The subject property is not in the Landscape Management or the Wildlife Area Combining Zones. The property contains numerous trees that partially screen the proposed structures from view from the public right of way and from adjacent properties. Furthermore, the structure exceeds setbacks from property lines required by DCC sections 18.16.070 and 18.116.330(B)(6). These criteria can be met, and staff adds the following conditions to ensure compliance with the above criteria of this section. As an ongoing condition of approval, fencing and wire shall be finished in a muted brown, green, or natural wood color and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc. As an ongoing condition of approval, the existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit the maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. 13. Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider; or C. Proof from the Oregon Water Resources Department that the water to be used is from a source that does not require a water right. FINDING: The applicant states that water is provided by Avion and irrigation is provided by Central Oregon Irrigation District. The applicant references a letter from Avion in the file 247- 15 -000103 -CU that states Avion will serve the subject property with potable water. Staff was able to locate this letter dated March 3, 2015. The applicant has also submitted a "Parton 247 -16 -000600 -AD Page 13 of 22 Taxlot Inquiry" from Central Oregon Irrigation District stating the property is served with 10.0 acres of irrigation water for use from April 1 st to October 31 st. These criteria can be met. 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. FINDING: No processing is proposed and this section does not apply. 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. FINDING: The applicant states, "in the above referenced CUP, the record also demonstrates that Central Electric Cooperatives `will serve' the subject property with electricity" Staff was not able to locate the "will serve" letter associated with the CUP file 247 -15 -000103 -CU in Planning Division records. Regardless, a "will serve" letter from the electric utility for the referenced CUP would have been for residential use and would not satisfy this criterion. A commercial marijuana production facility can reasonably be expected to consume more electricity than a typical residential use. Staff finds this criterion can feasibly be met through a condition of approval. Prior to issuance of building permits, a statement from the electric utility company proposed to serve the marijuana production operation, stating that the electric utility company is able and willing to serve the operation, shall be provided to the Planning Division. 16. Security Cameras. If security cameras are used, they shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC or the OHA. FINDING: The applicant agrees to these requirements and states all cameras will only record the subject property. As an ongoing condition of approval, security cameras shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC or the OHA. 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). FINDING: The applicant acknowledged this requirement and states, "marijuana waste will be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee". The applicant did not specify where the waste will be stored or how it will be secured. The OLCC's licensing requirements in OAR 845-025-7750(1)(b) require the applicant to, "store marijuana waste in a secured waste receptacle in the possession of and 247 -16 -000600 -AD Page 14 of 22 under the control of the licensee". Staff finds this criterion can feasibly be met by both an ongoing condition of approval and as part of the licensing requirements for the OLCC. As an ongoing condition of approval, marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee. 18. Residency. In the MUA-10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property: a. An owner of the subject property; b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property; or C. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. FINDING: The subject property is not in the MUA-10 zone. This section does not apply. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC 18.116.330(B)(9) by September 8, 2016 and with the provisions of DCC 18.116.330(6)(10-12, 16, 17) by December 8, 2016. FINDING: The proposal is not for an existing medical marijuana grow site. This section does not apply. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited: i. A new dwelling used in conjunction with a marijuana crop; ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(0), used in conjunction with a marijuana crop; iii. A commercial activity, as described in ORS 215.213(2)(c) or 215.283(2)(a), carried on in conjunction a marijuana crop; and iv. Agri -tourism and other commercial events and activities in conjunction with a marijuana crop. C. In the EFU, MUA-10, and Rural Industrial zonbs, the following uses are prohibited on the same property as marijuana production: L Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. 247 -16 -000600 -AD Page 15 of 22 V. Public Parks. vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. FINDING: None of the prohibited uses have been proposed by the applicant. As an ongoing condition of approval, the uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as Marijuana Production is conducted on the site. D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. C. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). FINDING: Compliance with the annual reporting obligation of this section is required. 247 -16 -000600 -AD Page 16 of 22 As an ongoing condition of approval, the annual reporting requirements of DCC 18.116.330(D) shall be met. C. Chapter 18.80, Airport Safety Combining Zone 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. 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. FINDING: The subject property lies within the conical surface of the Bend Municipal Airport. Therefore, the provisions of this chapter apply. 2. 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(6) and (C), no structure or tree, plant or other object of natural growth shall penetrate an airport imaginary surface. [ORS 836.619; OAR 660-013-0070(1)] FINDING: The subject property is located within the conical surface of the Bend Municipal Airport. The conical surface extends outward and upward from the periphery of the horizontal surface at a slope of 20:12 for a horizontal distance of 4,000 feet and to a vertical height of 2 This ratio is equivalent to 20 feet of horizontal distance for every 1 foot of vertical distance. 247 -16 -000600 -AD Page 17 of 22 350 above the airport elevation. The proposed marijuana production facility is limited to a maximum height of 30 feet and will be located more than 10,000 feet from the airport. Staff finds that the proposed marijuana production facility will not penetrate the conical surface. This criterion will be met. 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. FINDING: The subject property is within the conical surface, therefore this criterion applies. The elevation above sea level for the Bend Municipal Airport is approximately 3,436 feet. The elevation above sea level for the subject property is approximately 3,484 feet. The proposed marijuana production facility will be limited to a maximum height of 30 feet. Therefore, maximum elevation of the structures on the subject property is 3,514 feet. As noted above, the subject property is located more than 10,000 feet from the airport. Staff finds that this maximum elevation will not penetrate the conical surface. 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.) FINDING: No height exceptions or variances are sought by this application; therefore, this criterion does not apply. 3. Section 18.80.044. Land Use Compatibility. 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. When compatibility issues arise, the Planning Director or Hearings Body is required to take actions that eliminate or minimize the incompatibility by choosing the most compatible location or design for the boundary or use. Where compatibility issues persist, despite actions or conditions intended to eliminate or minimize the incompatibility, the Planning Director or Hearings Body may disallow the use or expansion, except where the action results in loss of current operational levels and/or the ability of the airport to grow to meet future community needs. Reasonable conditions to protect the public safety may be imposed by the Planning Director or Hearings Body. [ORS 836.619; ORS 836.623(1); OAR 660-013-0080] 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). Applicants for any subdivision or partition approval or other land use approval or building permit affecting land within airport noise impact boundaries, shall sign and record in the Deschutes County Book of Records, a Declaration of Anticipated Noise declaring that the 247 -16 -000600 -AD Page 18 of 22 applicant and his successors will not now, or in the future complain about the allowed airport activities at the adjacent airport. In areas where the noise level is anticipated to be at or above 55 Ldn, prior to issuance of a building permit for construction of a noise sensitive land use (real property normally used for sleeping or as a school, church, hospital, public library or similar use), the permit applicant shall be required to demonstrate that a noise abatement strategy will be incorporated into the building design that will achieve an indoor noise level equal to or less than 55 Ldn. [NOTE. FAA Order 5100.38A, Chapter 7 provides that interior noise levels should not exceed 45 decibels in all habitable zones.] FINDING: The subject property is not within the noise impact boundary associated with the Bend Municipal Airport. Since the noise level at the subject property is anticipated to be less than 55 Ldn, staff finds that no noise abatement strategy is necessary. 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. FINDING: The proposed marijuana production facility is a new commercial use. The subject property is outside of the airport approach surface and is further than 10,000 feet from the runway, therefore staff finds lighting will not project into or onto any of the protected areas associated with the airport. This criterion is met. 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. FINDING: The submitted application does not indicate what building materials or finishes are proposed. A condition of approval has been added to ensure compliance. Prior to issuance of building permits, the applicant shall submit building plans demonstrating no glare producing materials, including but not limited to unpainted metal or reflective glass, shall be used on the exterior of the proposed structures. 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. 247 -16 -000600 -AD Page 19 of 22 The review authority shall impose such conditions as necessary to ensure that the use does not obscure visibility. FINDING: The proposed marijuana production facility is not an industrial, mining or similar use. This criterion does not apply. 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. Proposals for the location of new or expanded radio, radiotelephone, and television transmission facilities and electrical transmission lines within this overlay zone shall be coordinated with the Department of Aviation and the FAA prior to approval. Approval of cellular and other telephone or radio communication towers on leased property located within airport imaginary surfaces shall be conditioned to require their removal within 90 days following the expiration of the lease agreement. A bond or other security shall be required to ensure this result. FINDING: The proposed marijuana production facility will not cause or create electrical interference. This criterion will be met. 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. In the event of conflict with the underlying zone, the more restrictive provisions shall control. As used in DCC 18.80.044, a limited use means a use that is allowed subject to special standards specific to that use. FINDING: The proposed marijuana production facility will not be located within the runway protection zone (RPZ), the approach surface, or the airport direct and secondary impact areas. This criterion does not apply. IV. CONCLUSION Based on the foregoing Basic and Conclusionary Findings, staff finds that the proposed marijuana production facility can comply with the applicable standards and criteria of the Deschutes County zoning ordinance if conditions of approval are met. 7X016"]MZI APPROVAL, subject to the following conditions of approval. 247 -16 -000600 -AD Page 20 of 22 VI. CONDITIONS OF APPROVAL A. Use & Location: Marijuana production is conditionally approved inside the three proposed structures consisting of one 6,000 square foot building and two 2,880 square foot greenhouses. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. B. Height: Prior to issuance of building permits, the applicant shall submit elevation plans demonstrating all structures shall not exceed 30 feet in height. C. Glare: Prior to issuance of building permits, the applicant shall submit building plans demonstrating no glare producing materials, including but not limited to unpainted metal or reflective glass, shall be used on the exterior of the proposed structures. D. Utility Verification: Prior to issuance of building permits, a statement from the electric utility company proposed to serve the marijuana production operation, stating that the electric utility company is able and willing to serve the operation, shall be provided to the Planning Division. ONGOING CONDITIONS OF APPROVAL E. Lighting: The following lighting standards shall be met. 1. Inside building lighting used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. 2. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light - emitting part. 3. The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. 4. All exterior lighting shall be shielded so that direct light does not project off site. F. Odor: The proposed odor control system must at all times prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. G. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. H. Fencing: Fencing and wire shall be finished in a muted brown, green, or natural wood color and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc. 247 -16 -000600 -AD Page 21 of 22 Screening: The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit the maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. J. Security Cameras: If security cameras are used, they shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC or the OHA. K. Waste: Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee. L. Prohibited Uses: The uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as Marijuana Production and/or Processing are conducted on the site. Marijuana production and processing are prohibited in any outdoor area. M. Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be met. VII. DURATION OF APPROVAL: The applicant shall complete all conditions of approval and obtain placement permits the proposed use 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 01 /dittenby: Jacob Ripper, Associate Planner Reviewed by: Peter Gutowsky, Planning Manager Dated this 11th day of January, 2017 Mailed this 11th day of January, 2017 247 -16 -000600 -AD Page 22 of 22 woaliow6®6uvaaui6uauo7uoq Kowa U069-lo `pua8 Z £8ZL-61L (LP9) :x113 'L8ZL-611 (L76) :auo4d \I �1 �../ J 69LL6 u060i0 —� USIS '01110 0uo1S u0plo0 ZOLL PUUGJ 19�JDA b}IDJI V So �z R' 3dl '110 UDO .0 uanajS�- ON) 'NOISM 22 ONIdIINION3 NOINVB ),- mid02i(d oien J d co 0 0 CD W g5 o - J Z a S Z O _ U O is o mF= c°a S o m m 4 nU oo^o w ° v V) K� �w<o IW—o o.Z 1w E°m' � • W O m I g�ms�o Q m Z N U P a w a •, a zzi., O O a; w a o a U o N =ff o f J w o y ell o 0 n LL m li Q 0 O Q 6 �3NIl i33MOd MON I I I I t' I In' ! R IIII !! :I I l �,lil � I d SONb I I I it id 3AIT 0 SS3OOV 301M ,OL MIN it liI it i !I l J, j !.Iii L w�fl I I tl , I I�! IIII i A Community Development Department gg q lAonm U via can RuO ing Safety rNvision �'ey�ir€ to �etfai �tat� i2iut5u;+: It P,0, B :x, i"00", � i N;,f`� � �..,jl^��'s" Avenue �i :r P; �s �s('�C�� E3 � 7; ('r Pih0 n fit. �`543, 313f 657-5 i i ti? .. FEE: ,2a -o, 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 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 revere 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. �A,pppe�lllants should seek their own legal advice concerning those issue/s. Appellant's Name (print): Ole . `I i y 0111 ` r �'� Phone: Mailing Address:_ _.. A, _�w _..). v iw v =" t`:�..... CitylstatelZip: fir., ._._,............ Land Use Application Being Appealed: ,w ",'� e_ 2-41- l L - DCO IL 00 `A Property Description: Towii hjp Range section 33A Taxi Appellant's signature: EXCEPT AS PROVIDED IN SECTION 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 NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 10/15 Quality Services P erfrpmpled Tvith 11ride � AIM ,Vv io M :1)i LiA v 41 iX f �tPtL.�u ,�' ry-" ....__i'r� Cir ..va..e� " t e Dvi w rt i j ' Ac t `-1, (This page may be photocopied if additional space is needed.) Appeal Application 247-17-000036-A for File 247 -16 -000600 -AD Monika & Lance Piatt 23095 Alfalfa Market Road RECEIVED BY: ,.._ JAN 2 3 2017 DELIVERED B.- /lcmnka _ /_;, 471 n The "Proposal" was for (1) 4k structure and (2) 3k greenhouses and the "Approval" was for (1) 6k structure and (2) 2880 square foot greenhouses for Marijuana Production. Should this substantial change in size have required review through a new land use application? According to 18,116.330 B, Marijuana Production and Processing: 3. Maximum Nature Plant Canopy size is 10k sq feet, HOW will the additional 2k sq feet be used in the 6k building%shop/warehouse? Please specify a�d provide additional information. Deschutes County Code Defines "Marijuana Production" as: The manufacture, planting, cultivation, growing, trimming, harvesting, or drying, provided that the producer is licensed by the Oregon Liquor Control Commission(OLCC), or registered with the Oregon Health Authority(OHA) and a "person designated to produce marijuana by a registry identification cardholder. According to 18.116.330 B. Marijuana Production and Processing: 5. Limitation on License/Grow Site per Parcel. No more than (1) OLCC licensed production or OHA registered medical marijuana grow site shall be allowed per legal parcel or lot. WHO holds this one license? Agent: Douglas R. White or Owner: Rubio Real Estate Investments LLC? 8. Access. The driveway is on their property, however, do they need a NEW access/Driveway permit, for a change in use for this commercial Marijuana Production Facility? Under Basic Findings E: Site Description: Can these structures be permitted/built apart from the large rock outcrop , previously approved for the building site? Further, does the proposed extra nearly 2k sq ft of built space (over the allowed 10k sq ft grow operation) comply with the EFU zoning when it is being placed in previously irrigated pasture? H. Public Agency Comments: Senior Transportation Planner, Peter Russell reviewed for a total of 10k sq ft production and the analogy of warehouse use, NOT for the 12k sq ft production operation. Furthermore, was this particular section of Alfalfa Market Road considered? There is a Blind Turn, with 5 Hidden driveways (including this one), safety accessing arterials, granting large access for this commercial business, level of safety/service, speeds exceeding 55mph, traffic studies and lastly DUIs. Public Comments: It is noted that Deschutes County does not authorize to review concerns of Neighborhood Crime, Criminal Trespassing, Environmental and Property Value impacts. Please Note that you are approving this "vacant" facility in the midst of family homes, many with children and grandchildren. B. Chapter 18.116 Supplementary Provisions 7. Separation Distances: The applicant states the closest school is 15,000' from the property. With 27 properties within 1,000' of said property, may we continue this search to include any In Home Day Care/Babysitting facility? 10. Odor, as used in 18,116.330(B)(10): The applicant's by a Mechanical Engineer Licensed in OR, states the odor will be controlled in the Greenhouses. However, the odor must also be controlled in the 6000' sq ft building? With what method? 11. Noise: Greenhouse fans will not run at night, HVAC system for 6k Shop Building, similar to a home system, What is the use for this building? Additionally, there are outdoor condensing units. 13. (c)Water: Proof from the Oregon Water Resources Dept, that the water used is from a source that does not require a water right. 14. Fire Protection for Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. Findings: No Processing is proposed by the applicant or owner. Deschutes County Code defines "Marijuana Processing" as: processing, compounding, or conversion into cannabinoid products, concentrates, or extracts, provided that the processor is licensed by OLCC or registered with the OHA. 16. Security Cameras: As this facility is vacant and no residence on this property, what security cameras and methods will be in place? Crime, theft, trespassing are concerns. 17. Secure Waste Disposal: The Applicant did not specify where the waste will be stored or how it will be secured. OLCC's licensing requirements in OAR 845-025-7750(1)(b) require the applicant to meet these requirements, under the control of the licensee. There are concerns of the irnpact on soil, water and the environment. Please provide additional specifics. 20. Prohibited Uses: (a)(i) A New Dwelling used in conjunction with a Marijuana crop. Will the shop/warehouse have a dwelling? What are future plans for a Residence on this property? (ii)Commercial Activity (How and Where will these products be sold?) (iv)Agri-Tourism and other Commercial events or activities in conjunction with this crop. NOTE: As an ongoing condition of approval, the uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as production is conducted on the site. C. Marijuana Retailing: Deschutes County Code defines as: The sale of marijuana items to a consumer, provided that the marijuana retailer is licensed by the OLCC for recreational sales or registered with the OHA for medical sales. Retailing is not mentioned in the Findings and Decision. How and Where will this crop be sold? Are Retail Sales legal in EFU zones? Approval of a conditional use permit and site plans review are required prior to initiating the use. The level of site plan review (new, alteration, change of use) will vary based on the development history of the location. D. Annual Reporting: Each February 15`, Documentation demonstrating compliance with the (i) Land use decision and permits (ii)Fire, Health, Safety, Waste Water and building codes and laws. (iii) State of Oregon licensing requirements Finding: Compliance with this annual reporting obligation of this section is required. Section 18.116.340 Marijuana Production Registered by the Oregon Health Authority, Is Agent: Douglas R. White or Owner: Rogelio Rubio registered with the OHA? All new production registered by OMA on or after June 1, 2016 shall comply DCC 18.116.340(A -C) Section 18.80.044 Land Use Compatibility B.Outdoor Lighting. Finding: The proposed marijuana production facility is a new commercial use. Under Section 20. Prohibited uses: Commercial activity is prohibited... IV. Conclusion: Based on Findings, staff finds the production facility can comply with applicable standards and criteria of Deschutes County zoning ordinance if conditions of approval are met. Who will follow up on this at the county so these are met? VI. Conditions of Approval: A. Use & Location. What is the additional 2000 sq ft use in the shop/warehouse, as Maximum mature canopy size is 10,000 sq ft allowed on 20.5 acres of EFU land. Ongoing Conditions of Approval F. Odor: The proposed odor control system must at all times prevent unreasonable interference with neighbors. The odor control system shall be maintained in working order and shall be in use in ALL 3 buildings, not just the greenhouses. Again, what is the odor control in the 6k "building"? G, Noise: Sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10pm and 7am, the following day in ALL 3 buildings, not just the greenhouses. K. Waste: Marijuana waste shall be stored is a secured waste receptacle in the possession of and under the control to the OLCC Licensee. Additional information has been requested by the surrounding property owners, regarding the waste and who is the OLCC Licensee? L. Prohibited Uses: The uses listed in DCC 18,116,330(20) shall be prohibited on the subject site so long as production and processing are conducted on the site, Is Processing Marijuana permitted on this site, in EFU zoning? Is Retail or any form of Marijuana Sales permitted on this site, in EFU zoning? BR'Y'ANT EMERSON, LLP Attorneys at Law March 2, 2017 Deschutes County Board of Commissioners P.O. Box 6005 117 NW Lafayette Avenue Bend, OR 97708 Re: Hearing Monday March 6, 2017 Rubio Real Estate Investments, LLC File Number 247 -17 -000036 -A(247 -16 -000600 -AD Dear Commissioners: Ronald L. Bryant* Steven D. Bryant Alison M. Emerson Lonn T. W. Johnston Lisa Klemp Ricky Nelson *Also admitted in Washington This matter comes before you on appeal from the Administrative Decision approving the proposed marijuana grow operation pursuant to Deschutes County Code. But for one issue, which is addressed further below, my client agrees with the Administrative Decision and asks that the Board affirm the decision. The applicant is requesting that the Board find that the proposed marijuana growing operation, a passive use, be exempt from the application of SDC's in whole, or at a minimum, in part. Section 4(A) of Resolution 2013-020 describes an exemption for farm -related buildings as follows: (A) ...Non-residential, farm -related buildings for growing and/or storing agricultural products to be used on site, and that do not generate additional commercial traffic, are exempt. Here, the structures proposed consist of a 6,000 square foot building, and two temporary style hoop greenhouses that are 2,880 square foot each. These structures will be used for "growing and/or storing" the agricultural product. On-site retail sales and commercial activity for marijuana grows is prohibited and/or restricted by State and County law. As staff addresses on page 12 and 13 of the Staff Memorandum, the marijuana crop production is a farm use, not a commercial activity in conjunction with a farm use. The commercial activity in conjunction with a farm use requires a Conditional Use Permit. (18.16.030(E)). However, DCC 18.116.330(8)(2) prohibits the Conditional Use Commercial Activity when operated in conjunction with a marijuana crop. (Staff Memorandum, page 13) 888 SW Evergreen Avenue ( PO Box 457 I Redmond OR 97756 Phone; 541.548.2151 I Fax: 541.548.1895 BRYANT EMERSON, LLP Attorneys at Law March 2, 2017 Page 2 The County Transportation Department is proposing an SDC in the amount of $14,638. Because there is no ITE for Marijuana Growing Operations, the Department is applying the ITE for a Warehouse use. However, a Warehouse is a more active use generating employee and customer/client trips than do growing marijuana crops. Moreover, this applicant has a processing facility in Bend's industrial area that he will use to process the marijuana into other products. Therefore, a majority of the crop will be used by the applicant himself, further limiting the number of vehicle trips generated by the proposed use. Accordingly, the applicant requests that the Board determine that SDC's do not apply to his application for the passive growing of marijuana. If the Board does apply an SDC, the applicant requests that the Board consider not applying it to the hoop greenhouses which are by design temporary structures, and used exclusively for growing of the crop. Although the County assesses SDC's on other types of temporary structures, such as drive-thru coffee shops, those types of uses are for retail, and generate a significantly greater number of traffic trips which in turn have a greater impact on the infrastructure which is precisely what the Charge for the SDC is intended to fund. Moreover, if the greenhouses were already in place, there would be no SDC assessed against them, as no SDC was assessed for the existing greenhouse for another marijuana growing operation in Deschutes County - Elite Soils, LLC 247 -16 -000525 -AD/ 526 -AD / 527 -SP. So as long as the greenhouses are in place prior to the application they are not assessed an SDC. Obviously, that creates for inconsistency in the application of SDC charges in the County. Because the applicant's greenhouses are to be used entirely for growing of the crop, and are not structures that are permanent in nature, the applicant requests, at a minimum, that SDC's not be assessed on those structures. This is an issue of novelty for the County, and one of importance to the Applicant. An SDC of nearly $15,000 for the growing of crops, in the EFU zone wherein commercial activity is restricted for marijuana crops, outweighs the impact, if any, that the proposed use will have on the System for which the Development Charge is assessed. Thank you for your consideration of this matter. I look forward to discussing this further with the Board during the hearing on Monday. 888 SW Evergreen Avenue j PO Box 457 I Redmond OR 97756 Phone:541.548.2151 I Fax:541.548.1895 r� r I" rr> f U ON 33S r— I I� I W I� I Q � O J O O N N M' M y O C) co�LoQ O ¢ 1 �R N C2 qq ryry c - I r� r I" rr> f U ON 33S r— 247-17-000036-A - Appeal of 247 -16 -000600 -AD Legend Subject Property 17 -13 -33 -AO -00201 County Zoning EFUAL- Alflafa Subzone EFUTRB - Tumalo/Redmond/Bend Subzone MUA10 - Multiple Use Agricultural Appellant: Lance and Monika Piatt Taxlot Number: 17 -13 -33 -AO -00201 Address: 23105 Alfalfa Market Rd, Bend Owner: Rubio Real Estate Investments LLC V V 0 200 400 800 1,200 Feet March 2, 2017