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2017-377-Minutes for Meeting April 26,2017 Recorded 7/14/2017Recorded in Deschutes County Nancy Blankenship, County Clerk CJ2017-377 Commissioners' Journal 07/14/2017 4:19:13 PM I 11111111111111 I 1111111111 IU 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 Wednesday, April 26 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, Board Executive Secretary. No representatives of the media were in attendance. CALL TO ORDER: Chair Baney called the meeting to order at 10:00 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: • Dennis and Janet Dorgan: 2017 Budget. Mr. and Mrs. Dorgan were present to talk about the 2017 Deschutes County Budget. During the last campaign season, they spoke with the community and the automatic 3% property tax increase and increased property assessments were a general concern. Mrs. Dorgan posed questions on the reserve fund. Mr. and Mrs. Dorgan also noted the issues of the Sheriff's Office and the need for restructuring the department and for better handling of their budget. Mrs. Dorgan commented on the Commissioner's responsibility to be conscientious of the County's money. Commissioners responded each Deschutes County budget meeting is open to the public and encourages participation and attendance. • Andy Andrews: Mr. Andrews provided comment on the Alfalfa Fire District as he has struggled with this over the past five years. They are paying taxes on a fire district that Minutes of Board of Commissioners' Business Meeting April 26, 2017 Page 1 of 6 doesn't even have a building, no phone number, or designated property. The residents are paying for a district that is not there. He has lived there for 27 years and when someone says there is a fire district he wants to see it. Mr. Andrews commented on the ability to apply for a marijuana grow operation if there is no fire district. He explained there has been an increase of traffic in the area and is concerned of public safety especially on Dodds Road. Mr. Andrews explained the community is a horse and cattle community and is becoming unsafe with the increased traffic for some unknown reason. CONSENT AGENDA: 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 Arenda Items: 1. Consideration and Signature of Resolution No. 2017-017, Increasing the Tax Office Change Fund. 2. Consideration of Board Signature of Resolution No. 2017-018, Approving a Grant Application with the Oregon Department of Revenue. 3. Consideration of Board Signature Document No. 2017-152, Intergovernmental Agreement for Law Enforcement Services. 4. Approval of Minutes of the March 29, 2017 Work Session 5. Approval of Minutes of the April 3, 2017 Work Session. ACTION ITEMS 6. The Reading of Proclamation Declaring April 24 — 28 as the Week of the Young Child Holly Remer Executive Director of Healthy Beginnings was present to discuss the importance of early childhood years. Commissioner DeBone read the proclamation into the record. DEBONE: Move approval. HENDERSON: Second. Minutes of Board of Commissioners' Business Meeting April 26, 2017 Page 2 of 6 The Board expressed their appreciation all of Ms. Remer's work she has done with the organization and with Deschutes County. VOTE: DEBONE: Yes. HENDERSON: Yes. BANEY: Chair votes yes. Motion Carried 7. Consideration of Board Signature Document No. 2017-238, Acceptance of Bargain and Sale Deed from Housing Works James Lewis, Property Manager, gave background on the property in Redmond that had been a foreclosure donation made to Housing Works. Tom Kemper of Housing Works has explored developing this property and the cost has prevented thein from bringing on a development that would fit into affordable housing. HENDERSON: Move approval DEBONE: Second VOTE: HENDERSON: Yes DEBONE: Yes BANEY: Chair votes yes. Motion Carried 8. Deliberation on Marijuana Production Appeal Jacob Ripper, Associate Planner, noted for the deliberation today the Board is tasked with determination of the application complying or not complying with Deschutes County Code and gave a brief overview of the application and process to date. Key issues of applicable criteria were reviewed. With the 150 -day requirement, Mr. Ripper suggested this item to be brought for consideration of the Board at the Business Meeting of May 15, 2017. Commissioner Baney noted the time to address key issues for board decision: Electric Service —Commissioner DeBone commented on the awareness of the utility company. Commissioner Baney stated the application lacks specificity of actual usage and impact and agrees the will serve letter is for a residence. Commissioner Baney stressed the need for use specific in any future applications. The Board discussed power usage for impact on more than just a residence. For future clarification, the utilities company will need to approve capacity for that particular application. The will serve letter was only submitted by the utility company as a residence. Minutes of Board of Commissioners' Business Meeting April 26, 2017 Page 3 of 6 Odor Control — The mechanical engineer's statement was received regarding the requirements. Commissioner DeBone commented odor can be mitigated. Commissioner Henderson has issues with this item as this is the applicant's response to questions and there are no credentials listed for the mechanical engineer which is not sufficient in his opinion. Commissioner Henderson spoke on impacts to neighbors. Commissioner Baney feels this meets the threshold of what was set in the Code and the burden is on the applicant. Commissioner Baney asks for the credentials identifying the engineer's ability to submit a solid statement. Water Source — The applicant submitted documentation of use of private water source and irrigation water. Commissioner Baney felt this lacks specificity to the operation. Commissioner DeBone noted it should be up to the supplier of the water for the usage. Commissioner Henderson agreed with Commissioner Baney and feels this item requirement is not met and should be a burden on the applicant as well. New Dwelling — Usage of a new development is prohibited for marijuana grow operations. Commissioner DeBone sees thein as two separate processes but shouldn't be a stopping point. Commissioner Henderson feels this is confusing and would look for more briefing on that item. Commissioner Baney looks at this challenge without the dwelling as we do want owners to live on site and is also an OLCC requirement. She commented there has not been any activity proving construction of a dwelling on the property to show intent. Peter Gutowsky, Planning Manager, noted the non-farm dwelling criteria and challenges with a dwelling on the property an applicant would lose a farm deferral. The non-farm dwelling approval is still valid. Discussion held on new dwellings in conjunction with a marijuana crop and which of those two would come first on the property. Commissioner DeBone concluded his understanding of OLCC requirement is the licensed holder has to live on the property and the house should be built first. Commissioner Baney looks for clarity. Road Frontage & Access - At the time of application there was a lot line adjustment issue and concerns with road access. Commissioner Henderson commented on his concern of traffic safety. After discussion, the application meets the access requirements. Trip Generation — Commissioner Henderson commented on the nature of the operation and amount of activity at the property causing traffic concerns. Review made on the discussions regarding trip generation calculations. The model chosen on a marijuana grow was comparison to a warehouse and Commissioner Henderson feels it could be compared to a nursery or greenhouse. Commissioner Baney noted the lack of specificity on this item and had originally asked the applicant about activity and didn't receive any clarity from the applicant regarding potential staffing impact. Further discussion held on water source as the property is served by Avian. The challenge is there is no linkage on the water service to this particular operation. Commissioner Baney felt the threshold is met as required by the Code but the challenge is whether they can actually use COID water. Mr. Ripper noted both Avian and Central Oregon Irrigation District were notified of the application but did not submit comment. Minutes of Board of Commissioners' Business Meeting April 26, 2017 Page 4 of 6 Further discussion held on electrical service. The Central Electric Cooperative letter only says the property is located within the district and says the utility is prepared to serve. Commissioner Henderson doesn't feel it meets the requirement as the application is unclear of the property activity. Commissioner DeBone spoke on cooperative winter loads verses summer loads. Commissioner Baney noted the challenge is having to read into this application which shouldn't be the burden to the Commissioners to make assumptions but should have been the burden of the applicant. Commissioner Baney feels the electricity service is not met and Commissioner Henderson agrees. Further discussion held on trip generation and water source determination. County Counsel Doyle noted in regards to water that the approval criteria is minimal, requiring only that the applicant provide a statement that water is supplied by a private or public water provider (and by contrast, the requirement of a verification or "will serve the MJ operation letter" applies to just the electric utility). Commissioner Baney stressed the need of clarity of operations on future applications. Commissioner Henderson also feels the concern of noise should be of the key factors. All factors of this application were not met by the applicant. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 12. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District, in the Amount of $82,395.36 DEBONE: Move approval, subject to review HENDERSON: Second VOTE: DEBONE: Yes HENDERSON: Yes BANEY: Chair votes yes. Motion carried CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 13. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District, in the Amount of $1,188.53 DEBONE: Move approval, subject to review HENDERSON: Second VOTE: DEBONE: Yes Minutes of Board of Commissioners' Business Meeting April 26, 2017 Page 5 of 6 HENDERSON: Yes BANEY: Chair votes yes. Motion carried RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 14. Before the Board Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County, in the Amount of $929,880.73 DEBONE: Move approval, subject to review HENDERSON: Second County Administrator Anderson noted payments made for the new finance software system as well as for the 9-1-1 radio system. 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 12:12 p.m. DATED this / '1 Day of, County Board of Commissioners. ATTES eco d. g Secre ary Minutes of Board of Commissioners' Business Meeting 2017 for the Deschutes Tammy Baney, Chair Anthony Dexone, Vi e Chair � Philip G. enderson, Commissioner April 26, 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, WEDNESDAY, APRIL 26, 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 and Signature of Resolution #2017-017, Increasing the Tax Office Change Fund. 2. Consideration of Board Signature Resolution #2017-018, Approving a Grant Application with the Oregon Department of Revenue 3. Consideration of Board Signature Document No. 2017-152, Intergovernmental Agreement for Law Enforcement Services Board of Commissioners Business Meeting Agenda of 3 Wednesday, April 26, 2017 Page 1 4. Approval of Minutes of the March 29, 2017 Work Session 5. Approval of Minutes of the April 3, 2017 Work Session ACTION ITEMS 6. The Reading of Proclamation Declaring April 24 - 28 as the Week of the Young Child - Holly Remer, Healthy Beginnings 7. Consideration of Board Signature Document No. 2017-238, Acceptance of Bargain and Sale Deed from Housing Works - James Lewis, Property Management Specialist 8. Deliberation on Marijuana Production Appeal - Jacob Ripper, Associate Planner CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 9. Consideration of Approval of Weekly Accounts Payable Vouchers CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 10. Consideration of Approval of Weekly Accounts Payable Vouchers RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 11. Consideration of Approval of Weekly Accounts Payable Vouchers 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. Board of Commissioners Business Meeting Agenda of 3 Wednesday, April 26, 2017 Page 2 ADJOURN To watch this meeting on line, go to: www.deschutes.orq/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. CIO Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.ora/meetinqcalendar (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 of 3 Wednesday, April 26, 2017 Page 3 BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: (k) 3\5 A h. I\NAA,. Date: Name \&k PIA Address (Y. Ada) Phone #s 3 611' -1-)/ 0 43) E-mail address In Favor Neutral/Undecided Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. Opposed No BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: , Z'iS? Name (---"Liz--/ZI)e7 Address 4/ Oc5279 /e-.° Phone #s E-mail address In Favor Neutral/Undecided Date: [----/Opposed Submitting written documents as part of testimony? Yes If so, please give a copy to the Recording Secretary for the record. No orm BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: \ —i A C { Name .._./a Cat_ Yl Address )25'0 (� 1" :� ,✓�� C�r-S SCI h1 b n Af 0 ciR Phone #s `� `i 4 I - 1. -7 2) 11'6 E-mail address. '‘ rt L -4-a c In Favor Neutral/Undecided Date: 'J 117 Submitting written documents as part of testimony? "/ Yes If so, please give a copy to the Recording Secretary for the record. Subject: Name Address BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK /s\7t/5 )c c?ill Phone#s t .504-70 ca E-mail address In Favor Neutral/Undecided Opposed No Date: 4Iz//% Opposed Submitting written documents as part of testimony? Yes fiZNo If so, please give a copy to the Recording Secretary for the record. Conversations Regarding the 2017 Deschutes County Budget We knocked on thousands of doors during the 2016 election. The common, bipartisan concern with all voters is the annual increase in property taxes and the double jeopardy of increased property assessments. Every Deschutes County property owner and renter is aware of the high cost of housing and the annual 3% increase in property taxes. They all believe that the county has the ability to operate efficiently without an annual raise. Citizens on a fixed income are especially sensitive to this subject. Some of them are contemplating leaving their homes. The better their homes are maintained, the higher their assessed value is. There seems to be no consistency based on square footage. Young people beginning their careers, seeking homes in Deschutes County are looking elsewhere. Responsible taxpayers adjust their spending to meet their income, they do not depend on an increase in future income to determine their spending. They scrutinize their expenditures based on their "musts, wants and needs" for the following year. If there is an emergency, they use reserved funds rather than ask their benefactors for more money. Every Deschutes County taxpayer is aware that a 3% increase is allowed, not required. No one believes they are being listened to. One person questioned the reserved funds that Mr. Unger spoke about. 1. What is the purpose of the reserve? 2. How much money is in the reserve? What is the rate of growth of the reserve years? 3. Is there a limit to the amount held in reserve? 4. Where is the reserve held? Does it draw interest? 5. Are the reserve funds accounted for in the budget as an asset? 6. Who decides when and how that money is used? 7. Are the taxpayers given any voice in the amount held or how it is used? If the to address emergencies, what constitutes an emergency? 8. If the reserve fund is available, why not factor in a portion of that to maintain rather than go back to the taxpayers for additional funding? Given that there is a growth in assets due to the growth in population and the economy, wouldn't 2017 be a good time to address the concerns of Deschutes County taxpayers, sharpen your pencils, and make Deschutes County housing more affordable by not raising property taxes? A more equitable system of taxing and assessing property values is in order. Reserved funds should be limited. There should be accountability on how collected taxes and reserves are used. Taxpayers depend on the County Commissioners and the budget committee to make hard choices and to say, "No". Asking each budgetary recipient to cut or work within the current amount they receive is a good start. Cutting duplicate and ineffective spending is necessary. Use of taxpayer money to fund what the taxpayers voted against is not acceptable. You were elected by the taxpayers to be as conscientious with their money as if it were your own. It is the one thing taxpayers pay attention to and demand. over the last 10 reserve is meant necessary services TES ❑ _ c Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Business Meeting of April 26, 2017 DATE: FROM: Jacob Ripper, Community Development, 541-385-1759 TITLE OF AGENDA ITEM: Deliberation on Marijuana Production Appeal PUBLIC HEARING ON THIS DATE?: Yes ATTENDANCE: Jacob Ripper, Associate Planner. Community Development Department Planning Division Budding Safety Division Environmental Soils Division P.O. Box 6005 117 NVV Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cddi STAFF MEMORANDUM DATE: April 10, 2016 TO: Deschutes County Board of Commissioners FROM: Jacob Ripper, Associate Planner RE: Marijuana Production Appeal 247-17-000036-A (247 -16 -000600 -AD) BACKGROUND INFORMATION Proposal: The applicant requested approval of an Administrative Determination to establish a marijuana production facility in the Exclusive Farm Use (EFU) Zone. Staff Reviewer: Jacob Ripper, Associate Planner Administrative Decision Issued: January 11, 2017 Appeal Filed: January 17, 2017 Hearing Date: March 6, 2017 Record Closed: April 3, 2016. The record was left open for a total of 28 days, at the discretion of the Hearings Body, which was the Board of County Commissioners (Board) in this case. Review Period: The 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 150th day on which the county must take final action on this application is May 18, 2017. The Board is tasked with determining if the subject proposal will comply or not comply with the applicable sections of the Deschutes County Code. Staff has provided two tables, one with testimony summaries and the other to assist the Board in evaluating the record. ISSUES RAISED IN TESTIMONY & SUBMITTED MATERIALS Numerous topics were raised in testimony at the public hearing and in written submissions during the open record period. In compliance with Deschutes County Code (DCC) 22.24.140, the following open record period was provided immediately following the public hearing: a 14 -day period ending on March 20, 2017, for new written evidence and testimony; a Quality Services Performed with Pride 7 -day period ending on March 27, 2017, for response to materials submitted in the previous period; and a 7 -day period ending on April 3, 2017, for final a statement from the applicant. Table 1 captures the majority of the impacts, comments, and topics of concern identified in the written materials and testimony from the public hearing, as well as from the open record period. Staff grouped public comments by topic in no particular order other than alphabetical. Following Table 1, are staff responses. TABLE 1: TOPICS AND APPLICABLE CRITERIA Amendment to OCC: marijuana requirements Code enforcement Compatibility with surrounding uses Conditions of approval ✓ Cost of improvement to driveway Definition of unreasonable in regards to odor control EFU minimum irrigated acres parcel size Electric service Farm & Forest management agreement Fertilizer and pesticide use Fire risk to surrounding homes Harmonious with surrounding uses Hidden driveways on road Identification of OLCC license holder Insects, mold, mildew, mites, rodents, etc. from marijuana production Legislative history in development of DCC marijuana use regulations Moral character of applicant Morality of using potable water for farm use MUA-10 zoning standards As identified in Findings & Decision for file 247 -16 -000600 -AD. 247-17-000036-A ✓ ✓ ✓ ✓ Page 2 of 13 New dwelling in conjunction with marijuana No.initial public hearing (administrative decision) Nobody living onsite in EFU (residency requirements) Noise pollution Number of employees Number of plants Odor control Ongoing compliance Other off-site marijuana production sites Permitted use v. conditional use Petition in opposition Procedurals errors/noticing errors Property values Proximity to residential uses Regulatory taking & collateral attack Relation to comprehensive plan Road Frontage/Access Safety of neighborhood Seasonal production volumes (summer v. winter) Secured waste receptacle Septic - second system allowed v. not allowed Small parcels nearby Sustainability of marijuana production System Development Charge (SDC) ✓ "7 247-17-000036-A Page 3 of 13 Transportation/Traffic Impacts (when use will create 50 or more daily trips) Transportation/Traffte Impacts (when use: will .create Tess, than 50 daily trips) Trespassing ✓ Vehicle crashes nearby Visual impacts ✓ Warehouse as analog use for marque na production Wastewater/septic approval Water source (irrigation & private) Water source's sustainability Water supply/season Website not functional (www.dial.deschutes.org) Youth spending time outdoors nearby (not a youth activity center) STAFF RESPONSES: Amendment to DCC An opponent letter suggested several text amendments to the DCC in regards to regulating marijuana uses. No application for a text amendment has been filed as of the date of this memo. Code Enforcement Several letters of opposition questioned how the requirements and conditions of approval will be enforced. Staff notes there is a Code Enforcement Division that investigates code violation complaints and there is an annual reporting requirement (DCC 18.116.330(D)) for approved marijuana production sites. Compatibility with Surroundina Uses Several objectors questioned if the proposal was compatible with surrounding land uses. The appellant has stated Ordinance 2016-015 allows recreational marijuana grows as a permitted use. The appellant has not cited a DCC criterion requiring compatibility with surrounding uses. Staff notes that in general, compatibility criteria are reviewed for conditional uses. Marijuana production in the EFU zone is not a conditional use. Comprehensive Plan The appellant has suggested approval of the subject land use permit is not in compliance with the County's Comprehensive Plan. Staff notes that the applicable marijuana -related code sections of the DCC were developed and approved as part of a public process, ultimately 247-17-000036-A Page 4 of 13 leading to the adoption of Ordinance 2016-015. The subject land use application is not part of that rule-making process, but rather an implementation of those adopted DCC requirements. Conditions of Approval The appellant stated, "that a county must approve an application if it can do so by imposing conditions of approval" and also, "there is no logical way to find compliance is feasible, without the Board literally making up facts for the applicant". In the Findings & Decision, staff found the proposed marijuana production facility can comply with the applicable standards and criteria of the Deschutes County zoning ordinance (DCC Title 18) if conditions of approval are met. The Board will need to determine if the proposal can meet the standards and criteria of the Deschutes County zoning ordinance if conditions of approval are met. Cost of Improvement to Driveway The appellant stated they paid for improvements to the driveway which now serves the subject property, but did not cite an applicable criterion in the DCC. Definition of Unreasonable An opponent letter asked the Board to clarify what "unreasonable" means in regards to the DCC 18.116.330(B)(10)(a)2 requirement for odor control. This DCC section provides guidance on how to address the subjective "unreasonable interference with neighbors use and enjoyment" criterion and assumes that an applicant will not unreasonably interference with his/her neighbors so long as utilizing an odor control system that meets or exceeds minimum standards as well as being designed by a mechanical engineer. EFU and MUA-10 Zoning The appellant discussed the Tumalo/Redmond/Bend Exclusive Farm Use subzone's (EFU-TRB) minimum acreage requirement of 23 irrigated acres. The appellant did not cite a DCC section where this minimum irrigation size applies to marijuana production. Staff finds this is not an approval criterion for the proposed land use application. The appellant and several opponents suggested the subject property and surrounding area should be zoned MUA-10 (a rural residential exception area) instead of EFU. A rezone from MUA-10 to EFU would require an application for and approval of a comprehensive plan amendment and zone change. Electric Service A "will serve" letter from the Central Electric Cooperative (CEC) was included by the applicant in the application for the nonfarm dwelling, file 247 -15 -000103 -CU. The applicant submitted an additional letter dated March 15, 2017, from Central Electric Cooperative that indicates CEC will serve the subject property as it pertains to the marijuana production proposal. Employees Opponents and the applicant discussed the number of employees required to operate the proposed marijuana production facility. Neither the applicant nor the appellant identified a DCC section where the number of employees is an approval criterion. In regards to trip generation, see the comment in this memo titled "Transportation Impacts and System Development Charges (SDC)". 2The 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. 247-17-000036-A Page 5 of 13 Farm & Forest Management Easement An opponent letter included a copy of the recorded Farm & Forest Management Easement required as a condition of approval for the nonfarm dwelling file 247 -15 -000103 -CU. The opponent suggests this easement requires the property owner to be in compliance with all Federal laws. Staff notes the easement waives the grantor's (the applicant's) rights to object to farm and forest activities adjacent to the subject property. Fertilizers & Pesticides Opponents of the proposal expressed concern regarding the use of fertilizers, pesticides, and other agricultural chemical productions, but did not cite a DCC section that regulates the use of pesticides and fertilizers. Fire Risk The appellant raised an issue regarding fire risk to surrounding homes and commented on the Bend Fire Department's response to the application, but did not cite a criterion addressing fire risk or fire safety requirements. Harmonious with Surroundina Uses Several objectors questioned if the proposal was harmonious with surrounding land uses. The appellant has stated Ordinance 2016-015 allows recreational marijuana grows as a permitted use. The appellant has not cited a DCC criterion requiring harmony with surrounding uses. Staff notes that in general, harmonious relations to the natural environment and existing development criteria are reviewed in site plan reviews. Marijuana production in the EFU zone does not require site plan review. Hidden Driveways on Road The submitted comments do not cite an applicable DCC criterion related to the existence of nearby hidden driveways. Identification of OLCC License Holder The submitted comments do not cite an applicable DCC criterion related to requiring the applicant to identify the licensed individual. Staff notes that in general, land use permits run with a specific property and not with an individual. Insects, Mold, Mildew, Mites, Rodents, etc. from Marijuana Production The submitted comments do not cite an applicable DCC criterion related to regulations of these nuisances Legislative History in Development of DCC Mariivana Use Regulations The appellant submitted documents from and comments about the legislative history of developing the DCC regulations regarding marijuana uses. Staff notes that the applicable marijuana -related code sections of the DCC were developed and approved as part of a public process, ultimately leading to the adoption of Ordinance 2016-015. Moral Character & Good Repute The appellant has not identified a requirement in the DCC which requires the applicant to prove good repute and moral character to receive a license from the Oregon Liquor Control Commission (OLCC). Deschutes County does not review or issue marijuana production licenses on behalf of the OLCC. 247-17-000036-A Page 6 of 13 New Dwellina in Conjunction with Marijuana Production: The appellant suggests the applicant's plans to construct the previously -approved nonfarm dwelling3 violates DCC 18.116.330(B)(20)(04. Staff found in the Findings & Decision that none of the prohibited uses in DCC 18.116.330(B)(20) were proposed. The applicant states the nonfarm dwelling received a final decision prior to the subject land use application for marijuana production. The applicant also suggests the DCC's prohibition is in compliance with state regulations that prohibit a marijuana crop from being used to qualify for a new farm dwelling based on income standards. The applicant also cites ORS 215.427(3)(a), the "goal post statute", which requires that once a land use application is deemed complete, on the standards and criteria existing on the date the application was submitted govern. An opponent letter challenges the ability of a land use permit to be transferred with the sale of a property but does not cite an applicable DCC section. No Initial Public Hearina (Administrative Decision) The Planning Director has the authority to either issue a land use decision administratively or refer the matter to public hearing, per DCC 22.20. Nobody Livina Onsite in EFU (Residency Requirements) Several objector's testimonies state there is no dwelling currently onsite, which is confirmed in the Findings & Decision. Staff notes an onsite residence is a requirement in the MUA-10 zones but not in the EFU zone. There is an approved nonfarm dwelling land use permit associated with the subject property. The appellant and several objectors are challenging the validity of that land use permit and arguing it is prohibited in the DCC. Noise Pollution An objection to the proposal included the potential for excessive noise. The applicant submitted a mechanical engineer's statement indicating the proposal will meet the noise requirements of DCC 18.116.330(B)(11). Number of Plants The applicant states the maximum area for mature plant canopy on the subject property is 10,000 square feet, and the applicant intends to vary the number of mature plants based on maturity cycles and seasons. No parties have identified a DCC requirement regulating the number of marijuana plants. Odor The applicant addresses the challenge raised in testimony concerning the mechanical engineer's professional opinion not being a definitive statement on odor control. The applicant submitted a letter from the mechanical engineer stating that based on the engineer's experience, the proposed odor control systems will meet the requirements of DCC 18.116.330(B)(10). An opponent letter questions if the odor control system will be effective in the greenhouses 3Land Use Permit 247 -15 -000103 -CU 4DCC 18.116.330(B): 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited: i. A new dwelling used in conjunction with a marijuana crop ... 5 DCC 18.116.330(B)(18) 247-17-000036-A Page 7 of 13 because these structures typically do not contain insulated walls. Other Mariivana Production Sites The appellant submitted screen shots from a video apparently concerning operations at other marijuana production sites. The current application does not include other properties or operations, and the impacts from those operations do not change the applicable criteria of the subject land use application. Permitted Use & Conditional Use The applicant states that marijuana production is a permitted outright use and not a conditional use. Staff notes that the surrounding area is zoned both EFU and MUA-10. Marijuana production is a conditional use in the MUA-10 zone and a permitted use in the EFU zone. Petition in Opposition The appellant submitted a petition including numerous signatures in opposition to the proposal. The appellant did not identify a DCC constraint regarding petitions. Staff notes DCC 22.24.080(6)6 allows those individuals who sign a petition to be considered a party and have standing in the hearing. Procedural Errors & Noticing: The applicant suggested that a procedural error was made by not mailing a Notice of Application once the application was deemed complete. The DCC section 22.24.030(A)(1)7 requires that a Notice of Application shall be mailed within 10 days after receipt of an application. A mailed Notice of Application was sent on the eighth day (October 12, 2016) following the receipt of the application on October 4, 2016. The appellant suggested that the revised site plan required a modification to the application and a mailed re -noticing of the application. Staff found no procedural error was made in the Staff Memo dated February 27, 2017. Property Value The impact to property value was a topic of concern in letters of objection and testimony. No DCC section was cited for consideration of property value as an approval criterion. Proximity to Residential Uses Much of the testimony concerned the proximity of the proposed marijuana production site to residential uses in the area. The Findings & Decision identified that DCC 18.116.330(B)(6) required that the marijuana production site be set back at least 300 feet from off-site dwellings, and found the proposal met that requirement. Regulatory Taking & Collateral Attack The applicant and appellant discuss legal consequences and outcomes if the Board finds the DCC Section 18.116.330(B)(20)(a)(i) regarding prohibited uses will disallow the previously approved nonfarm dwelling. 6Any person appearing on the record at a hearing (including appeals) or presenting written evidence in conjunction with an administrative action or hearing shall have standing and shall be a party. A person whose participation consists only of signing a petition becomes a party only if his or her signature is legible and his or her address is clearly written on the petition. 'Except as otherwise provided for herein, notice of a land use application shall be mailed at least 20 days prior to the hearing for those matters set for hearing, or within 10 days after receipt of an application for those matters to be processed administratively with notice.... 247-17-000036-A Page 8 of 13 Road Frontaae & Access One of the options to satisfy the access requirements in DCC 18.116.330(B)(8) is to have frontage on and access from a county road8. In the Findings & Decision, staff found the tract owned by Rubio Real Estate Investments LLC 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 will result in a consolidation of tax lot 1601 with the subject tax lot 201. According to Planning Division records, it did not appear the property line adjustment was perfected at the time of applying for the subject land use permit, meaning a survey and a new deed, as required by the decision, were not recorded with the County Clerk. The appellant's attorney testified that tax lot 1601 was a separate legal Lot of Record, but provided no evidence of this claim. The appellant's submitted documents do identify that the property line adjustment was not perfected, which staff also identified in the Findings & Decision. The property line adjustment is valid until August 18, 2017. On March 16, 2016, during the open record period for new evidence and testimony, the applicant submitted a recorded deed that describes the subject tax lots as a consolidated property (OR 2017-09961). According to the property line adjustment decision, the final activity to perfect the adjustment is to file a survey with the County Surveyor and provide a copy of the recorded survey to the Planning Division. Safety & Crime Letters of opposition raised concerns about neighborhood safety including trespassing, illegal exports of surplus marijuana, guard dogs, theft, and burglary. The objectors did not cite any DCC requirements that would require these concerns to be reviewed as part of the subject land use application Seasonal Production Volumes (Summer v. Winter) An inquiry regarding seasonal levels of production was posed at the public hearing. No parties have identified an applicable DCC section in regards to the seasonal fluctuation of marijuana production. Secured Waste Receptacle An objector questioned if a waste receptacle is secured if the licensee physically leaves the property for a period of time. In the Findings & Decision, staff found the applicant could comply with DCC 18.116.330(B)(17) and added a condition of approval to ensure ongoing compliance. Septic - Second System Allowed v. Not Allowed A question was raised at the public hearing of whether a secondary septic system for the marijuana production use would be allowed on the subject property. No parties have identified an applicable DCC section prohibiting a secondary septic system. Small Parcels Nearby Several objections concerned the size of nearby parcels in both the EFU and MUA-10 zones. No parties have identified an applicable DCC section regarding the size of adjacent or nearby 8 DCC 18.116.330(B): 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; ... 247-17-000036-A Page 9 of 13 properties. Sustainabilitv of Mariivana Production An opponent and the appellant suggested marijuana production is not a sustainable farm use due to pesticide use and water use, but have identified an applicable DCC section regarding sustainability. Transportation Impacts and System Development Charaes (SDC): Trip generation rates and the SDC were calculated by the Senior Transportation Planner. An appeal of the assessed SDC should be directed towards the Deschutes County Road Department. The SDC charge is not an approval criterion nor was it a condition of approval in the initial land use decision. The Senior Transportation Planner has submitted a Staff Memorandum to the record regarding SDC, trip generation, vehicle crash history, driveway access, and vehicle speeding. The County Administrator via County Counsel has submitted to the record a copy of a Memorandum from the Director of the Public Works Department regarding the technical rationale behind the assessment of SDC to various marijuana -related businesses in accordance with Resolution 2013-020 (SDC Resolution). Trespassing An opponent stated trespassing may occur, or already has occurred, when potential burglars or thieves attempt to access the subject property through adjacent properties. No parties have identified an applicable DCC approval criterion regarding trespassing. Vehicle Crashes Nearby The submitted comments do not cite an applicable DCC criterion related to the vehicle crash data. Visual Impacts Aesthetic quality was a topic of opposition in comments received. Staff found the proposal met the screening and fencing requirements of DCC 18.116.33.(B)(12), Wastewater/Septic The appellant suggests the land use application should be denied because there is no site evaluation for an onsite septic system for the proposed marijuana production. The appellant has not cited a DCC requirement that would support this claim. Staff notes septic systems are reviewed by the Environmental Soils Division in coordination with the Oregon Department of Environmental Quality, and septic system review is not part of the land use review process for the subject proposal. Water The appellant suggests there is not a sufficient supply of water nor a suitable water source provided for the proposed use but does not cite an approval criterion specific to these water requirements in the DCC. In the Findings & Decision, staff found the applicant met the water requirements of DCC 18.116.330(B)(13). An opponent letter suggests the irrigation on the subject property is not lawful because water rights are subject to rules and laws of the state and the federal government. Water Source's Sustainability The appellant suggests that a potable water source provided for farm use is not sustainable, but 247-17-000036-A Page 10 of 13 does not cite an approval criterion specific to sustainability requirements in the DCC. Website Not Functional (www.dial.deschutes.ora) The County's property information website, Dial, was not entirely functional for an extended period of time due to a software error. The entire record for this application and appeal has been available online through the State's ePermitting website, as well as in hard copy at the Community Development Department. Youth in the Neiahborhood An opponent letter explains that children are on the property at 23054 Donna Lane for the daily care of 4-H animals. The letter does not cite a specific approval criterion in relation to this concern. Table 2 provides a decision matrix for the Board. (next page) 247-17-000036-A Page 11 of 13 TABLE 2: KEY ISSUES FOR BOARD DECISION 1) Electric service 2) Odor control 3) Water source 4) New dwelling 5) Road frontage & access 6 Trip generation 247-17-000036-A Has the applicant satisfied the utility verification requirements of DCC 18.116.330(B)(15)? Has the applicant satisfied the odor control requirements of DCC 18.116.330(B)(10)? Has the applicant satisfied the water requirement of DCC 18.116.330(B)(13)? Does the prohibition on new dwellings include previously approved land use permits for nonfarm dwellings? Has the applicant satisfied the access requirements? Was the trip generation rate correctly determined? The applicant submitted a "will serve" letter from the electrical utility as required by code. The applicant submitted a mechanical engineer's statement as required by code The applicant submitted documentation for a private water source and for irrigation water as required by code. The nonfarm dwelling was previously approved in a final land use decision. The ORS prohibits using the income from a marijuana crop to qualify for a new primary and/or accessory farm dwelling in conjunction with a marijuana crop. The Property Line Adjustment approval to consolidate the two subject lots is valid. A new deed description has been recorded during the open record period. Refer to Transportation Planner memo and Roads Director memo. Board determination of yes or no is required. If no, the application is denied. Board determination of yes or no is required. if no, the application is denied. Board determination of yes or no is required. If no, the application is denied. Board determination of yes or no is required. If no, the application is denied. Board determination of yes or no is required. If no, the application is denied Board determination of yes or no is required. If no, the application is denied Page 12 of 13 Attachments: From staff & previous record materials: 1. Findings & Decision (247 -16 -000600 -AD) 2. Staff Memorandum dated 02/27/2017 (prior to public hearing) From public hearing: 3. Surrounding Area Map 4. Site Plan 5. Testimony Exhibits From open record period for new materials, days 1-14: 6. Road Dept. Memo re: Marijuana Trip Generation and SDC 7. Senior Transportation Planner Memo re: Transportation Issues from Hearing 8. Applicant's Responses (includes exhibits) 9. Appellant's Responses (includes exhibits) From open record period for rebuttal, days 15-21: 10. Letter from Applicant to Appellant re: Retraction Demand 11. Applicant's Rebuttal (includes exhibit) 12. Appellant's Rebuttal From open record period for applicant's final statement, days 22-28: 13. Applicant's Final Statement NOTE: The complete written record is available on the Deschutes County Property Information website: http://dial.deschutes.ord/Real/DevelopmentDocs/162185. 247-17-000036-A Page 13 of 13 From: Ratti Adair <malibustudio@aol.com> To: Malibustudio <Malibustudio@aol.com> Date: Wed, Apr 26, 2017 8:51 am Good morning Commissioners After spending a twelve hour d traveling to Salem, Capital of our State, and located in Marion County where they D NOT allow the growing of Marijuana, my support of the rural residents east of Rend has increased one hundredfold. The project they are appealing is on 23105 Alfalfa Market Road. 50 many residents of Deschutes County live next door to this proposed marijuana operation as they are on 3 acre Tots and a few larger properties as the one Maria and her husband who grew hay and raise grass feed beef. All these people have been improving their property. Some for as long at twenty years. The addition of this marijuana peration will decimate their property values, their pekceful way of rural life and most importantly, their family's safety. This problem origin ted in 2015 with the designation by the state legislature that marijuana was a crop. BUT according to Google the NUMBER ONE definition of crop is a cultivated plant that is grown as food, especially a grain, fruit or vegetable. It seems our lawmakers are rewriting the rules as they are under the influence of the WELL-FINANCED marijuana industry Salem is now attempting to tike over our Deschutes County as they call our rides, DRACONI N referring to the TIME, MANNER, and PLACE regulations. Furthermore, Desch tes County has a minimal appeal rights. We do not want to lose these COUNTY regulati.ns. Please consider the pr.ximity of this closely knit neighborhood and deny the permit for 23105 Alfalfa Market Road marijuana project. This neighborhood°s safety is too important to ignore. Thank you for your consideration. Sincerely, Patti Adair 18000 Edmundson Road Sisters, OR. 97759 mcilibustudio@aoLcorn