2017-380-Minutes for Meeting May 17,2017 Recorded 7/14/2017Recorded in Deschutes County
Nancy Blankenship, County Clerk 07!1412017 4:19:40 PM
Commissioners' Journal
CJ2017-380
l
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
WEDNESDAY, MAY 17, 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. One representative of the
media was 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
Before the Board was Consideration of Approval of the Consent Agenda.
DEBONE: Move approval of Consent Agenda Item 1, and pulling for further review
Items 2 — 6
HENDERSON: Second
Minutes of Board of Commissioners' Business Meeting
May 17, 2017 Page 1 of 5
VOTE: DEBONE: Yes.
HENDERSON: Yes.
BANEY: Chair votes yes. Motion Carried
Consent Agenda Items:
1. Consideration of Signature of Order No 2017-010, Declaring Certain Deschutes County
Personal Property Surplus and Authorizing Sale through PublicSurplus.com
2. Approval of Minutes of April 12, 2017 Business Meeting
3. Approval of Minutes of April 12, 2017 Work Session
4. Approval of Minutes of April 17, 2017 Business Meeting
5. Approval of Minutes of April 17, 2017 Work Session
6. Approval of Minutes of April 26, 2017 Business Meeting
ACTION ITEMS
7. Consideration of Board Signature of Document NO. 2017-263, US 97;
Terrebonne/Lower Bridge Way Corridor Refinement Plan
Chris Doty, Director of Public Works; Jim Bryant, ODOT, and John Smallwood, Greater
Terrebonne Citizens Action Committee presented the document for consideration. This
planning project led by the Oregon Department of Transportation will develop a variety
of improvement and management options for the future of US 97 though Terrebonne.
ODOT has proposed a 50/50 partnership between the State and Deschutes and Jefferson
Counties. The project is estimated at $300,000. Jefferson County has offered to
contribute $20,000, ODOT's share is $150,000 and the contribution from Deschutes
County would be $130,000. The community has been involved throughout the planning
process. The project completion is estimated at one year.
DEBONE: Move approval
HENDERSON: Second
VOTE: DEBONE: Yes
HENDERSON: Yes
BANEY: Chair votes yes. Motion carried.
Minutes of Board of Commissioners' Business Meeting
May 17, 2017 Page 2 of 5
8. Consideration of Board Signature of Document No. 2017-290, a Collective
Bargaining Agreement Between Deschutes County and the Deschutes County
Sheriff Employee Association
Erik Kropp, Deputy County Administrator noted this item relates to a 3 -year labor
contract with Deschutes County Sheriff Employee Association (DC SEA). DC SEA is
the labor union representing the majority of employees at the Deschutes County Sheriff's
Office and the current contract ended June 30 2016. Kathleen Hinman, Human
Resources Director reviewed the contract particulars including retroactive items and is
recommending the Board's consideration of signature.
HENDERSON: Move approval
DEBONE: Second
VOTE: HENDERSON: Yes
DEBONE: Yes
BANEY: Chair votes yes. Motion carried.
9. Consideration of Board Signature of Document No. 2017-294, Denial of a Land Use
Application for Marijuana Production in the EFU Zone. File No 247-16-000600 AD
Jacob Ripper, Associate Planner, presented the document for consideration relative to an
appeal of an approved Administrative Determination to establish a marijuana production
facility in the Exclusive Farm Use zone. The marijuana production application was for a
property on Alfalfa Market Road. Deliberations were held on April 26th. Today marks
the 149th day for final decision.
Discussion held on the definitions of dwelling use and establishments and the confusion
with this particular application. Peter Gutowsky, Senior Planner, suggested a revision to
the decision regarding dwelling definition that could be brought to this afternoon's Work
Session. Discussion held on traffic impact and safety concerns. Commissioner Baney
feels this particular application lacks specificity in various areas and looks for clarity in
future applications.
Regarding the dwelling in conjunction with marijuana production, the amended statement
was read into the record.
HENDERSON: Move approval as amended.
DEBONE: Second
VOTE: HENDERSON: Yes
DEBONE: Yes
BANEY: Chair votes yes. Motion carried
Minutes of Board of Commissioners' Business Meeting
May 17, 2017 Page 3 of 5
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 $104,799.42
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 $111.86
DEBONE: Move approval, subject to review
HENDERSON Second
VOTE: DEBONE: Yes
HENDERSON: Yes
BANEY: Chair votes yes. Motion carried
RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
14. Before the Board was Consideration of Approval of Weekly Accounts Payable
Vouchers for Deschutes County, in the Amount of $1,119,265.56
DEBONE: Move approval, subject to review
HENDERSON: Second
County Administrator Anderson noted expenses related to the special transportation grant
funds previously approved and $40,000 to Kirby Nagelhout for safety and efficiency
improvements.
Minutes of Board of Commissioners' Business Meeting May 17, 2017 Page 4 of 5
VOTE: DEBONE: Yes
HENDERSON: Yes
BANEY: Chair votes yes. Motion carried
OTHER ITEMS:
Chair Baney offered a happy birthday greeting to Karin Cardin, videographer.
ADJOURN: Being no further items to come before the Board, the meeting was adjourned at
10:56 a.m.
DATED this /a2.--- Day of
County Board of Commissioners.
ATTEST:
ecording Secretary
2017 for the Deschutes
Tammy Baney, C
Anthony DeBone, Vice hair,
Philip G. 1iebders�n, Commissioner
Minutes of Board of Commissioners' Business Meeting May 17, 2017
Page 5 of 5
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0�� 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, MAY 17, 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 2017-010, Declaring Certain Deschutes County
Personal Property Surplus and Authorizing Sale through PublicSurplus.Com
2. Approval of Minutes of April 12, 2017 Business Meeting
3. Approval of Minutes of April 12, 2017 Work Session
4. Approval of Minutes of April 17, 2017 Business Meeting
Board of Commissioners Business Meeting Agenda
Wednesday, May 17, 2017 Page 1 of 3
5. Approval of Minutes of April 17, 2017 Work Session
6. Approval of Minutes of April 26, 2017 Business Meeting
ACTION ITEMS
7. Consideration of Board Signature of Document No. 2017-263, US 97:
Terrebonne/Lower Bridge Way Corridor Refinement Plan ODOT #31810 - Chris Doty,
Public Works Director
8. Consideration of Board Signature of Document No. 2017-290, a Collective Bargaining
Agreement Between Deschutes County and the Deschutes County Sheriff Employee
Association (DCSEA) - Erik Kropp, Deputy County Administrator
9. Consideration of Board Signature of Document No. 2017-294, Denial of a Land Use
Application for Marijuana Production in the EFU Zone. File No. 247 -16 -000600 -AD -
Jacob Ripper, Associate Planner
CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT
10. Consideration of Approval of Weekly Accounts Payable Vouchers
CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE
DISTRICT
11. Consideration of Approval of Weekly Accounts Payable Vouchers
RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
12. 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
Wednesday, May 17, 2017 Page 2 of 3
ADJOURN
To watch this meeting on line, go to: www.deschutes.ora/meetings
Please note that the video will not show up until recording begins. You can also view past
meetings on video by selecting the date shown on the website calendar.
®®® Deschutes County encourages persons with disabilities to participate in all programs and
activities. To request this information in an alternate format please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.ora/meetinacalendar
(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
Wednesday, May 17, 2017 Page 3 of 3
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 May 17, 2017
DATE: May 12, 2017
FROM: Jacob Ripper, Community Development, 541-385-1759
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Document No. 2017-294, Denial of a Land Use
Application for Marijuana Production in the EFU Zone. File No. 247 -16 -000600 -AD
PUBLIC HEARING ON THIS DATE?: No
BACKGROUND AND POLICY IMPLICATIONS:
An appeal of an approved Administrative Determination to establish a marijuana production
facility in the Exclusive Farm Use (EFU) Zone. The Board denies the applicant's proposed
marijuana production application and reverses on appeal the January 11, 2017 Administrative
Determination (File No. 247 -16 -000600 -AD), which approved the application.
ATTENDANCE: Jacob Ripper, Associate Planner.
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS: 247 -16 -000600 -AD, 247-17-000036-A
OWNER/APPLICANT: Rubio Real Estate Investments, LLC
2979 NW 17th St.
Redmond, OR 97756
APPLICANT'S AGENT: Douglas R. White
Oregon Planning Solutions
60762 River Bend Dr.
Bend, OR 97702
APPLICANT'S Lisa Klemp
ATTORNEY: Bryant Emerson, LLP
PO Box 457
Redmond, OR 97756
APPELLANT:
Monika & Lance Piatt
23095 Alfalfa Market Rd.
Bend, OR 97701
APPELLANT'S Elizabeth Dickson
ATTORNEY: Dickson Hatfield LLC
400 SW Bluff Drive, Suite 240
Bend, OR 97702
PROPOSAL: An appeal of an approved 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, 2017
247 -16 -000600 -AD, 247-17-000036-A Page 1 of 7
Document No. 2017-294
DC 2Qj7294
I. SUMMARY OF DECISION
In this decision, the Board of County Commissioners ("Board") considers the appellant's appeal
of the January 11, 2017 administrative Findings & Decision (file no. 247 -16 -000600 -AD;
"Administrative Decision"). The Board exercised its discretion to hear the appeal de novo.
The Board received two Memoranda on the appeal from Associate Planner Jacob Ripper. The
first was dated February 27, 2017 ("Pre -Hearing Memo") that identified and summarized the key
issues in the Notice of Appeal, the findings made by the staff on those issues in the
Administrative Decision or subsequent to it in preparation for Board deliberation, the applicable
evidence in the record, and the arguments of the applicant and the appellants. The second staff
memo was dated April 10, 2017 (the "Post -Hearing Memo") that identified and summarized the
key issues to be decided by the Board in addition to both the applicant and appellant's
arguments. The Board's Decision in this appeal will refer to and incorporate the Administrative
Decision and summary of issues in both Staff Memoranda.
On April 26, 2017, before deliberating on specific issues, the Board noted that this is a case of
first impression since it is the first Board decision based on new code provisions adopted in
June of 2016 allowing recreational marijuana grow operations. After interpreting code provisions
relevant to the pending issues, the Board found that the applicant failed to meet its burden to
prove that the proposal satisfied all applicable criteria.
The Board interpreted applicable code unsatisfied as follows:
• The utility verification requirement of Deschutes County Code (DCC) 18.116.330(6)(15)
was not met because the applicant failed to provide a statement from the Central Electric
Cooperative ("CEC") verifying that CEC was willing and able to provide electrical service
for the operation proposed by the applicant. The Board was split on the sufficiency of the
utility verification evidence that was provided, a March 15, 2017 letter from CEC
referencing only the property address but not the proposed operation that is the subject
of the pending application. Further, the CEC letter did not address such issues as the
proposed operation's required electrical Toad or the timing of that electrical Toad. The
Board interpreted the code to require such operational details to satisfy Deschutes
County Code 18.116.330(B)(15).
As discussed by the Board during their deliberations, the ambiguity regarding the sufficiency of
utility verification was partially caused by the applicant's initial reliance on materials submitted
for an unrelated 2015 Conditional Use Permit for a Nonfarm Dwelling on the same property.
Although approved, the aforementioned Nonfarm Dwelling has not yet been established.
Relative to the subject marijuana production facility, the applicant's initial October 4, 2016
Application and Burden of Proof Statement attempted to rely on evidence submitted in the
unrelated 2015 Nonfarm Dwelling application as a means of providing utility verification.
Deschutes County staff noted this discrepancy in the Administrative Decision and thereby
imposed a condition requiring the applicant to provide "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." Ultimately, the applicant submitted the
aforementioned March 15, 2017 letter from CEC. However, as noted, that March 15th letter only
references the property location and is not specific to the proposed marijuana production
operation.
247 -16 -000600 -AD, 247-17-000036-A Page 2 of 7
Document No. 2017-294
The Board interpreted applicable code satisfied as follows:
• The odor control requirement of DCC 18116.330(8)(10) was met because the applicant
provided a letter from an engineer stating the odor control system would meet the
requirements of the code. The Board was split on the sufficiency of the engineer's
opinion, since it did not provide his qualifications, experience, methodology, or analysis
of conclusion. The Board expressed their desire for applicants to include such detail in
an engineer's statement offered to satisfy this code provision in subsequent applications.
• The water source requirement of DCC 18.116.330(B)(13) was deemed met because the
applicant submitted sufficient documentation to satisfy the criterion. The Board was split
on the sufficiency of the supplier evidence provided, since neither Avion (potable water
supplier) nor Central Oregon Irrigation District (irrigation water supplier) addressed the
volume or timing of water that would be required by the operation, and further did not
state whether they could provide that volume or timing of supply. The Board expressed
their desire for applicants to include such detail in water source documentation offered to
satisfy this code provision in subsequent applications.
• The noise requirements of DCC 18.116.330(11) were met because the applicant
submitted sufficient documentation to satisfy the criterion. The Board was split on the
sufficiency of the expert analysis provided, since it did not provide the expert's
qualifications, experience, methodology, or analysis of conclusion. The Board
expressed their desire for subsequent applications to include such detail in a statement
offered to satisfy this code provision.
• The prohibition in DCC 18.116.330(20)(a)(i) of a new dwelling in conjunction with a
marijuana crop does not prohibit previously approved non-farm dwellings that have not
yet been constructed or vested, and further does not prohibit the approval of a nonfarm
dwelling. The prohibition does apply to new dwellings customarily provided in
conjunction with farm use.
• The access requirement in DCC 18.116.330(8)(a) was met because the applicant
executed a previously approved property line adjustment after the staff Decision was
made but before the close of the record, to provide the subject property frontage on and
direct access to a county road, as required by the code.
II. APPLICABLE STANDARDS AND CRITERIA:
The Board adopts and incorporates by reference the description of the applicable standards and
criteria set forth in Section I. of the Findings & Decision.
III. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of fact, and
conclusions of law set forth in the January 11, 2017 administrative Findings & Decision (file
247 -16 -000600 -AD) in Section II. Basic Findings, subsections A (Location), B (Lot of Record), C
(Zoning), D (Proposal), E (Site Description), F (Surrounding Land Uses), G (Land Use History),
247 -16 -000600 -AD, 247-17-000036-A Page 3 of 7
Document No. 2017-294
H (Public Agency Comments), I (Public Comments), and J (Review Period), with the following
additions.
B. Lot of Record: The subject property is Parcel 2 of Minor Partition MP -83-13, as
adjusted by the Property Line Adjustment 247 -15 -000280 -LL.
E. Site Description: A deed describing subject tax lots 17-13-28-1601 and 17-13-33A-201
together was recorded on March 15, 2017 as OR 2017-09961. The subject property is
now 22.27 acres in size, according to Assessment records.
G. Land Use History: 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. An
Administrative Determination which conditionally approved the application was issued
January 11, 2017. An appeal from appellants was timely filed during the 12 -day appeal
period on January 17, 2017.
The Board decided to hear the appellant's appeal de novo in the Board's Order 2017-
001 dated January 23, 2017. A public hearing was held on March 6, 2017. The applicant
was represented by Lisa Klemp of Bryant Emerson, LLP and the appellant was
represented by Elizabeth Dickson of Dickson Hatfield, LLC. The Board heard testimony
and allowed the parties to file post -hearing submissions. The record closed on April 3,
2017. The Board's review included the record below before staff as well as the record,
testimony, and written submissions in the proceedings on appeal before the Board.
The Board conducted deliberations at the regular Business Meeting on April 26, 2017.
IV. FINDINGS:
A. The Board adopts and incorporates by reference the code interpretations, findings of
fact, and conclusions contained in the January 11, 2017 administrative Findings &
Decision (file 247 -16 -000600 -AD) in Section III. Conclusionary Findings, except for the
findings relating to the DCC Sections identified below, which are modified as follows:
B. 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; or [... ]
The record supports that the previous configuration of the tract consisted of two abutting tax lots
(Assessor's Map 17-13-28, tax lot 1601 and Map 17-13-33A, tax lot 201) and were approved to
be consolidated by the Property Line Adjustment file number 247 -15 -000280 -LL. The record
includes a recorded deed (OR 2017-09961) which consolidates the two tax lots into one tax lot.
The Board finds the subject property's current configuration has frontage on and direct legal
access to Alfalfa Market Road, therefore, this criterion is met.
247 -16 -000600 -AD, 247-17-000036-A Page 4 of 7
Document No. 2017-294
C. DCC 18.116.330(6)(10)
Odor. As used in DCC 18.116.330(8)(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.
e. The system shall be maintained in working order and shall be in use.
The Board acknowledges that the criteria of this section are discretionary in terms of what
constitutes "unreasonable interference of neighbors' use and enjoyment of their property". The
record includes two letters from Oregon -licensed Mechanical Engineer Robert James, PE,
dated November 23 and November 29, 2016. The Board finds the applicant met these criteria.
The Board also clarifies that odor control is an ongoing requirement and that the burden of
compliance is on the applicant. The Board further clarifies that in subsequent applications, an
engineer's letter should explicitly identify that the engineer signing the letter is a mechanical
engineer.
D. DCC 18.116.330(6)(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.
The Board finds the applicant meets criterion (a) above, however, there was a discussion at the
deliberation as to if HVAC equipment would generate sustained noise overnight when heating is
on in the winter. The Board expressed a desire for additional details in subsequent applications,
especially in regard to controlling sustained mechanical noise from heating and ventilation
equipment between 10:00 p.m. and 7:00 a.m.
247 -16 -000600 -AD, 247-17-000036-A Page 5 of 7
Document No. 2017-294
E. DCC 18.116.330(6)(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.
The record contains materials demonstrating the property may be served by Avion Water
Company, Inc. Additionally, the property has access to seasonal irrigation water from the
Central Oregon Irrigation District. The Board finds the applicant meets these criteria above. The
Board also notes that in subsequent applications, greater specificity in the water supply
documentation is desired in terms of identifying the use associated with the water.
F. DCC 18.116.330(B)
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.
The Board finds the applicant failed to adequately provide evidence in the record to support the
electric utility verification requirement and denies the application based on this criterion. The
March 15, 2017 letter provided by the Central Electric Cooperative ("CEC") only identified the
subject property as within the service area of CEC and notes that CEC will serve the location in
accordance with their rates, policies, and available system capacity. In part because there is
already an approved but not yet established nonfarm dwelling use on the subject property, a
utility statement simply identifying the property location and not identifying the proposed
operation, or operational characteristics such as required electrical Toad and timing of such
electrical loads is not sufficient evidence to approve the application. Although the March 15th
letter from CEC notes the property location, the Board finds that more specificity was needed
from the applicant to establish that CEC is willing and able to serve the proposed marijuana
production operation.
G. DCC 18.116.330(6)(20)
Prohibited Uses.
a. In the EFU zone, the following uses are prohibited:
1. A new dwelling used in conjunction with a marijuana crop; [... ]
The record indicates a nonfarm dwelling was approved prior to the application for marijuana
production. In deliberations, the Board discussed with staff the differences between farm
dwellings and nonfarm dwellings. The Board finds the two uses are separate land use
processes and one does not preclude the other. The Board further finds the development of the
nonfarm dwelling is not a prohibited use under this section.
H. DCC 18.116.310, Traffic Impact Studies
In deliberations, the Board discussed with staff when Traffic Impact Studies are required and
when they are not. Staff clarified that Traffic Impact Studies are required when a use will cause
247 -16 -000600 -AD, 247-17-000036-A Page 6 of 7
Document No. 2017-294
50 or more daily trip ends and is subject to a Conditional Use Permit and/or Site Plan Review.
Only marijuana production in the MUA-10 zone, marijuana processing, and marijuana retail
require a Conditional Use Permit or Site Plan Review. The Board finds that because marijuana
production in the EFU zone is a use permitted outright, and does not require a Conditional Use
or Site Plan Review, DCC 18.116.310 is not applicable.
V. DECISION
Based on the findings of fact and conclusions of law set out above, the Board hereby denies the
applicant's proposed marijuana production application and reverses on appeal the January 11,
2017 administrative Findings & Decision (file 247 -16 -000600 -AD), which approved the
application.
Dated this day of May, 2017 Mailed this day of May, 2017
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Tammy Baney, Chair
Anthony DeBone, Vice Chair
Philip G. Henderson, Commissioner
THIS DECISION BECOMES FINAL WHEN SIGNED. PARTIES MAY APPEAL THIS
DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON
WHICH THIS DECISION IS FINAL.
247 -16 -000600 -AD, 247-17-000036-A Page 7 of 7
Document No. 2017-294