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2017-450-Minutes for Meeting June 28,2017 Recorded 7/25/2017Recorded in Deschutes County
Nancy Blankenship, County Clerk CJ2017-450
Commissioners' Journal 07/25/2017 10:00:34 AM
11111111 111111111 111 11111111 111
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, JUNE 28, 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, and several citizens. No
representatives of the media were in attendance.
CALL TO ORDER: Chair Baney called the meeting to order at 10:02 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT: None was offered.
CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent
Agenda. Chair Baney recommended pulling Items 3 and 4 to the main agenda for discussion.
HENDERSON: Move approval of the Consent Agenda minus Items 3 and 4.
DEBONE: Second.
VOTE: HENDERSON: Yes.
DEBONE: Yes.
BANEY: Chair votes yes. Motion Carried
Minutes of Board of Commissioners' Business Meeting
June 28, 2017 Page 1 of 7
Consent Agenda Items:
1. Consideration of Signature of Resolution No. 2017-024, Initiating the Vacation of a
Right -of -Way located off of OB Riley Road in T.17S, R.12E, Section 07 and T.17S,
R.12E, Section 08 in Deschutes County, Oregon, Describing the Property proposed to be
vacated, the reasons for the vacation and requesting that the County Road Office file a
report.
2. Consideration of Signature of Order No. 2017-012, Vacating a Right -of -Way located off
of OB Riley Road in T.17S, R.12E, Section 07 and T.17S, R.12E, Section 08 in
Deschutes County, Oregon
3. Consideration of Signature of Resolution No. 2017-030, Transfer of Appropriation within
the Insurance Fund.
4. Consideration of Signature of Document No. 2017-402, Humane Society of Redmond
Promissory Note Amendment
5. Board Consideration of Signature of letter of appointment to Hugh Palcic, Planning
Commission for a term through June 30, 2021
6. Approval of the Minutes of April 26, 2017 Work Session
7. Approval of the Minutes of May 10, 2017 Business Meeting
ACTION ITEMS
• Consent Agenda Item 3 Pulled for Discussion: Consideration of Signature of
Resolution No. 2017-030, Transfer of Appropriation within the Insurance Fund.
Deputy County Administrator Erik Kropp explained each year projections are made for
expenditures and settlements related to worker's compensation and general liability
claims. The adoption of this resolution would allow a transfer from the contingency fund
to the materials and services fund.
DEBONE: Move approval
HENDERSON: Second
VOTE: DEBONE: Yes.
HENDERSON: Yes.
BANEY: Chair votes yes. Motion Carried
Minutes of Board of Commissioners' Business Meeting
June 28, 2017 Page 2 of 7
• Consent Agenda Item 4 Pulled for Discussion: Consideration of Signature of
Document No. 2017-402, Humane Society of Redmond Promissory Note
Amendment. Erik Kropp, Deputy County Administrator explained the current loan for
the Humane Society of Redmond expires on June 30, 2017 and this amendment would
extend the loan for an additional six months.
HENDERSON: Move approval
DEBONE: Second
VOTE: HENDERSON: Yes.
DEBONE: Yes.
BANEY: Chair votes yes. Motion Carried
8. Consideration of Board Signature of Document No. 2017-415, Lease Addendum #6 —
State Building Codes
James Lewis, Property Management Specialist noted the addendum is reflective of costs
for new equipment and the addendum reflects those charges.
DEBONE: Move approval
HENDERSON: Second
VOTE: DEBONE: Yes.
HENDERSON: Yes.
BANEY: Chair votes yes. Motion Carried
9. PUBLIC HEARING: Text Amendment Including Map Modification for
Urbanizable Area Zone and Zone Change
Chair Baney read the hearing procedures into the record. Matt Martin, Associate Planner
reviewed the hearing process and inquired of any conflicts by Commissioners. No
conflicts were identified. Chair Baney opened the public hearing.
Present on behalf of the City of Bend were Pauline Hardie, Planner; Colin Stephens,
Planning Manager; and Mary Winters, City Attorney. Text amendments were reviewed
as well as the necessary planning for infrastructure. Meetings have been held with both
Minutes of Board of Commissioners' Business Meeting
June 28, 2017 Page 3 of 7
the City of Bend and Deschutes County since April, 2017. The City requests the County
approve an Emergency Order to coincide with the effective date as adopted by the City of
Bend. The City Council's strategic plan was presented. The urban growth boundary was
expanded in 2016 based on the need and planning horizon along with property owner
motivation.
Chair Baney closed the public hearing. Mr. Martin presented a draft Ordinance reflecting
adoption by emergency to match the effective date of July 21St of the City of Bend.
DEBONE: Move first and second reading, of Ordinance No. 2017-009 by title only
with proposed effective date of July 21, 2017 and declaring emergency.
HENDERSON: Second
VOTE: DEBONE: Yes
HENDERSON: Yes
BANEY: Chair votes yes. Motion carried
Chair Baney conducted the first and second readings by title only.
DEBONE: Move adoption of Ordinance 2017-009
HENDERSON: Second
VOTE: DEBONE: Yes
HENDERSON: Yes
BANEY: Chair votes yes. Motion carried
10. PUBLIC HEARING: City of Bend/Deschutes County Joint Management
Agreement Update and Consideration of Signature of Document No. 2017-423,
Revised Joint Management Agreement Regarding the Area Within the Bend Urban
Growth Boundary
Chair Baney opened the public hearing. Matt Martin, Associate Planner explained the
update to the Joint Management Agreement which identifies the rights and
responsibilities of each jurisdiction.
Commissioner Henderson inquired on the process of system development charges for the
property owners. The permitting process would be relative to new developments specific
to sewer, water, or transportation. Chair Baney inquired of the maintenance cost of the
roads. Mr. Martin noted the road standards and maintenance until annexation.
Minutes of Board of Commissioners' Business Meeting June 28, 2017 Page 4 of 7
Chair Baney closed the public hearing.
HENDERSON: Move approval Document No. 2017-423
DEBONE: Second
VOTE: HENDERSON: Yes
DEBONE: Yes
BANEY: Chair votes yes. Motion carried
11. CONTINUATION OF PUBLIC HEARING: Regarding Lot of Record Fees
Nick Lelack, Director of Community Development Department presented the proposal of
Lot of Record Fees discussed at the Work Session of June 26t1i as a fee of $250 for
properties with prior building, septic and land use permits and a fee of $925 for federal
conveyances and vacant properties. The new fee schedule goes into effect July 1, 2017.
Chair Baney opened the hearing for public testimony.
o Judy McCombs, has lived in Bend for 25 years and was unaware they had to
apply for a legal lot of record after owning the home for 25 years. She noted she
went to the department to pay the $925.00 fee and pulled 35 years of documents
as proof of all history of the property. Ms. McCombs is inquiring on a refund as
she submitted her application in June.
o Tyler Neese, Central Oregon Association of Realtors, he is here on behalf of the
clients of COAR. Mr. Neese spoke on their support of fees and the burden of
clients. Mr. Neese requested clarification on the language of fee conditions.
COAR would be willing to provide input on this process.
Chair Baney closed the public hearing.
DEBONE: Move approval of lot of record fees CDPN 47, 48, and 49
HENDERSON: Second.
Discussion: Commissioner Henderson commented he is appreciative of the citizen input.
VOTE: DEBONE: Yes
HENDERSON: Yes
BANEY: Chair votes yes. Motion carried
Chair Baney inquired on the process of discussion of refunds for the lot of record.
County Administrator Anderson commented it would be beneficial for the Board to state
Minutes of Board of Commissioners' Business Meeting
June 28, 2017 Page 5 of 7
publically their intent of providing refunds and direction to the Community Development
Department staff. Chair Baney commented on the terms of fairness of refunds and a way
to structure the refunds to those that meet the new criteria within the past year.
Commissioner DeBone recommended a discussion at this afternoon's Work Session.
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 $127,857.13
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. No vouchers were offered
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 $1,067,971.75
DEBONE: Move approval, subject to review
HENDERSON: Second
County Administrator Anderson noted expenses for road building materials and medications
for the pharmacy and architectural work on the historic old stone building.
VOTE: DEBONE: Yes
HENDERSON: Yes
BANEY: Chair votes yes. Motion carried
Minutes of Board of Commissioners' Business Meeting
June 28, 2017 Page 6 of 7
OTHER ITEMS: None were offered.
ADJOURN: Being no further items to come before the Board, the meeting was adjourned at
11:38 a.m.
DATED this /
Dayof J
County Board of Commissioners.
ATT .T
AP
Recording Secretary
Tammy aney, C i3
2017 for the Deschutes
Anthony DeBone, Vi Chair
Philip G. °,-nderson, Commissioner
Minutes of Board of Commissioners' Business Meeting
June 28, 2017 Page 7 of 7
SEs
a _ 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, JUNE 28, 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 Resolution No. 2017-024, Initiating the Vacation of a
Right -Of -Way Located Off of O.B. Riley Road in T.17S., R.12E., Section 07 and T.17S.,
R.12E., Section 08 in Deschutes County, Oregon, Describing the Property Proposed to
be Vacated, the Reasons for the Vacation and Requesting that the County Road Official
File a Report
Board of Commissioners Business Meeting Agenda
of 3
Wednesday, June 28, 2017 Page 1
2. Consideration of Signature of Order No. 2017-012, Vacating a Right -Of -Way Located
Off of O.B. Riley Road in T.17S., R.12E., Section 07 and T.17S., R.12E., Section 08 in
Deschutes County, Oregon
3. Consideration of Signature of Resolution #2017-030, Transfer of Appropriation Within
the Insurance Fund.
4. Humane Society of Redmond Promissory Note Amendment, Document No. 2017-402
5. Board Consideration of Signature of letter of appointment to Hugh Palcic, Planning
Commission, for a term through June 30, 2021
6. Approval of Minutes of the April 26, 2017 Work Session
7. Approval of Minutes of the May 10, 2017 Business Meeting
ACTION ITEMS
8. Consideration of Board Signature of Document No. 2071-415, Lease Addendum #6 -
State Building Codes - James Lewis, Property Management Specialist
9. 1450: PUBLIC HEARING: (1) Text Amendment Including Map Modification for
Urbanizable Area Zone and (2) Zone Change - Matt Martin, Associate Planner
10.1451: PUBLIC HEARING: City of Bend/Deschutes County JMA Update - Matt Martin,
Associate Planner
11.CONTINUATION OF PUBLIC HEARING: Regarding Lot of Record Fees - Nick Lelack,
Community Development Department Director
CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT
12. Consideration of Approval of Weekly Accounts Payable Vouchers
CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE
DISTRICT
13. Consideration of Approval of Weekly Accounts Payable Vouchers
RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
14. Consideration of Approval of Weekly Accounts Payable Vouchers
OTHER ITEMS
Board of Commissioners Business Meeting Agenda
of 3
Wednesday, June 28, 2017 Page 2
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.or/rneetins
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.
ElDeschutes 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.or•/meetin•calendar
(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, June 28, 2017 Page 3
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Subject:
Name
Address
BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
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Submitting written documents as part of testimony? Yes
If so, please give a copy to the Recording Secretary for the record.
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BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
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In Favor Neutral/Undecided
Yr Opposed
Submitting written documents as part of testimony? Yes VNo
If so, please give a copy to the Recording Secretary for the record.
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Plan Amendment (including goal exception/UGB expansion) 9,122.50 (ACS
Plan Amendment (without goal exception) 6,098.75
Renewal 36.00
j LUCS sign off 92.25
1 Land Use 1,537.50
Permit sign -off for other agency (Role change, Land Use
Compatibility Statement, DMV, Water Resources, etc.)
Partition 3,259.50 + $35.75 per lot
Extended Outdoor Mass Gathering Renewal 528.00
Extended Outdoor Mass Gathering 2,926.50
Outdoor Mass Gathering Renewal 364.00
I Outdoor Mass Gathering - 2,926.50
Non -Conforming Use Alteration 2,029.54
No Shooting Zone 2,926.50
Noise Ordinance Variance/Permit 1,537.50
pp
Modification of Submitted Application 984.00
Modification of Conditions 1,537.50
Minor code changes 5,919.50
Master Plan (Statutorily defined) 20,500.00
Master Plan (including final master plan for destination resort) 5,873.25
Major Code Change (applicant will be billed for M56 Notice) 11,787.50 MACS (Notice)
I Lot of Record Verification - Administrative Determination 925.00 !,
Lot of Record Verification (for each additional lot) 250.00
Lot of Record Verification 250.00
Type 3 1,004.50
Type 2 1,004.50
Type 1 or Renewal of Type 1, 2 or 3 512.50
Limited Use Permit (Agri -tourism & other events in EFU zone)
,Limited Land Use Decision 4,494.75 '+ $25.50 per lot
Landscape Management Review (and less than 50 feet from rimrock) 1,840.00
Landscape Management Review (river setback exception) 2,583.00
Landscape Management Review (property includes river frontage, applieds
to non -conforming river setbacks) j 1,998.75
CDD - Planning Division (continued)
DESCRIPTION FY 2018 Fee ($) UNIT
ENACTMENT AUTHORITY
BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY
In the Matter of the Application of
Kelly and Kathleen O'Neill for a Lot
of Record Determination on Tax Lot
22-10-14BD 1600
PRELIMINARY FINDINGS
LR -93-47
FINDINGS AND
DECISION
1, iPPLICANTS: Applicants are Kelly and Kathleen O'Neill
52476 Lost Ponderosa, La Pine, Oregon 97739.
2. THE PROPERTY: The subject property is a 1.25 acre
tract located on Hinkle Road in La Pine, and is identified on the
Deschutes County Assessor's Map 22-10-14BD as tax lot 1600.
3. ZONING: The property is zoned Rural Service
Residential (RSR -M) and is designated as Rural Service Center on
the Deschutes County Comprehensive Plan.
4. REQUEST AND APPLICATION: The applicants request that a
Lot of Record determination be made for the subject property.
The Board finds that the applicants submitted an Assessor's
tax card and copies of deeds for the subject property in support
of the application, as well as copies of a BLM township "plat"
and a supplemental BLM township "plat." The prior owners of the
property, the Baldwin -Herndon Trust interests provided assistance
to the applicant by hiring an attorney, both at the Hearing
Officer level and at the Board level and by offering historical
documents and testimony to assist in obtaining a determination
that the subject property is a lot of record, as defined by
County ordinances.
5. ISSUES ON APPEAL. This appeal involves whether tax
lot 22-10-14BD-1600, owned by Mr. and Mrs. O'Neil, constitutes a
parcel that the County is required to recognize as a legal lot of
record under the County's zoning ordinance. The specific issue
is whether the County is required to recognize internal divisions
of land units described only .in a 1953 BLM survey that pre -dates
County land division regulations and then with respect to the
subject parcel first conveyed in a 1993 conveyance from the State
of Oregon after the County's land division regulations were
adopted.
The Hearing Officer supported staff's recommendations and
concluded that under County ordinances the subject 1.25 acre lot
is deemed to be still joined at its southeast corner to tax lot
22-10--14DB-1300 and that the property does not constitute a lot
of record under the County's ordinances. Applicants have
appealed from that determination.
Page 1 - Findings & Decision (LR-92-47/O'Neill)
The issues are somewhat complicated because of assertions
involving the interplay between County ordinances, state land use
and conveyancing laws and federal public land management laws and
the long -involved history of the Baldwin heirs' attempts to
obtain lands due them from the State of Oregon. In addition, the
issues go beyond just this particular lot of record
determination, since the subject tract of land is one of 48
similar tracts described by a BLM "subdivision plat" in the La
Pine area initially conveyed by the BLM to the State of Oregon in
a single conveyance document.
The dispute in this case involve primarily legal issues and
not on issues of fact.
6. PROCESS: Applicants submitted an application for a lot
of record determination on September 17, 1993. A staff report
was issued on December 23, 1993 determining that the subject lot
did not satisfy the lot of record definition and recommending
denial. The matter was set for a hearing before the Hearing
Officer on February 24, 1994, at which time testimony was taken
from Assistant County Counsel Bruce White, Associate Planner
Stacy Warren for the County, and Attorney Win Francis, B.R.
Herndon and Don Coulter, appearing for the Baldwin -Herndon Trust
on behalf of the applicants.' The record closed on March 29,
1994.
Following the Hearing, the Hearing Officer denied the
application by decision dated May 5, 1994. In her decision, the
Hearing Officer found that the subject lot did not constitute a
separate lot of record under the County's ordinance and was still
joined at its southeast corner to tax lot 22 -10 -14 -BD -1300.
An appeal to this Board followed. A hearing was held before
the Board on June 29, 1994, with the record left open until July
11, 1994 for the applicant to supplement the record. Staff had
until July 18, 1994 to respond. After considering the record the
Board made a preliminary decision to deny the application an July
20, 1994.
APPLICABLE CRITERIA
The Board finds that the applicable criterion from the
County's zoning ordinance is the "lot of record" definition set
forth in DCC Section 18.04.030. The Board's finding that the lot
of record definition is applicable to this property results from
For the purposes of this decision, the Board's use of the
term "applicant" in this decision will refer to representatives of
the Baldwin -Herndon Trust as well as the actual applicants in this
case.
Page 2 - Findings & Decision (LR-92-47/O'Neill)
interpreting the language of the lot of record definition and
language contained in DCC 18.08.010.
The Board finds that under DCC 18.08.010(1), a "lot" within
the County can be used only as Title 18 permits. By the
operation of the zoning ordinance, "lots" are the essential land
units upon which the ordinance is founded. For example, each
zone sets forth minimum "lot" sizes and coverage requirements,
including the RSR -M zone. See, e.g., DCC 18.68.050, 18.68.060.
The express language contained in the last sentence of the "lot
of record" definition reads the qualifications contained therein
into the definition of the terms "lot" or "parcel" as used in the
zoning ordinance. DCC 18.04.030.
Under this interpretation, the County will not recognize a
unit of land for planning purposes under Title 18 of the
Deschutes County Code unless it falls within the Title 18
definition of a "lot of record," except in limited instances
described below. The lot of record definition is the exclusive
definition of lots that will legally be recognized, except in
certain instances where laws outside the lot of record definition
requires recognition of a particular unit of land.
The Board notes, as will be detailed further on in this
decision, that other provisions of law, including state
subdivision law and state conveyancing law, federal public land
law and issues involving federal supremacy have been brought to
bear on this case to determine whether the result dictated by the
County's lot of record definition should be followed.
III. FINDINGS OF FACT
1. THE PROPERTY: The subject property is located on
Hinkle Road in La Pine, and is identified on the Deschutes County
Assessor's Map 22-10-14BD as tax lot 1600.
The subject property was first described in a federal survey
entitled "Supplemental Plat of Section 14" dated April 21, 1953
as Lot 75 and a federal document entitled "Supplemental Plat"
dated August 21, 1956. Both federal documents indicate that Lot
75 is 1.25 acres. These plats do not subtract area for the
right-of-way for Hinkle Road.
The subject tract is one of 70 tracts totalling almost
638.72 acres transferred by the BLM to the State of Oregon
(Division of State Lands) by a patent dated April 6, 1993 (Serial
No. 3164). The patent conveyed the tracts in bulk with other
federal lands, including "lots" 1 (portion) 2, 3, 4, 5 (portion),
6, 7, 14, 44, 45, 52, 62, 65, 75, 82, 83, 84, 88, 89, 94, 95,
100, 102, 103, 108, 113, 114, 117, 118, 119, 124, 125, 126, 127,
129, 130, 131, 133, 136, 137, 138, 139, 141, 142, 143, 146, 147,
Page 3 - Findings & Decision (LR-92-47/O'Neill)
149, 152, 153, 154, 156, 157, 156, and 159 from a small tract
survey described further below. The subject tract is "lot"
number 75 from the small tract survey.
2. HISTORY OF TRL SUBJECT TRACT:
A. Federal Surveys/Small Tract .pct
The federal government originally held title to much of the
land in the La Pine area. Between 1944 and 1956, the BLM
initiated 4 successive surveys covering a 240 -acre portion of
Section 14, Township 225, R. 10 E. to describe 156 small
tracts.2 Under federal public land law, these surveys were
known as "plats." The subject tract is shown as Lot 75 on the
plat that was certified by the BLM on April 21, 1953. The Board
incorporates by reference Hearing's Officer's Opinion Finding No.
6, regarding the details of the various plats.
These tracts were surveyed under a federal public land law
known as the Small Tract Act for eventual disposition, either by
sale or lease, to individual owners. See 43 USC Sec. 682a. The
purpose of the Small Tract Act was to make federal lands
available to individuals for residence, recreation, business, or
community site purposes. Id. The Act prohibited any person or
organization from purchasing or leasing more than one tract,
except upon a showing of good faith and reasons satisfactory to
the Secretary of the Interior. Id. The Board finds from
information supplied by the Applicant that these particular
tracts were surveyed for potential disposition to servicemen
returning from World War II. The Small Tract Act was repealed in
1976.
The Small Tract Act "plats" show a portion of Section 14 of
Township 22 S, Range 10 E. Willamette Meridian, to be gridded
into a block of abutting rectangular tracts, without any
provision for access or utility easements, other than reference
to two then existing County roads. The Small Tract Act
authorized the federal government, when granting patents to Small
Tract lands to reserve easements necessary for access and
utilities. 43 USC Sec. 682a.
2 The tracts described by the surveys are numbered 1
through 156. The most common lot size is 1.25 acres and the second
most common is 2.5 acres in size. Lots range in size from 1.25 to
4.74 acres, with the exception of Lot 1 which is 9.92 acres. These
tracts cover the core area of the La Pine rural service center.
Page 4 - Findings & Decision (LR-92-47/O'Neill)
The Board finds from Deschutes County Surveyor Jeff Kern
that these BLM surveys were never officially "filed" as part of
the County's survey filing system but that they were routinely
provided to the County by the BLM as a reference. The surveys
were filed in the Portland office of the BLM, as prescribed by
BLM regulations.
B. Use of this Tract in the 1950s.
The Board finds from information supplied by the Applicants
that in the 19508, the tract was leased by the BLM to a private
party for a period of less than two years, from January 24, 1955
through December 31, 1957. During that entire period, the
property remained in federal ownership.
None of the small tracts that have been conveyed to the
Baldwins have been leased since 1959.
C. Identification of lands by the Reirs of George
Baldwin
This property was identified by the heirs of George Baldwin
in the early 19608 for acquisition through the State of Oregon to
settle a longstanding claim held by the Baldwin fancily against
the State of Oregon. Explanation of the Baldwin family's
involvement with this tract and how it came to be disposed of by
the BLM requires a discussion relating to the history of public
lands in Oregon and starts with lands not involving the subject
tract.
In 1907, the State of Oregon sold an entire township section
of timber lands in Clackamas County to Mr. George Baldwin. The
lands purportedly sold by the state were state school lands, to
which the State of Oregon had rights by the Admission Act of
1.859. (The 1859 Admission Act gave rights to the State of Oregon
upon statehood to lands falling within Sections 16 and 36 of each
township.)
Unfortunately for Mr. Baldwin, the State did not have title
to the land it sold to him. At the time Mr. Baldwin bought the
Clackamas County land, a survey of the land had not been
completed by the federal government. The land had earlier been
included within the boundaries of the Cascades Forest Reserve,
the predecessor of the modern day National Forest. Designation
of federal public lands as being within Forest Reserve boundaries
had the effect of reserving lands within such boundaries from
disposition by the federal. government. In 1916, the U.S. Supreme
Court ruled in United States v. Morrison, 240 US 192, 60 L Ed
599, 36 5 Ct 326 (1916), that title to Oregon's school lands
could not pass to the state until a survey had been completed.
Thus, Mr. Baldwin had purchased land that the state did not own
Page 5 - Findings & Decision (LR-92-47/O'Neill)
at the time and which the federal government, by virtue of the
establishment of the Forest Reserves, could not dispose of.
it was a common occurrence for designated school lands to
become unavailable. to the states - either because of decisions by
the federal government to reserve or retain such lands for
purposes such as forest reserves or hydropower sites or because
of disposition to third parties under homesteading or mining
laws. To make up for such losses by states of their school
lands, Congress passed legislation in 1891 known as the Indemnity
Act by which the states could select other lands in lieu of the
school lands that had become unavailable. See 43 USC Sec. 851.
Baldwin, and eventually his heirs, had a claim against the
State of Oregon for the value of the lands purchased by Mr.
Baldwin to which the State did not have title. Under legislation
passed by the State of Oregon, claims such as that of Mr. Baldwin
and his heirs were to be settled in-kind, by making a claim
against lands that the State of Oregon was to receive from the
federal government in lieu of the school lands lost by
disposition or retention by the federal government.'
J That legislation was enacted in 1923 as L. 1923, c. 285.
That statute was codified in the Oregon Revised Statutes as ORS
273.620 and as set forth in 1967 read as follows:
"273.620 Adjustment of erroneous pre -1916 sales of
school lands.
(1)
Upon the execution and delivery to the State Land
Board by any grantee to whom payment has not
heretofore been made, and to whom the State Land
Board prior to February 21, 1916, erroneously
conveyed various parcels of land in sections 16 and
36 to which the title of the state was found by the
State Land Board to be defective, or the record
successor in interest of such grantee, of an
instrument is writing sufficient to annul the
convenyance of the state to such grantee or to
reinvest the state with its original claim, right,
title or interest in the land described in such
conveyance, and upon payment to the State Treasurer
of $2.50 per acre for each acre of land so conveyed
and the title to whcih was so found to be
defective, and upon a good and sufficient release
by such grantee or his record successor in interest
of all cliams for any refund of the purchase price
paid to the state for such land, the State Land
Board shall cause to be selected under the
provisions of sections 851 and 852, Title 43 of the
Page 6 a Findings & Decision (LR-92--47/O'Neill)
In the early 1960s the Baldwin heirs became interested in
asserting their claim. Whether or not they had made earlier
attempts to do so is unknown to the Board and is irrelevant to
this decision. At that time, the State of Oregon believed that
it was entitled to obtain lands from the federal government as
indemnity lands. Pursuant to former ORS 273.620, the Baldwin
heirs applied to the State Land Board on June 19, 1964 to have
their claim settled by lands the state was to receive from the
federal government as indemnity lands.
In 1966, the Prineville District of the Bureau of Land
Management (BLM) was directed to help the Baldwin heirs identify
lands that the State could apply for, for ultimate transfer to
the Baldwin heirs. Among the lands identified by the BLM for
possible selection were lands identified in the Small Tract Act
surveys, including the subject tract. According to the
applicants, the BLM had stopped selling these Small Tract Act
lands in 1962, because of the burdensome nature of the
requirements it had to go through to transfer the lands under the
Small Tract Act.
United States Code, as mended by the Act of
Congress approved February 28, 1891, for the
benefit of such grantee or his record successor,
such lands subject to such right of selection as
designated by such grantee or his record successor,
not exceeding the quantity so erroneously conveyed
by the State to such grantee.
(2) Upon approval of such selection and upon receipt by
the state of evidence that the title to such
selected lands has passed to the state, such
grantee or his successor shall be entitled to a
conveyance thereof from the state.
Any applicant who has complied with subsection (1)
of this section and has thereby become entitled to
have such right of selection exercised on his
behalf is entitled to a certificate to that effect.
from the State Land Board.
(3)
(4) All moneys recieved under this section shall bec0
a part of the Common School Fund."
ORS 273.620 was repealed in 1967, but a savings clause was
included for pending transactions. The Baldwin family heirs held
one such pending claim for compensation.
Page 7 - Findings & Decision (LR-92-47/O'Neill)
D. Application of the State of Oregon for Indemnity
Lands/Classification for Disposition
On April 4, 1968, the State made an application for
indemnity lands on behalf of the Baldwin heirs. Application No.
OR 3164, List 1787, included 70 tracts, totalling 638.72 acre of
land (equivalent to one section of land), all selected for
ultimate transfer to the Baldwin heirs. The application and list
included 48 tracts (totalling about 82.5 acres) described in the
Small Tract Act surveys then remaining in federal ownership. The
remainder of the acreage was made up of other tracts ranging in
size from 40 to 160 acres described in other public land surveys.
An Initial Classification Decision, dated September 9, 1968,
provided by the Applicants, indicates that as part of the process
of responding to Application OR 3164, the ELM classified all land
on the list under the Classification and Multiple Use Act as
available for disposition as in -lieu selection lands.' The
notice also stated that the initial decision was "subject to the
exercise of supervisory authority by the Secretary of the
Interior for the purpose of administrative review." A 30 -day
notice period was provided, which resulted in one objection to
the proposed classification decision. It is unclear from the
documents presented by the Applicants whether a final
classification decision was made in 1968 and the Board is unable
to find from the record that the 1968 classification became
final.5
E. BLM Denial of Applications/Federal litigation
The transfer of lands from the BLM to the State of Oregon
was not completed in 1968. In May 1979, while processing
Application OR 3164, the State BLM Director determined that the
State had overdrawn its indemnity lands account with the federal
government and suspended all pending and future applications for
indemnity lands until an audit of such lands could be conducted.
This suspension included Application No, OR 3164. Following two
audits, the BLM determined that the state was overdrawn on its
selection of indemnity land, and on April 4, 1973, the State's
application for indemnity lands, including Application No. OR
3164, was rejected by the BLM.
4 The document makes no reference to the Small Tract Act.
5 It should be noted that the 1968 classification process was
undertaken under the Classification and Multiple Use Act, which was
repealed by the Federal Land Policy Management Act of 1976. It is
not known what, if any, effect that repeal might have had on the
1968 classification process.
Page 8 - Findings & Decision (LR-92-47/O'Neill)
Appeals and litigation followed as to whether the State was
entitle to receive additional indemnity lands. The State's
position was finally upheld by a federal appeals court in 1989 in
Oregon v. Bureau of Land Management, 876 F.2d 1419 (9th Cir.
1989). The court found that the state still had acreage to its
credit in its in -lieu account with the BLM. This allowed
Application OR #3164, made by the State on behalf of the Baldwin
heirs, to be reinstated and move forward.
F. Intervening Federal and County Regulations
In the meantime, the legal landscape had changed. New laws
had been enacted, such as the Federal Land Policy Management Act
of 1976 (FLPMA) (which repealed the Small Tract Act and replaced
the Classification and Multiple Use Act). The National
Environmental Policy Act (NEPA), which requires environmental
impact statements, had also been enacted.
The BLM applied such new legislation and its new land use
plan in determining in 1992 whether to transfer to the State of
Oregon the lands applied for under Application OR 3164, including
the subject tract.
Locally, the County had enacted
land division laws. The predecessor
ordinance became effective in 1970.
ordinance became effective in 1977.
G. BLM Land Management P
Management
land use laws, including
of the current subdivision
The County's partition
an Classification/Interim
The Brothers - La Pine Resource Management Plan, adopted
pursuant to FLPMA, classified the land as suitable for
disposition to the state-.
In the interim, the BLM continued to make management
decisions on the tracts listed on Application OR 3164. Timber
was sold on some tracts and easements were granted on some of the
tracts surveyed under the Small Tract Act in favor of such
entities as the La Pine Special Sewer District and Crestview
Cable TV Company. The Baldwin heirs claim that the BLM had no
authority to make such management decisions and are currently
pursuing a claim against the federal government on that issue.
H. Resolution of Federal Litigation Classification of
Lands for Disposition
Page 9 - Findings & Decision (LR-92-47/O'Neill
Resolution of the federal lawsuit in 1992 allowed the state
to proceed with application OR 3164 for selection of indemnity
lands. The BLM reinstated Application OR 3164.6
The BLM proceeded with the public process dictated by NEPA
to determine whether the lands applied for on Application OR 3164
should be granted to the State under the Indemnity Act. Pursuant
to NEPA, the BLM prepared an Environmental Assessment in making
its determination to transfer the property to the State. On
December 12, 1992, the BLM approved an Environmental Assessment
finding that no significant environmental impacts would result
from transferring the property to the State for eventual
disposition to the Baldwin heirs.
On January 21, 1993, the BLM issued a decision approving the
transfer of the lands listed on Application OR 3164 to the State
of Oregon. This decision stated that the lands had previously
been classified under Section 7 of the Taylor Grazing Act (43 USC
315f) as suitable for transfer to the State and that the State
had met all requirements for selection. The decision allowed the
application and stated that a clearlist would be prepared,
subject to "all valid existing rights."
The application of post -1968 law to the transfer may suggest
that the BLM did not necessarily regard that transfer of these
particular lands to the Baldwin heirs was required by law.
I. Deed of Lands from BLM to the State of Oregon/Deed
of Land to Private Parties.
By a clear list dated April 6, 1993, the BLM transferred to
the State of Oregon the tracts applied for under Application OR
3164, including the subject tract. The subject tract was
described in that clear list only as Lot 75.7 The clear list
6 Applicants have disputed the County's use of the term
"reinstated" to describe what happened to Application 3164 after
resolution of the litigation. The Board finds that use of that
term is proper, based upon BLM documents and the use of that term
by applicants' own Washington, D.C., attorney.
' The clear list identifies a total of 638.72 acres of lands
for transfer to the State of Oregon, all as part of the same list.
In addition to the tracts identified by the BLM surveys made under
the Small Tract Act, the clear list includes land tracts described
by sectional breakdown pursuant to BLM surveys unrelated to the
Small Tract Act. Federal regulations governing grants to states as
in lieu selections require that selected lands be described in
accordance with the official plats of survey. 43 CFR Sec.
2621.1(d)(1).
Page 10 - Findings & Decision (LR-92-47/O'Neill)
was recorded in the Deschutes County Deed Records on June 1
1993.
Those same lands were subsequently deeded in bulk by the
State of Oregon on July 16, 1993 to representatives of the
Baldwin heirs. The tracts were then deeded in bulk to the
Baldwin -Herndon Trust on July 22, 1993. These conveyances convey
all 70 properties applied for under Application No. OR 3164, List
No. 1787. These conveyances described the tracts in the same
manner as they were described in the clear list.
On September 3, 1993, the subject lot was conveyed by the
Baldwin -Herndon Trust separately to Kelly and Kathleen O'Neil.
See Exhibit 13. The property is described in the O'Neill deed as
follows:
"Government Lot 75 located in the Southeast
Quarter of the Northwest Quarter (SE 1/4 NW 1/4)
of Section Fourteen (14), Township twenty-two (22)
South Range Ten (10) East of the Willamette
Meridian, Deschutes County, Oregon."
A 30 -foot right-of-way was reserved in the deed for roadway and
utility purposes. This deed was the first conveyance in which
the subject tract was not conveyed in bulk with other property.
3. RECOGNITION OF TRACT BY COUNTY. County records show
that the subject tract is listed on the assessor's rolls as a
separate tax lot. As is discussed below, recognition by the tax
assessor by designating a separate tax lot number does not
constitute recognition of a tract for purposes of land use
planning. The County has not granted any land use, building or
environmental approvals on the property. The tract is not part
of any subdivision or partition approval.
4. ADJACENT PROPERTIES: There are eight parcels that
adjoin the subject property. The Board makes the following
findings with regard to those properties, from information
gathered from the records of the Deschutes County Tax Assessor
and. County Clerk:
A. Tax Lot 900 adjoins the north boundary of the subject
property. This lot was first conveyed as a separate
lot and is first described in County records by a
warranty deed dated June 7, 1971 that conveyed a life
estate in the property to Violet Hinkle. The property
contains improvements, including a dwelling constructed
in 1974. This lot is a part of Lot 68 of the US
Government plats.
Page 11 - Findings & Decision (LR-92-47/O'Neill)
Tax Lot 901 adjoins the north boundary of the subject
property. The lot is a part of Lot 68 of the US
Government plats. This lot was first described as a
separate lot in a warranty deed dated May 19, 1967.
The lot contains a dwelling constructed in 1976.
C. Tax Lot 1000 is located to the northwest of the subject
property and shares a corner point with Tax Lot 1600,
the subject property. Tax Lot 1000 is also known as
Lot 69 of the federal plats. This property contains a
dwelling constructed in 1958 and is first described as
a separate lot in County Clerk deed records in an
undated US government land patent recorded in Volume
123, Page 673.
D. Tax Lot 1500 adjoins the west boundary of the subject
property and is a part of Lot 74 of the federal plats.
This lot is first described as a separate lot in a
warranty deed dated May 5, 1960 and does not contain
any improvements.
F. Tax Lot 1800 adjoins the southwest corner of the
subject property. Tax Lot 1800 is also known as
Government Lot 77. This lot contains a dwelling
constructed in 1972. The lot was first conveyed as a
separate lot in a patent dated August 8, 1960.
F. Tax Lot 1700 adjoins the southern boundary of the
subject property. It is also known as Government Lot
76. The lot contains a dwelling constructed in 1958
and is first shown in County records in a warranty deed
dated May 4, 1970.
G. Tax Lot 1300 adjoins the southeast corner of the
subject property. The property is first shown in
County records in an Indemnity Selection List dated
April 6, 1993. The property is also known as
Government Lot 136. This lot is owned by Kelly and
Kathleen O'Neill, the applicants in the present case.
This tract is contiguous to the subject tract at a
point on the southeast corner by virtue of the fact
that the BLM survey shows these tracts to be contiguous
at a point, with Hinkle road lying in an easement along
the border of each property.
H. Tax Lot 1200 adjoins the eastern boundary of the
subject property. It is Lot 135 of the US plats. The
property contains a dwelling constructed in 1958 and is
first found in County records in a bargain and sale
deed dated June 7, 1975.
Page 12 - Findings & Decision (LR--92.47/0'Neill)
5. NATURE OF SURROUNDING AREA: The area surrounding the
property is comprised of other tracts that were identified by the
BLM's Small Tract Act surveys. This area covered the core area
of the La Pine rural service center. According to applicants, by
1962 the BLM had disposed of or arranged for the disposition of
all the Small Tract Act tracts except the 48 lots that were
ultimately transferred to the Baldwin -Herndon Trust and 4 tracts
that were reserved for creation of a community park.
None of the Baldwin tracts have improvements on them. Many
of the Small Tract Act lots that were disposed of prior to the
early 1960s do have improvements on them. Some of those
improvements were characterized by one area resident to be little
more than hunting cabins, with substandard sanitary facilities.
There was testimony that to protect the water supply in the area,
it is essential to annex this area into the La Pine sewer
district.
Although the subject parcel is on a paved road, many of the
Baldwin properties, particularly those to the east of Hinkle
Road, are served only by unpaved, ungraded roads. The applicants
acknowledged that there is a need to put roads in to access many
of these properties. In addition, the applicants acknowledge
that the Baldwin tracts are subject to a 16 1/2 -foot right of way
(for a total right of way of 33 feet) that would need to be
expanders to 30 feet on each lot to meet the County's 60 -foot road
right-of-way standard. Although the applicants testified that
the Baldwin trust would be willing to grant the 60 -foot right-of-
way, there was no discussion as to what standards any such roads
would be built to or when they would be built.
IV. BACKGROUND OF LOT OF RECORD PROVISION
The lot of record provision is found in the definition
section of the County Zoning Ordinance. The language is set
forth below in Section V of this decision. As explained in
Section II above, under the County Code, no use can be made of a
property unless the property constitutes a lot of record.
A. History
The County has had a lot of record provision in its
ordinances since 1979. At that time, there was a provision that
required a lot of less than the minimum lot size to have been
created through a partition or a subdivision process before the
County would recognize it. See former Section 6.020(3) of PL -15
the Deschutes County Zoning Ordinance. In other words, a lot of
less than the minimum lot size would not be recognized for
purposes of development if it had simply been created by a deed
or land sales contract.
Page 13 - Findings & Decision (LR-92--47/O'Neill)
A specific lot of record definition was included as part of
the zoning ordinance in 1986. That lot of record provision
appears to have been modeled after the definition of "parcel"
that was added by the Oregon. Legislature to ORS 215.010 in 1985.
As a matter of practice, that lot of record definition was
applied to all units of land in the County before a use of the
land was allowed. In 1991, the lot of record definition was
specifically amended to state that as used in the zoning
ordinance the terms "lots" or "parcels" referred to lots of
record.
The only previous time the Board has reviewed a lot of
record question was in 1989, when the Board denied a lot of
record determination requested on a 5 -acre tract that was part of
the Atkins property off of Wilt Road near Sisters. The property
owner had filed a survey with the County Surveyor in 1963 showing
a 280 -acre tract divided up into 58 tracts of land of slightly
more than 5 acres. The Board found that a survey filed with the
County Surveyor did not in and of itself create any separate
units of land and that since the subject tract had been deeded by
the Atkins family after the date of the County's partition
ordinance became effective, the Board refused to recognize the
lot as a legal. lot. The County's position was upheld before the
Land Use Board of Appeals (LUBA) and the Court of Appeals.
A copy of the Board's decision in the Atkins case is
included in the record.
B. Purpose of Lot of Record Provision
The general purpose of the lot of record provision is to
prevent recognition of land tracts that were created outside of
applicable County land division proceedings. The County's land
division process for partitions and subdivisions encourages the
orderly division and development of land, giving consideration to
such factors as density requirements, access, necessary services
and availability of infrastructure to serve newly created
parcels. Such factors are often given short shrift when land
divisions are made through informal means, such as by attempting
to divide land by surveying and then deeding off land tracts
described by the survey.
A review of the 48 tracts shown on the BLM surveys involved
in this case shows why this is good policy. Many of these tracts
are unserviced and do not have presently have developed access.
Access easement widths do not meet County standards.
C. The Lot of Record Provision
The County's lot of record provision is set forth below.
lists which units of land the County will recognize as separate
Page 14 -- Findings & Decision (LR-92®47/O'Neill)
and distinct tracts of land for land use planning purposes. This
list is the exclusive list of lots that will be recognized by the
County as lots of record.8 Absent some reason arising outside
the lot of record provision, the County is not required to
recognize other tracts of land as lots of record.
To the extent there are exceptions to this list, those
exceptions are imposed by legal considerations outside of the
ordinance. There are two such exceptions that the County has
routinely recognized:
(1) Instances in which the Community Development Department
has inadvertently issued a permit, such as a septic permit, on
property not otherwise qualifying as a lot of record; and
(2) Instances in which the federal government has severed
individual parcels from the public lands by patent.
This case is the first time that an instance of this nature
has arisen under the lot of record provision. Because of the
peculiar facts in this case, it is not likely that such an
instance will arise again.
Failure to achieve lot of record recognition would require
that the subject tract go through the County's partition or
subdivision process. At 1.25 acres, the subject tract is above
the minimum lot size for the RSR -M zone, so it would be possible
to divide it off from tax lot 1300 through a partition.
The lot of record provisions that will be applicable to this
case are the provisions concerning deeds or land sale contracts
and the exclusion of filed surveys from being recognized as
creating lots of record.
V. APPLICATION OF LOT OF CORD DEFINITION
A. Lot of Record Definition.
The Title 18 lot of record definition reads as follows:
a Applicants attempted to argue that the County list could
not be regarded to be exclusive, pointing to the possibility of
lots being created through judicial partitions. With respect to
judicial partitions, the Board finds, as noted by County Legal
Counsel in its Haemo of March 22, 1994 that it has been the policy
of the County for some time to not recognize parcels created by
judicial partitions as lot of records. This is also supported by
legislative history behind changes in the definition of "partition"
in ORS Chapter 92.
Page 15 - Findings & Decision (LR-92-47/O'Neill)
Record.
a. A lot or parcel at least 5,000 sgs a feet an area and
at least 50 feet wide, which conformed to all zoning
and subdivision or partition requirements, if any, in
effect on the date the lot or parcel was created, and
which was created by any of the following means:
1. By partitioning land as defined. in ORS
Chapter 92;
2. By a subdivision plat, as defined in ORS
Chapter 92, filed with the Deschutes County
Surveyor and recorded with the Deschutes
County Clerk;
3. By d or contract, dated and signed by the
parties to the transaction, containing a
separate legal description of the lot or
parcel, and recorded in Deschutes County if
recording of the instrument was required on
the date of the conveyance. If such
instrument contains more than one legal
description, only one lot of record shall be
recognized unless the legal descriptions
describe lots subject to a recorded
subdivision or town plat;
4. By a town plat filed with the Deschutes
County Clerk and recorded in the Deschutes
County Record of Flats; or
5. By the subdividing or partitioning of
adjacent or surrounding land, leaving a
remainder lot or parcel.
b. The following shall not be d_+. to be a lot of
record:
1. A lot or pareel. created solely by a tax lot
segregation because of an assessor's roll
c Y+ge or for the convenience of the
assessor.
2. A lot or parcel. created by an intervening
section or township line or right-ofway.
3. A lot or parcel created by an unrecorded
subdivision, unless the lot or parcel was
conveyed subject to paragraph (a)(3) of this
section.
Page 16 - Findings & Decision (LRa-92-47/O'Neill)
4. A parcel created by the foreclosure of a
security interest."
B. Application
The issue arises as to whether the tract was ever created
and whether it was created in a manner that the zoning ordinance
recognizes. For the reasons set forth below, the Board finds
that the subject tract does not qualify as a "lot of record"
under the County's ordinances.
1. Lot or parcel must have been "created."
Federal surveys do not "create" distinct units of land in
the same context as do subdivisions and partitions. Partitions
and subdivisions undertaken under County law result in a tract of
land that is completely defined at the time of platting. The
Board finds that that is not the case with the units of land
identified in the BLM surveys. In this case, the tracts did not
take on their final attributes until the conveyance, at which
time they were subjected to various easements, including road
easements. See the restrictions set forth in the clear list and
in the deed to applicants.
This difference was recognized by the California Court of
Appeals in John Taft Corp. v. Advisory Agency, 207 Cal Rptr 849
(Cal. App. 2 Dist 1984):
"We concur that the term 'legal subdivision' as
used in the federal survey law refers neither to a
physical division of land nor to the allocation of a
parcel to more than one owner. The term there refers
instead solely to a survey method adopted to facilitate
the conveyance of public land to one or more owners by
establishing the geographic location of the land on a
descriptive map."
John Taft Cozp, at 843.
The court went on to note that unlike subdivision maps
produced pursuant to state subdivision law, naps produced by
federal surveys are not in the chain of title and do not provide
constructive notice in the way that subdivision maps produced
under state law do. Id. Federal surveys are filed in the office
of the U.S. Surveyor General rather than the local office of the
County Recorder, which is where all property transfers are
recorded. Id.
In this sense, the BLM surveys are analogous to the Atkins
survey that the Board found in 1989 did not create lots of
record.
Page 17 - Findings & Decision LR -92-47 O'Neill)
The Board also finds that, unlike subdivision or partition
plat maps in the state system, the federal surveys do not
continue to have any function after property described therein is
transferred into private hands. Thus for example, if there were
to be an adjustment of a lot line on any of the tracts described
in a Small Tract Act survey, the BLM "plats" would not be
changed. The BLM surveys function to facilitate the disposal of
lands in federal hands, but have no applicability to land in
private hands.
Finally, the Board finds that the surveying and "platting"
of federal lands does not mean that the lands so surveyed will
necessarily ever leave the public domain and become private.
Federal land managers are free to change the purposes under which
they hold land and retain land and/or offer it for disposition to
the public. That is the case here, where the purposes of the
original survey do not relate to the purposes under which the
land was ultimately transferred.
2. Lot or parcel must have been created in a manner
recognized by lot of record ordinance.
a. By partitioning
The Board finds that the subject tract was not created by
"partitioning" as that term is used in DCC 18.04.030.
"Partitioning" is defined with reference to ORS Chapter 92.
Chapter 92 defines a partition to be a land division that occurs
as a result of a formal approval process conducted by a County
according to criteria set forth by a County's land division
ordinance. The end result is a partition plat or prior to 1990,
a partition map dividing the property. Deschutes County has had
a partition ordinance in place since 1977; the subject tract was
not defined through a partition process. In addition a partition
by definition is a process that results in the creation of no
more than three lots. The 1953 federal survey plat added 100 new
lots to the bots surveyed for sale or lease under the Small Tract
Act.
In an attempt to squeeze into this definition, Applicants
have tried to describe the making of a federal survey as a
process that meets the definition of a "partition." The Board
finds that that makes no sense. Chapter 92 details the process
for approving and surveying partitions under state law. It sets
out the duties of all the players in the County process for
partitioning lands, such as the County Planning Commission, the
County Surveyor, the County Clerk, etc. There is no reference
whatsoever to federal surveys in ORS Chapter 92.
i\\
Page 18 indings & Decision (LR-92-47/d'Neill )
b. By subdivision
The Board finds that the subject tract was not created by a
subdivision plat as defined in ORS Chapter 92. Again, ORS
Chapter 92 envisions a formalized approval process administered
by the County. The subject tract was not defined through that
process. No subdivision plat describing the subject parcel has
been recorded with the County Clerk's office.
c. By town plat
The Board finds that the subject tract was not created by a
town plat filed with the Deschutes County Clerk and recorded in
the Deschutes County Record of Plats. Town plats were the
vehicles by which lands were subdivided under state law prior to
present subdivision requirements under ORS Chapter 92.
d. As a "remainder" lot
The Board finds that the subject tract does not constitute a
"remainder" lot. This provision has been interpreted by the
County to allow recognition of any tract that has been completely
isolated by surrounding lots or parcels recognized or
recognizable under the County's ordinance as a lot of record.
Thus, if for any reason all the surrounding lots or parcels
contiguous to the subject tract have been recognized as lots of
record, the subject tract would also be recognized.
The subdivision ordinance defines the term "contiguous land°
as follows: "Contiguous means that which touches or connects,
including that which touches or connects at a point. . ." DCC
17.08.160. The Board finds that the County has consistently used
this definition in the context of determining whether tracts of
land are joined or not.9 See, e.g., policy statement of John
Anderson, dated July 13, 1981.
Applicants sought to apply a federal definition of
"contiguous"from federal land management laws; however, that
definition is not applicable to the County's zoning ordinance.
9 Staff may have created some confusion when it referred to
the definition of "contiguous" from the zoning ordinance, which
does not explicitly state that properties may be contiguous by
meeting at a point only. It is not unreasonable to use the
subdivision ordinance definition of "contiguous" here, since the
issue at hand is whether tracts are deemed to be separate or
joined. The subdivision ordinance is the County's land division
ordinance. The issue of contiguity under the zoning ordinance is
more likely to come up with conflicts between uses on adjoining
lands, in which case less precision is required.
Page 19 - Findings & Decision (LR-92-47/0'Neill)
The County is not required to interpret its ordinances in
conformance with federal definitions that are intended to apply
to its own management of federal lands.
In this case, as the Board found above, the subject tract is
contiguous at the southeast corner to an undeveloped tract that
was one of those described in the BLM small tract survey and
conveyed to the Baldwin -Herndon trust in 1993 (tax lot 1300,
"Lot" 136 of the BLM survey). For purposes of the County's lot
of record definition, the tract is still joined at a corner to
"lot" 136. Accordingly, the subject tract cannot be recognized on
this basis.
e. By deed or land sale contract
The Board finds that the subject tract is not one that is
defined by deed or contract, as that term is used in the lot of
record definition. This provision has been consistently
interpreted by the County to allow for recognition of a lot or
parcel by separate description in a deed or land sale contract at
a time when there were no applicable county land division
requirements. The Board finds that such an interpretation is
consistent with the provisions of ORS 215.010.
The County's present subdivision ordinance dates back to
1970. The County's partition ordinance dates back to 1977. Any
purported division of the subject tract said to have been
accomplished by a conveyance was effected after the effective
dates of those County ordinances. In addition, the first
recorded conveyance including this tract does not set out a
separate legal description as is required by the lot of record
provision. The clear list conveys multiple tracts in the sate
conveyance, contrary to the single tract requirement of the
criterion allowing recognition of tracts identified by a
conveyance. For these reasons, this provision cannot be used to
provide recognition for the subject tract.
The applicants devoted considerable energy to arguing that
the State acquired equitable title to the property in 1968 and
that upon clear listing, legal title in the State related back to
1968. The Board finds that even if that argument were valid as a
matter of federal public land law, it does not hely applicants
fall within the County's lot of record definition. ° The fact
16 Applicants argue that because the State did everything
that was required of it in applying for the selected lands in 1968,
the State, on the Baldwin heirs' behalf, acquired equitable title
to the selected lands. The applicants' argument in this regard is
undercut by their reliance on U.S. Supreme Court cases that pre-
date the Taylor Grazing Act (which required classification of lands
Page 20 - Findings & Decision (LR-92--47/O'Neill)
remains that there was no conveyance of the subject tract as a
separately described lot or parcel prior to the time that the
County had applicable land division ordinances.
The applicants have also argued that in combination with the
equitable title doctrine, ORS 93.680(1)(c) justifies the
recognition of the subject tract as a lot of record under the
deed or land sale contract provision. ORS 93.680(1)(c) allows
for "approved lists of lands granted to this state or to
corporations in this state" to be recorded with County deed
records with the same effect as an ordinary conveyance. The
Board finds that that argument does not aid applicants, either.
The Board finds that a "clear list" is the "approved list" which
has the same effect as a deed under ORS 93.680 and federal
law.'1 A11 this provision does is require a County Clerk, when
presented with a clear list, to record it as he or she would any
other deed. It does not require that the County recognize any
as a pre --requisite for selection of indemnity lands, a
discretionary decision made by the Secretary of Interior or his
designees) . See Andrus v, Utah, 446 US 500, 100 S Ct 1803, 64 L Ed
2d 458 (1980) , see also Occidental Oil Shale Co. v. State Board of
Land Commissioners, 692 P 2d 321 (Colo. 1984). Furthermore, the
record in this case does not clearly demonstrate that the Secretary
or his designees made a final decision to classify the property in
1968 for disposition to the State under the Indemnity Act.
Applicants provided no documents showing that the classification
process in 1968 was in fact completed. Finally, it appears that
the BLM disputes whether the State took all necessary steps to
perfect its selections in 1968. Ultimately, it appears that this
matter will be decided in litigation between the Baldwin heirs and
the BLM.
On a more fundamental level, the purpose of the doctrine of
equitable title in this public land law context is to restrain the
federal government from defeating or aiding in the defeat of
indemnity selections once a state's indemnity lands application has
acheived certain threshhold decision points. See, e.g., Andrus,
supra. In that light, whether or not in this case the State had
equitable title has little, if any, bearing on whether the County
must in 1994 recognize the subject tract as a lot of record.
11 As noted in Footnote 3 of State of Oregon v. BLM, 876
F2d 1419, 1423 (9th Cir., 1989), "'A clear list is a government
list of lands, title to which Ms been cleared to a party. It
transfers title as effectively as a patent.' 767 F.Supp. at
1055."
Page 21 - Findings & Decision (LR-92-47/O'Neil
particular tract as a
to the County Clerk i
not require that the
recorded in 1968.
of of record. No clear list was presented
this case until 1993. The statute does
unty Clerk regard this deed as having been
3. Lot or parcel cannot have been describe
that the lot of record definition explic
excludes.
n ways
tly
a. Recognition of tract as a tax lot
The Board finds that the fact that the subject tract has
been given a tax lot number does not mean that it was a legally
created lot or parcel. The lot of record definition explicitly
excludes tracts purportedly created by a tax assessor's roll
change from being recognized as a lot of record. This is
consistent with ORS 215.010.
b. A filed survey
The subject tract's identity as a separate and distinct unit
of land appears to rest entirely upon the 1953 BLM survey. In
the past, the County has treated surveys purporting to create
more than 3 lots at a time to constitute an "unrecorded
subdivision," as that term is used in the lot of record
definition. The term "unrecorded" refers to the fact that the
survey was not recorded in the deed records of the County, as
would be the case with a platted subdivision approved pursuant to
ORS Chapter 92.
The Board finds this case to be analogous to the survey at
issue in Atkins v. Deschutes County, previously litigated by the
County, wherein the land owner attempted to establish as a lot of
record a unit of land described only in a survey filed with the
County surveyor's office in the 1960s. The County refused to
recognize that parcel as a lot of record. The County's position
was subsequently upheld before LUBA and the Court of Appeals
See Atkins v. Deschutes County, 19 Or LUBA 84, affirmed 102 Or
App 298 (1990). Copies of the County's decision and briefs and
copies of the LUBA and Court of Appeals decisions in that case
are included in the record.
The fact that this case involves a survey of federal lands,
undertaken pursuant to a federal process does not make this case
different. Just as with a filed survey, the units of land
identified in a federal survey do not become of record as do
subdivision plats and partition plats. They are subject to
change by the "owner," such as by subjecting them to easements
prior to conveyances. In this case, the entire purpose under
which the federal lands were held and under which the lands were
Page 22 - Findings & Decision (LR-92-47/O'Neill)
initially described as small tracts was changed prior to the
disposition of the lands.
V. APPLICATION OF LAW OUTSIDE THE LOT OF RECORD DEFINITION
A. Recognition of lots based on laws outside the lot of
record definition.
The Board finds that in certain instances units of land will
be recognized by the County for planning purposes based on law or
legal concepts external to the lot of record definition. Those
instances are as follows:
1. By estoppel
The County has recognized as "lots of record" those tracts
where the County Community Development Department had issued some
form of approval, such as septic permits, building permits or
planning permits for the tract as a separate tract. Such
recognition was made on the theory that by issuing a permit on
the property, the County's Community Development Department had
implicitly recognized a tract as a lot of record and was estopped
from denying lot of record status to such properties.
There are no facts here that would warrant recognition under
such a theory. The fact that the County Assessor's Office has
recognized the tract as a tax lot does not estop the County to
recognize the tract as a lot of record. The County's ordinance
explicitly states that the identification of tax lots does not
confer lot of record status on the subject parcel. This is
supported by ORS 215.010, which does not recognize tax lots as
legal lots.
A review of county records shows no permits issued on Lot 75
or any of the other tracts transferred to the state by the BLM
under clear list OR 3164.
2. By federal patent
With respect to transfer and exchanges of federal land, the
County recognizes federal transfers as in essence conferring lot
of record status on contiguous blocks of land as a severance of
property from the public lands. To fail to recognize such land
units would impede the federal government in its ability to
dispose of its public lands, and the county would in all
likelihood be found to be preempted if it were to require the
Page 23 Findings & Decision (LR--92-47/O'Neill.)
federal government to sever its lands from the ublic lands by
going through the county land division process.
This exception to the applicability of the County's lot of
record provision is distinguishable from the case at bar. The
County does not dispute the validity of the BLM's separating off
from its holdings a parent parcel to the Baldwin -Herndon Trust
without requiring that the federal government obtain a partition
to do so. The issue in this case is whether the County is
required to recognize internal divisions within that parent
parcel, such as those represented by the numerous government lots
described by BLM surveys that do not impinge upon the BLM's
ability to dispose of its lands. The Board finds that the act of
severing the land from the public domain and transferring it into
private ownership creates one lot for all contiguous lands
transferred in a federal patent or clearlist.
B. Response to Applicant's Arguments
1. County lot of record ordinance is not preempted by
BLM public land laws.
Applicant contended that the County is required to give lot
of record status to the subject property by virtue of the actions
of the federal government in creating the "government lots" under
the Small Tract Act. For the reasons set forth below, the Board
rejects that argument.
a. Overview of Preemption Law
Generally stated, federal preemption is the exercise: of
federal authority over a subject area in a manner that is
intended to override conflicting state laws. See, California
Coastal omission v,,. Granite Rock Com •an.:, 480 US 572, 94 L Ed
2d 577. 107 S Ct 1419 (1987) (dealing with preemption of state
land use laws regulating mining by federal public land laws under
Article IV, Section 3, the "property clause"). At issue here is
the first step of the analysis - whether the Deschutes County lot
12 Once that severance is accomplished, however, it makes
sense that the lot of record definition would be applied. Once
severed, the land becomes private land, no longer subject to
federal public land laws. One prominent example of former federal
lands becoming subject to state regulation after leaving the public
domain is mining claim patented under the Mining Law of 1872. Many
operators of such claims purposely operate their claims as
permittees on federal land without going to patent so as to avoid
state regulations insofar as possible.
Page 24 - Findings & Decision (LR--92--47/O'Neill)
of record definition conflicts with applicable federal public
land law.
b. Congress has not occupied the field.
An analysis of Granite Rock demonstrates that Congress did
not intend to occupy the field of public land law such that any
attempt to apply state zoning law to federal lands would be
invalid. Applicant's preemption argument is founded to a great
extent on an out -dated occupation of the field analysis or on
cases that dealt with conflicts involving statutes not applicable
to this case. Current preemption analysis favors a more
flexible, case -specific analysis than that presented by
applicants, focusing on actual conflicts between federal and
state or local enactments and whether Congress intended to
preempt. The preemption test regarding federal public land law
has been stated as follows by the authors of the leading casebook
on federal public lands:
(Outside of Federal Enclaves, such as military
installations, post offices or National Parks purchased
with consent of the state) the beginning premises is
that state law controls, and the search is for federal
law that might preempt state authority - the ultimate
criterion usually being the intent of Congress."
Coggins, Wilkinson and Leshy, Federal Public Land and Resources
Law, Foundation Press, 3rd Edition, 1992, p. 203.
c. No conflict exists.
Applicants have attempted to argue that the applicable
federal law is the Small Tract Act and that the application of
the County's lot of record ordinance impermissibly conflicts with
that enactment.
Applicants' preemption theory fails from the start, since
the Board finds from statement of the applicants and from BLM
documents associated with the transfer of the lands that the
federal law under which the subject tract was held by the BLM and
then transfered out of federal ownership occurred was not the
Small Tract Act, but the Indemnity Act.' The purpose of the
Indemnity Act is to provide the states a means to offset losses
13 As noted above, both in 1968 and in 1993, the BLM stated
that the classification of lands for transfer out of the public
domain was pursuant to the Indemnity Act. In addition, the
applicable BLM. land use plan covering the tract, the Brothers - La
Pine Resource Management Plan, classified the land as suitable for
disposition to the state.
Page 25 - Findings & Becislon (LR -92-47 0'
of school land grants resulting from dispositions or reservations
of federal lands by the federal government. That purpose is
effectuated by the transfer of selected alternative lands in the
same amount of acres of non -mineral lands as the school lands
that became unavailable to the State through the actions of the
federal government. Once transfer of roughly equivalent lands t
the affected state has occurred, the purpose of the in -lieu
statutes has been served." Whether the land being transfered
is in one block or is made up of separate and distinct parcels is
.irrelevant for the purposes of the law. The identification of
Lot 75 by lot number facilitated transfer of the lands to the
state under the Indemnity Act, but did not mandate that Lot 75,
once transferred, be treated as a discrete tract of land for
purposes of applying the County's land use planning laws."
Applicants have presented no argument that the failure of
the County to recognize purported internal, divisions in a block
of federal lands transferred to the state under the Indemnity Act
in any way frustrates the purpose of that Act. The Board finds
that there was no federal purpose in the Indemnity Act to create
and maintain separate tracts of land for disposition to private
parties.
The Board finds that the disposition of the subject tract
and others listed on Application OR 3164 was not effected to
accomplish the goals of the Small Tract Act. Furthermore, as a
matter of fact, the transfer in bulk of 48 small tracts to the
State of Oregon did not comport with the purposes of the Small
Tract Act. The act contemplated the disposal by the federal
government of Small Tract Lands directly to individuals for the
purposes of residential, recreational, business or community site
purposes. 43 USG Sec. 682a. It also limited the number of
tracts any one person or organization could acquire to one tract
except upon a showing of good faith and reasons satisfactory to
the Secretary of Interior. Id. In addition, the act set a low
minimum selling price - the price of the survey - for the
apparent purpose of encouraging sale of such lands directly to
individuals for the establishment of communities. 43 USC Sec.
682b. The Act did not seek to dispose of small tracts in bulk to
a developer who would then sell off individual lots at market
prices.
14 The federal government's indemnity obligations are satisfied
by the transfer of a "rough equivalent" of the school land grants
disposed of by the federal government. Andrus v. Utah, 446 U.S.
500 (1980).
zs Federal regulations governing grants to states as in lieu
selections require that selected lands be described in accordance
with the official plats of survey. 43 CFR Sec. 2621.1(d)(1).
Page 26 - Findings & Decision (LR-92-47/O'Neill
Finally, the Board finds that there can be no conflict here
because once the initial transfer of the property from the
federal government to the State was accomplished, federal
authority over the property ceased to exist.
The Board finds that the BLM is aware of the lot of record
issue regarding the Baldwin -Herndon lands and has expressed no
concern that the County would be impeding a federal perogative by
applying its lot of record standard.
2. Application of County lot of record definition is
not precluded by ORS 92.017.
ORS 92.017 provides that "a lot or parcel lawfully created
shall remain a discrete lot or parcel, unless the lot or parcel
lines are vacated or the lot is further divided as provided by
law." Applicants argued that the subject tract was 'created" by
the 1953 federal survey and that by virtue of ORS 93.017 the
County was required to recognize it. For the reasons set forth
below, the County rejects applicants' argument.
First, as set forth in Section V(B)(1) above, the applicants
have not demonstrated that the federal surveys actually "created"
any discrete lots or parcels. See Atkins v. Deschutes County, 19
Or LUBA 84, affirmed 102 Or App 298 (1990).
Second, the Board finds that even if the federal surveys
were judged to have "created" lots or parcels, creation by way of
a federal survey is not a manner that the County would be
required to recognize under ORS 93.017. The Board finds, for the
reasons set forth in the County's brief to the Court of Appeals
in Atkins, that the scope of "lot or parcel" in ORS 92.017 is
defined by the definition of lot or parcel set forth in ORS
215.010. In making this finding, the Board overrules the County
Hearing Officer on this point. The Board finds that the Hearing
Officer failed to adequately consider the context of ORS 215.010
and its origin in the same bill (HB 2381; 1985 Oregon Laws,
Chapter 702) that enacted ORS 92.017. The legislative history
clearly shows that the scope of the parcels that ORS 92.017
requires County's to recognize are defined by ORS 215.010.
Finally, the Board finds that the lot of record definition
is consistent with LUBA's analysis of ORS 92.017 in is •auks v.
Clackamas County, 24 Or LUBA 164 (1992). That case analyzed the
impact of ORS 92.017 upon land use regulations that limit or
prohibit separate development of lawfully created lots. Kispaugh
held that ORS 92.017 gave the owner of a lawfully created lot the
legal right to sell the lot as a single unit but did not grant
the owner any rights to separately develop the lot. LUBA
conducted an extensive review of the legislative history of ORS
92.017. That history included the following statements:
Page 27 - Findings & Decision (LR-92--47/O'Neill)
"What the bill is saying is once a subdivision always a
subdivision, unless you formally vacate it. It does not
address *** the lots of record."
"An important point I need to make about this bill is that.
it in no way gives new development rights to anyone. So, to
get it on the record, we're not trying to legitimize lots of
record for any kind of development. People shouldn't look
at this as having a piece of property and going in for a
building permit. Development of property remains subject to
current state and local land use and zoning laws, ordinances
and regulations. The practical effect of the bill is to
allow units of land that were lawfully created over the
years to be sold . . ."
In the present case, the County's interpretation of its lot
of record requirement acts as a limitation upon the development
of that lot but does not prevent the lawful transfer of the lot.
The applicant may, therefore, sell Lot 75 as a separate lot but
may not develop it as a separate lot without obtaining further
land use approvals from the County to allow the lot to be
developed as a single lot. The application of the lot of record
requirement, therefore, does not violate ORS 92.017.
3. Application of the County's lot of record
definition is not precluded by ORS 93.680.
Applicants have argued that this statute requires the County
to recognize the subject tract as a lot of record. As explained
earlier, this provision is a statute directed to County Clerks
requiring that they record clear lists presented to them for
recording. It does not require that the County Planning Division
recognize as a lot of record a parcel first conveyed in a clear
list dated April 1994.
The Board therefore finds that the County's lot of record
provision is not in conflict with ORS 93.680. The provisions
serve different purposes. ORS 93.680 deals with issues relating
to transfers of interests in real property. It describes which
federal conveyances must be recognized for recording purposes.
It is not a land use statute. The County's lot of record
provision, on the other hand, is a land use provision: it
determines which conveyances the County will recognize as
creating a lawful tract of land.
Based upon the foreg
applicant's request that
DECISION
ng, the Board hereby DENIES the
vernment Lot 75 be recognized as a
Page 28 - Findings & Decision (LR-92-47/O'Neill)
legal lot of record for purposes of Title 18 of the Deschutes
County Code.
DECISION BECOMES FINAL 21 DAYS FROM THE DATE LED,
BALED.
DATED this day of November, 1994.
ATTEST:
cording Secreta
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
NANCY POPE SCH GEN, Chai
TOM THROOP, Coixniss3o
Y H. S
Page 29 - Findings Decie on (LR-92-47/O'Neill)
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There is a real problem for landowners wishing to sell a home adjacent to grow sites because they are required to
disclose that fact and the related issues of noise, lighting, smell that reduce the property's value. I don't know if
there are any solutions to this.
I think that the county does need to evaluate the above points and others, but I worry that renewing public hearings
on the subject has pitfalls. The marijuana industry is well-connected, well -organized, and highly motivated to make
the existing rules more lenient. People with this perspective are far more likely to attend public hearings than
scattered land owners and long-term rural residents who don't know about meetings or are private people who may
not want to drive from outlying properties to speak or participate in a public hearing. If this bag -of -worms is brought
back to the surface, will the existing rules be undermined and will we lose the limited protections that we currently
have?
Sincerely,
Gretchen Pederson, Deschutes County resident
Nick Lelack
From:
Sent:
To:
Subject:
Follow -u notes re
a rd in
Pete and Gretchen Pederson <pondhawk2@gmail.com>
Tuesday, June 20, 2017 12:33 PM
Nick Lelack
CDD Work Plan Hearing June 14th comments
the CM Work Plan Hearin on Wednesday 14 June 2017
Deschutes County Board of County Commissioners
Deschutes County Community Development Department
1300 NW Wall Street
Bend, OR 97703
1 urge you to put off the review of the marijuana rules until the summer of 2018 for several
reasons.
1) We didn't opt -out because the county commissioners, with public input and the work of the
Marijuana Advisory Commission, came up with a set of rules most of us could live with and we
are somewhat satisfied with them. Why reopen this contentious, time-consuming, and slippery
subject again? Once it's reopened, we may never be able to put it back like it was before. This is
a chance you don't have to take.
2) The marijuana industry will always want more. They most likely are now better funded and
better organized than they were last year. They have the state on their side that wants to drop
Nick Lelack
From: Paula Hawes <paulahawes@sbcglobal.net>
Sent: Tuesday, June 20, 2017 4:43 PM
To: Phil Henderson; Tammy Baney; Tony DeBone
Cc: Nick Lelack
Subject: Marijuana Regulations
Attachments: SB1598 Enrolled.pdf; MARIJUANA NEWS PERIODICAL 6-7-17.docx HEADLINE.
COLORADO MAJOR VICTORY Rico Marijuana Opinion ruling.pdf; Marijuana Clackamas
County Production 24200 Lawsuit Easement Complaint Flle Stamped 4.17.17.pdf;
Colorado RICO 6-7-17 Marijuana CA10 Opinion.pdf
Dear Commissioners,
It is very discouraging that those of us who are not involved in the marijuana industry are yet again being forced to write
to ask that you maintain the marijuana regulations that were put in place at some considerable expense to County
taxpayers.
Please remember that marijuana passed with a very small margin in Deschutes County, it is also worth mentioning again
that rural voters actually voted against the measure, yet we are the ones who are being asked to suffer the negative
impacts of marijuana production. If the County decides to make changes to the regulations that were put in place this is
nothing short of the "bait and switch" tactic that was used by Salem Legislators that determined, without public input,
that marijuana should be categorized a crop. If the County wants to make changes to the regulations that were put in
place then it should be back to the drawing board and this issue should be decided by a vote of the public.
As you are aware Deschutes County sent ex -Commissioner Unger to Salem in order to advise Salem legislators of the
unique make-up of the County's land. The fact that many EFU parcels are often surrounded by smaller MUA and
primarily residential lots. As such unless "reasonable time, place and manner" regulations could be put in place
Deschutes County would have no choice but to Opt Out. (I am attaching the regulations Alan Unger was able to get
approved.)
Although the County decided not to send out notifications to homeowners alerting them to the fact that Salem
Legislators had decided to grant marijuana a crop status, there was sufficient public input from rural residents asking
that this extremely impactful issue be determined by a vote of the public. Unfortunately, you made the decision to Opt
In, at the same time assuring us that you had put regulations in place that would protect those rural residents who were
not in the marijuana industry.
Now it appears that after getting the Opt In approval a handful of marijuana industry individuals are unhappy with these
regulations. Ironically a couple of them were even selected for the Marijuana Advisory Committee (MAC) and were
charged with coming up with these same regulations. Considering many non -marijuana rural residents were denied a
place on the MAC, and the fact that the Committee was made up primarily off those currently profiting from the
marijuana industry or those hoping to in the very near future, there can be no question of the marijuana industry not
being fairly represented. These rules are far from being "pro -rural resident," yet apparently they are still not enough for
the marijuana industry. It appears that they will never be satisfied until every rural parcel is leased out to multiple
different growers who will fill them full of marijuana greenhouses, running their industrial fans 24/7 and blazing their
grow lights all night long..
Central Oregon has some of the most beautiful landscape in the Northwest, attracting many people who want to call this
place their home. Although we listened to many testimonies from the marijuana industry regarding the much chastised
"retiree," it is worth remembering that these retirees pay property taxes and spend money that drives the County's
most of our county's rules and make it exactly like a farm crop with bad odors, bright lights,
and all. The state's fervor may come to pass.
3) You haven't given the system now in place a chance to perform. After listening to the
testimony at the hearing on June 14`h', law enforcement doesn't seem to be up to speed yet. Do
you think the Sheriff's Department will have their effectiveness fine-tuned in the next two
months, or will you .know more in another year?
4) Has enough time passed now for a good analysis of what the law enforcement costs will be in
the future, including controlling smuggling? Will the state have yet a good idea of the revenue
generated to offset these costs and for running the program?
If you change your rules and regulations the summer after this one, in 2018, you'd have far
more information about what needs to be changed and would have sufficient, tested data to see
what ideas are best. If you do put the issue to review in September, I hope you are aware of the
pressure you will be placed under by the marijuana industry to drop many of the regulations that
are so dear to many of us. They are the reason why the county didn't opt out when we had the
chance.
Put off the review until summer 2018 if having one at all. You owe it to the county residents
rather than a special interest group.
Robert Pederson, Deschutes County resident
2
economy. Their purchases enable many different industries in Deschutes County to succeed, and this is accomplished
without destroying their neighbor's property values.
The marijuana industry was very vocal about the many jobs the industry would bring to Deschutes County, yet does
Deschutes County need more minimum wage jobs? Don't we already have many job openings that are going unfilled in
the County? Is it possible that increased marijuana consumption causes people to be even less motivated to get a job?
Finally, given the large amounts of marijuana that is being confiscated by the authorities crossing State lines and the
dubious honor of Oregon now being the #1 supplier of black market pot in the US, why would the County want to speed
up marijuana grow applications? Wouldn't it be irresponsible for Deschutes County to encourage increased marijuana
production when there is strong evidence that Oregon is already breaking Federal Jaws. This could potentially put our
County and taxpayers at risk of being sued by another State should illegal marijuana be tracked to a grow operation in
Deschutes County. (Currently there is a RICO lawsuit in Colorado being brought by homeowners who are claiming their
property values have been harmed by a neighboring marijuana grow operation, and now another RICO lawsuit has been
filed in Clackamas County by several rural residents.)
Please remember the majority of rural residents in Deschutes County do not want marijuana production in their
neighborhoods, as such we sincerely hope our elected officials will stand up and represent our interests.
Best regards,
Paula Hawes
78th OREGON LEGISLATIVE ASSEMBLY --2016 Regular Session
Enrolled
Senate Bill 1598
Sponsored by Senator BURDICK, Representative LININGER; Senators BEYER, FERRIOLI, KRUSE,
Representatives BUCKLEY, HELM, OLSON, WILSON
CHAPTER
AN ACT
Relating to cannabis; creating new provisions; amending ORS 475B.050, 475B.160, 475B.215, 475B.235,
475B.245, 475B.340, 475B.370, 475B.375, 475B.443, 475B.490 and 475B.500 and section 79, chapter
, Oregon Laws 2016 (Enrolled House Bill 4014); repealing sections 16, 17, 18, 26, 27, 28, 28a,
29 and 67, chapter _, Oregon Laws 2016 (Enrolled House Bill 4014), and sections 16, 17, 18,
19 and 20, chapter _, Oregon Laws 2016 (Enrolled Senate Bill 1511); and declaring an emer-
gency.
Be It Enacted by the People of the State of Oregon:
LAND USE LAWS
SECTION 1. Section 2 of this 2016 Act is added to and made a part of ORS 475B.010 to
475B.395.
SECTION 2. The requirement under ORS 475B.063 to obtain a land use compatibility
statement as a condition of receiving a license under ORS 475B.070 does not apply to an ap-
plicant if:
(1) The applicant is applying for a license at an address where a marijuana grow site
registered under ORS 475B.420 is located;
(2) The address is outside of city limits;
(3) At least one person responsible for a marijuana grow site located at the address first
registered with the Oregon Health Authority under ORS 475B.420 before January 1, 2015;
(4) Each person responsible for a marijuana grow site located at the address first regis-
tered with the Oregon Health Authority under ORS 475B.420 before February 1, 2016; and
(5) The applicant is applying for a mature marijuana plant grow canopy of:
(a) 5,000 square feet or less, if the marijuana is produced outdoors; or
(b) 1,250 square feet or less, if the marijuana is produced indoors.
SECTION 3. ORS 475B.370 is amended to read:
475B.370. (1) [Notwithstanding any other provision of law,] Marijuana is:
(a) A crop for the purposes of "farm use" as defined in ORS 215.203;
(b) A crop for purposes of a "farm" and "farming practice," both as defined in ORS 30.930;
(c) A product of farm use as described in ORS 308A.062; and
(d) The product of an agricultural activity for purposes of ORS 568.909.
(2) Notwithstanding ORS chapters 195, 196, 197 [and], 215 and 227, the following are not per-
mitted uses on land designated for exclusive farm use:
Enrolled Senate Bill 1598 (SB 1598-A) Page 1
(a) A new dwelling used in conjunction with a marijuana crop;
(b) A farm stand, as described in ORS 215.213 (1)(r) or 215.283 (1)(o), used in conjunction with
a marijuana crop; and
(c) A commercial activity, as described in ORS 215.213 (2)(c) or 215.283 (2)(a), carried on in
conjunction with a marijuana crop.
(3) A county may allow the production of marijuana as a farm use on land zoned for farm or
forest use in the same manner as the production of marijuana is allowed in exclusive farm use zones
under this section and ORS 215.213, 215.283 and 475B.063.
(4) This section applies to:
(a) Marijuana producers licensed under ORS 475B.070;
(b) Persons registered under ORS 475B.420 and designated to produce marijuana by one
or more persons who hold valid registry identification cards issued under ORS 475B.415; and
(c) For the purpose of producing marijuana or propagating immature marijuana plants,
persons who hold certificates under ORS 475B.235.
SECTION 4. ORS 475B.340 is amended to read:
475B.340. (1) For purposes of this section, "reasonable regulations" includes:
(a) Reasonable conditions on the manner in which a marijuana producer licensed under ORS
475B.070 may produce marijuana or in which a person who holds a certificate issued under ORS
475B.235 may produce marijuana or propagate immature marijuana plants;
(b) Reasonable conditions on the manner in which a marijuana processor licensed under ORS
475B.090 may process marijuana or in which a person who holds a certificate issued under ORS
475B.235 may process marijuana;
(c) Reasonable conditions on the manner in which a marijuana wholesaler licensed under ORS
475B.100 may sell marijuana at wholesale;
(d) Reasonable limitations on the hours during which a marijuana retailer licensed under ORS
475B.110 may operate;
(e) Reasonable conditions on the manner in which a marijuana retailer licensed under ORS
475B.110 may sell marijuana items;
(f) Reasonable requirements related to the public's access to a premises for which a license or
certificate has been issued under ORS 475B.070, 475B.090, 475B.100 [or], 475B.110 or 475B.235; and
(g) Reasonable limitations on where a premises for which a license or certificate may be issued
under ORS 475B.070, 475B.090, 475B.100 [or], 475B.110 or 475B.235 may be located.
(2) Notwithstanding ORS 30.935, 215.253 (1) or 633.738, the governing body of a city or county
may adopt ordinances that impose reasonable regulations on the operation of businesses located at
premises for which a license has been issued under ORS 475B.070, 475B.090, 475B.100 or 475B.110,
or for which a certificate has been issued under ORS 475B.235, if the premises are located in
the area subject to the jurisdiction of the city or county, except that the governing body of a city
or county may not:
(a) Adopt an ordinance that prohibits a premises for which a license has been issued under ORS
475B.110 from being located within a distance that is greater than 1,000 feet of another premises for
which a license has been issued under ORS 475B.110.
(b) Adopt an ordinance after January 1, 2015, that imposes a setback requirement for an
agricultural building used to produce marijuana located on a premises for which a license
has been issued under ORS 475B.070 if the agricultural building:
(A) Was constructed on or before July 1, 2015, in compliance with all applicable land use
and building code requirements at the time of construction;
(B) Is located at an address where a marijuana grow site first registered with the Oregon
Health Authority under ORS 475B.420 on or before January 1, 2015;
(C) Was used to produce marijuana pursuant to the provisions of ORS 475B.400 to
475B.525 on or before January 1, 2015; and
(D) Has four opaque walls and a roof.
Enrolled Senate Bill 1598 (SB 1598-A) Page 2
[(3) Regulations adopted under this section must be consistent with city and county comprehensive
plans and zoning ordinances and applicable provisions of public health and safety laws.]
SECTION 5. ORS 475B.500 is amended to read:
475B.500. (1) For purposes of this section, "reasonable regulations" includes:
(a) Reasonable limitations on the hours during which the marijuana grow site of a person des-
ignated to produce marijuana by a registry identification cardholder, a marijuana processing site
or a medical marijuana dispensary may operate;
(b) Reasonable conditions on the manner in which the marijuana grow site of a person des-
ignated to produce marijuana by a registry identification cardholder, a marijuana processing
site or a medical marijuana dispensary may transfer usable marijuana, medical cannabinoid pro-
ducts, cannabinoid concentrates, cannabinoid extracts, immature marijuana plants and seeds;
(c) Reasonable requirements related to the public's access to the marijuana grow site of a per-
son designated to produce marijuana by a registry identification cardholder, a marijuana processing
site or a medical marijuana dispensary; and
(d) Reasonable limitations on where the marijuana grow site of a person designated to produce
marijuana by a registry identification cardholder, a marijuana processing site or a medical
marijuana dispensary may be located.
(2) Notwithstanding ORS 30.935, 215.253 (1) or 633.738, the governing body of a city or county
may adopt ordinances that impose reasonable regulations on the operation of marijuana grow sites
of persons designated to produce marijuana by registry identification cardholders, marijuana proc-
essing sites and medical marijuana dispensaries that are located in the area subject to the juris-
diction of the city or county.
SECTION 6. ORS 475B.375 is amended to read:
475B.375. [ORS 475B.025, 475B.033, 475B.035, 475B.040, 475B.045, 475B.055, 475B.060, 475B.065,
475B. 068, 475B.070, 475B.090, 475B. 100, 475B.110, 475B. 130, 475B. 160, 475B. 165, 475B. 170, 475B. 180,
475B.185, 475B.190, 475B.195, 475B.200, 475B.205, 475B.210, 475B.250, 475B.255, 475B.260, 475B.265,
475B.270, 475B.275, 475B.280, 475B.298, 475B.300, 475B.305, 475B.310, 475B.315, 475B.320, 475B.325,
475B.330, 475B.335, 475B.340, 475B.350, 475B.353, 475B.355, 475B.358, 475B.365, 475B.378, 475B.380
and 475B.395:1 Except for ORS 475B.370 and 475B.373, ORS 475B.010 to 475B.395:
(1) Do not apply to the extent a person acts within the scope of and in compliance with the
Oregon Medical Marijuana Act; and
(2) Do not amend or affect duties, functions and powers of the Oregon Health Authority under
the Oregon Medical Marijuana Act.
FINGERPRINTING
SECTION 7. (1) Sections 9 and 10 of this 2016 Act are added to and made a part of ORS
475B.010 to 475B.395.
(2) Section 11 of this 2016 Act is added to and made a part of ORS 475B.550 to 475B.590.
SECTION 8. ORS 475B.050 is amended to read:
475B.050. For the purpose of requesting a state or nationwide criminal records check under ORS
181A.195, the Oregon Liquor Control Commission may require the fingerprints of any individual
listed on an application submitted under ORS 475B.040. The powers conferred on the commission
under this section include the power to require the fingerprints of:
(1) If the applicant is a limited partnership, each partner of the limited partnership;
(2) If the applicant is a limited liability company, each member of the limited liability
company;
(3) If the applicant is a corporation, each director and officer of the corporation;
(4) Any individual who holds a financial interest of 10 percent or more in the person ap-
plying for the license; and
(5) Any individual who is a partner, member, director or officer of a legal entity with a
financial interest in the person applying for the license.
Enrolled Senate Bill 1598 (SB 1598-A) Page 3
SECTION 9. For the purpose of requesting a state or nationwide criminal records check
under ORS 181A.195, the Oregon Liquor Control Commission may require the fingerprints
of any individual listed on an application submitted under ORS 475B.218.
SECTION 10. For the purpose of requesting a state or nationwide criminal records check
under ORS 181A.195, the Oregon Liquor Control Commission may require the fingerprints
of any individual listed on an application submitted under ORS 475B.235. The powers con-
ferred on the commission under this section include the power to require the fingerprints
of:
(1) If the applicant is a limited partnership, each partner of the limited partnership;
(2) If the applicant is a limited liability company, each member of the limited liability
company;
(3) If the applicant is a corporation, each director and officer of the corporation;
(4) Any individual who holds a financial interest of 10 percent or more in the person ap-
plying for the certificate; and
(5) Any individual who is a partner, member, director or officer of a legal entity with a
financial interest in the person applying for the certificate.
SECTION 11. For the purpose of requesting a state or nationwide criminal records check
under ORS 181A.195, the Oregon Liquor Control Commission may require the fingerprints
of any individual listed on an application submitted under ORS 475B.560. The powers con-
ferred on the commission under this section include the power to require the fingerprints
of:
(1) If the applicant is a limited partnership, each partner of the limited partnership;
(2) If the applicant is a limited liability company, each member of the limited liability
company;
(3) If the applicant is a corporation, each director and officer of the corporation;
(4) Any individual who holds a financial interest of 10 percent or more in the person ap-
plying for the license; and
(5) Any individual who is a partner, member, director or officer of a legal entity with a
financial interest in the person applying for the license.
SECTION 12. Sections 13 and 14 of this 2016 Act are added to and made a part of ORS
475B.400 to 475B.525.
SECTION 13. For the purpose of requesting a state or nationwide criminal records check
under ORS 181A.195, the Oregon Health Authority may require the fingerprints of any indi-
vidual listed on an application submitted under ORS 475B.435. The powers conferred on the
authority under this section include the power to require the fingerprints of:
(1) If the applicant is a limited partnership, each partner of the limited partnership;
(2) If the applicant is a limited liability company, each member of the limited liability
company;
(3) If the applicant is a corporation, each director and officer of the corporation;
(4) Any individual who holds a financial interest of 10 percent or more in the person ap-
plying for the license; and
(5) Any individual who is a partner, member, director or officer of a legal entity with a
financial interest in the person applying for the license.
SECTION 14. For the purpose of requesting a state or nationwide criminal records check
under ORS 181A.195, the Oregon Health Authority may require the fingerprints of any indi-
vidual listed on an application submitted under ORS 475B.450. The powers conferred on the
authority under this section include the power to require the fingerprints of:
(1) If the applicant is a limited partnership, each partner of the limited partnership;
(2) If the applicant is a limited liability company, each member of the limited liability
company;
(3) If the applicant is a corporation, each director and officer of the corporation;
Enrolled Senate Bill 1598 (SB 1598-A) Page 4
(4) Any individual who holds a financial interest of 10 percent or more in the person ap-
plying for the license; and
(5) Any individual who is a partner, member, director or officer of a legal entity with a
financial interest in the person applying for the license.
SECTION 15. If House Bill 4014 becomes law, sections 16, 17 and 18, chapter _, Oregon
Laws 2016 (Enrolled House Bill 4014), are repealed.
WORKER PERMITS
SECTION 16. ORS 475B.215 is amended to read:
475B.215. (1) An individual who performs work for or on behalf of a person who holds a license
under ORS 475B.070, 475B.090, 475B.100 or 475B.110 must have a valid permit issued by the Oregon
Liquor Control Commission under ORS 475B.218 if the individual participates in:
(a) The possession, production, propagation, processing, securing or selling of marijuana
items at the premises for which the license has been issued;
(b) The recording of the possession, production, propagation, processing, securing or selling
of marijuana items at the premises for which the license has been issued; or
(c) The verification of any document described in ORS 475B.170.
(2) A person who holds a license under ORS 475B.070, 475B.090, 475B.100 or 475B.110 must
verify that an individual has a valid permit issued under ORS 475B.218 before allowing the individ-
ual to perform any work described in subsection (1) of this section at the premises for which the
license has been issued.
SECTION 17. The amendments to ORS 475B.215 by section 16 of this 2016 Act apply to
individuals who have been hired by, or who have otherwise entered into an agreement to
perform work for or on behalf of, a person who holds a license under ORS 475B.070, 475B.090,
475B.100 or 475B.110 before, on or after the operative date specified in section 32 (1) of this
2016 Act.
MARIJUANA PROCESSING SITES REGULATED
UNDER OREGON MEDICAL MARIJUANA ACT
SECTION 18. If House Bill 4014 becomes law, ORS 475B.443, as amended by section 7, chapter
_, Oregon Laws 2016 (Enrolled House Bill 4014), is amended to read:
475B.443. [(1)] (1)(a) Except as provided in paragraph (b) of this subsection, a marijuana
processing site may not transfer medical cannabinoid products, cannabinoid concentrates or
cannabinoid extracts to a person other than another marijuana processing site or a medical
marijuana dispensary.
(b) A marijuana processing site may transfer a medical cannabinoid product, cannabinoid
concentrate or cannabinoid extract to a registry identification cardholder, or the designated
primary caregiver of a registry identification cardholder, provided that the registry identifi-
cation cardholder or designated primary caregiver provides the marijuana processing site
with the marijuana to be processed into the medical cannabinoid product, cannabinoid con-
centrate or cannabinoid extract and the marijuana processing site receives no compensation
for the transfer.
(c) A registry identification cardholder, or the designated primary caregiver of a registry
identification cardholder, may reimburse a marijuana processing site for all costs associated
with the processing of marijuana for the registry identification cardholder.
(2) A person other than a marijuana processing site may not transfer medical cannabinoid pro-
ducts, cannabinoid concentrates or cannabinoid extracts to a medical marijuana dispensary.
MARIJUANA PRODUCTION REPORTING
UNDER THE OREGON MEDICAL MARIJUANA ACT
Enrolled Senate Bill 1598 (SB 1598-A) Page 5
SECTION 19. Section 20 of this 2016 Act is added to and made a part of ORS 475B.400 to
475B.525.
SECTION 20. (1) Notwithstanding ORS 475B.423 (2), a person designated to produce
marijuana by a registry identification cardholder may delegate the person's duty to submit
to the Oregon Health Authority the information described in ORS 475B.423 to another person
designated to produce marijuana by a registry identification cardholder if the marijuana grow
sites for which the persons are required to submit the information are located at the same
address.
(2) A person to whom the duty described in subsection (1) of this section is delegated
must inform the authority of the delegation in a form and manner prescribed by the au-
thority.
(3) In adopting rules prescribing the form and manner in which information is submitted
to the authority under ORS 475B.423, the authority shall adopt rules that lessen the admin-
istrative burden on persons to whom the duty described in subsection (1) of this section is
delegated.
INSPECTIONS OF MARIJUANA GROW SITES
SECTION 20a. ORS 475B.490 is amended to read:
475B.490. (1) Registration under ORS 475B.400 to 475B.525 or possession of proof of registration
under ORS 475B.400 to 475B.525 does not constitute probable cause to search the person or property
of the registrant or otherwise subject the person or property of the registrant to inspection by a
government agency. However, the Oregon Health Authority may inspect [al the marijuana grow
site [registered under ORS 475B.420] of a person designated to produce marijuana by a registry
identification cardholder, a marijuana processing site registered under ORS 475B.435, or a medical
marijuana dispensary registered under ORS 475B.450, at any reasonable time to determine whether
the person responsible for the marijuana grow site, the person responsible for the marijuana proc-
essing site, or the person responsible for the medical marijuana dispensary, is in compliance with
ORS 475B.400 to 475B.525 and rules adopted under ORS 475B.400 to 475B.525.
(2) Any property interest possessed, owned or used in connection with the medical use of
marijuana or acts incidental to the medical use of marijuana that has been seized by state or local
law enforcement officers may not be harmed, neglected, injured or destroyed while in the possession
of a law enforcement agency, except that a law enforcement agency has no responsibility to main-
tain live marijuana plants lawfully seized. Such property interest may not be forfeited under any
provision of law providing for the forfeiture of property, except pursuant to a sentence imposed after
conviction of a criminal offense. Marijuana and equipment or paraphernalia used to produce, process
or administer marijuana that was seized by a law enforcement officer shall be returned immediately
if the district attorney in whose county the property was seized, or the district attorney's designee,
determines that the person from whom the marijuana, equipment or paraphernalia was seized is
entitled to the protections provided by ORS 475B.400 to 475B.525. The determination may be evi-
denced by a decision not to prosecute, the dismissal of charges or acquittal.
MEDICAL MARIJUANA DISPENSARIES
ORGANIZED AS NONPROFIT CORPORATIONS
SECTION 21. Section 22 of this 2016 Act is added to and made a part of ORS 475B.400 to
475B.525.
SECTION 22. (1) In addition to the powers granted nonprofit corporations under ORS
65.077 and 65.081, a medical marijuana dispensary that is owned by a nonprofit corporation
organized under ORS chapter 65 may receive by gift, devise or bequest:
(a) Usable marijuana, immature marijuana plants and seeds from registry identification
cardholders, designated primary caregivers, persons responsible for marijuana grow sites,
Enrolled Senate Bill 1598 (SB 1598-A) Page 6
persons who hold a license under ORS 475B.070 and persons who hold a certificate under ORS
475B.235; and
(b) Medical cannabinoid products, cannabinoid concentrates and cannabinoid extracts
from persons responsible for marijuana processing sites, persons who hold a license under
ORS 475B.090 and persons who hold a certificate under ORS 475B.235.
(2) If a registry identification cardholder's annual income is at or below the federal pov-
erty guidelines, a medical marijuana dispensary that is owned by a nonprofit corporation
organized under ORS chapter 65 shall dispense usable marijuana, immature marijuana
plants, seeds, medical cannabinoid products, cannabinoid concentrates and cannabinoid ex-
tracts to that registry identification cardholder or the designated primary caregiver of that
registry identification cardholder free of charge or at a discounted price.
(3) The Oregon Health Authority shall adopt rules necessary to implement this section.
SECTION 23. ORS 475B.160 is amended to read:
475B.160. (1) Except as provided in section 22 of this 2016 Act, a marijuana producer,
marijuana processor or marijuana wholesaler may deliver marijuana items only to or on a
[licensed] premises.
(2) A [licensed] premises may receive marijuana items only from a marijuana producer,
marijuana processor or marijuana wholesaler for whom a premises has been licensed by the Oregon
Liquor Control Commission.
(3) The sale of marijuana items by a marijuana retailer that holds a license issued under ORS
475B.110 must be restricted to the premises described in the license, but deliveries may be made by
the marijuana retailer to consumers pursuant to a bona fide order received at the [licensed] premises
prior to delivery.
SECTION 24. ORS 475B.235 is amended to read:
475B.235. (1) The Oregon Liquor Control Commission, in consultation with the Oregon Health
Authority and the State Department of Agriculture, shall establish a program for the purpose of
identifying and certifying private and public researchers of cannabis.
(2)(a) The authority shall assist the commission in identifying candidates for certification under
this section with respect to potential medical research.
(b) The department shall assist the commission in identifying candidates for certification under
this section with respect to potential agricultural research.
(3) Subject to subsection (4) of this section, the commission shall adopt by rule or order:
(a) Qualifications for certification under this section;
(b) The term of a certificate issued under this section;
(c) Processes for applying for, receiving and renewing a certificate under this section;
(d) Procedures for tracking marijuana, usable marijuana, cannabinoid products, cannabinoid
concentrates and cannabinoid extracts received by and disposed or otherwise made use of by a
person certified under this section; and
(e) Procedures for disposing or otherwise making use of marijuana, usable marijuana,
cannabinoid products, cannabinoid concentrates and cannabinoid extracts.
(4) In establishing qualifications under subsection (3) of this section, the commission shall con-
sider the following:
(a) A research applicant's access to funding and the
(b) The overall benefit of an applicant's proposed
to public health and safety; and
(c) Legal barriers to conducting the proposed
the proposed research.
(5) In adopting procedures under subsection (3)(d) and (e) of this section with respect to
making use of marijuana, usable marijuana, cannabinoid products, cannabinoid concentrates
and cannabinoid extracts, the commission shall also adopt procedures by which a person
certified under this section may give, devise or bequest usable marijuana, immature
marijuana plants, seeds, cannabinoid products, cannabinoid concentrates and cannabinoid
overall cost of the proposed research;
research to this state's cannabis industry
or
research or legal risks associated with conducting
Enrolled Senate Bill 1598 (SB 1598-A) Page 7
extracts to a medical marijuana dispensary registered with the authority under ORS 475B.450
and owned by a nonprofit corporation organized under ORS chapter 65 for purposes described
in section 22 of this 2016 Act.
[(5)] (6) A person certified under this section:
(a) May receive marijuana, usable marijuana, cannabinoid products, cannabinoid concentrates
and cannabinoid extracts from a licensee or a registrant under ORS 475B.400 to 475B.525; and
(b) May not sell or otherwise transfer marijuana, usable marijuana, cannabinoid products,
cannabinoid concentrates or cannabinoid extracts to any other person, except as provided in [rules
adopted by the commission under subsection (3)(e) of] this section and rules adopted by the com-
mission under this section.
[(6)] (7) Except as otherwise provided by the commission by rule, rules adopted by the commis-
sion for the purpose of administering and enforcing ORS 475B.010 to 475B.395 with respect to
licensees and licensee representatives apply to persons certified under this section and persons em-
ployed by or who otherwise perform work for persons certified under this section.
[(7)] (8) A person who is certified under this section, and an employee of or other person who
performs work for a person certified under this section, is exempt from the criminal laws of this
state for possession, delivery or manufacture of marijuana, aiding and abetting another in the pos-
session, delivery and manufacture of marijuana, or any other criminal offense in which possession,
delivery or manufacture of marijuana is an element, while performing activities related to conduct-
ing research as described in this section.
RESEARCH PROPOSALS
SECTION 25. The Oregon Health Authority shall solicit proposals through a competitive
process for the purpose of choosing one or more entities to conduct research for the purpose
of developing public health and safety standards for consumers of marijuana and
marijuana -derived products.
EXPUNGEMENT
SECTION 26. When a person convicted of a marijuana offense based on conduct that
occurred before the effective date of chapter _, Oregon Laws 2016 (Enrolled House Bill
4014), files a motion for a court order setting aside the conviction pursuant to ORS 137.225,
the court shall consider the offense to be classified under ORS 161.535 or 161.555 as if the
conduct occurred on or after the effective date of chapter _, Oregon Laws 2016 (Enrolled
House Bill 4014), or if the offense is no longer a crime, the court shall consider the offense
to be a Class C misdemeanor, when determining if the person is eligible for the order.
TECHNICAL AMENDMENTS
SECTION 27. If House Bill 4014 becomes law, ORS 475B.245, as amended by section 36, chapter
_, Oregon Laws 2016 (Enrolled House Bill 4014), is amended to read:
475B.245. ORS 475B.025, 475B.030, 475B.033, 475B.035, 475B.040, 475B.045, 475B.050, 475B.055,
4758.060, 475B.063, 475B.065, 475B.068, 475B.070, 475B.075, [475B.080,] 475B.090, 475B.100, 475B.110,
475B.115, 475B.125, 475B.130, 475B.135, 475B.140, 475B.145, 475B.150, 475B.160, 475B.165, 475B.170,
475B.180, 475B.190, 475B.195, 475B.200, 475B.205, 475B.210, 475B.215, 475B.218, 475B.230, 475B.233,
475B.235, 475B.240, 475B.325, 475B.330, 475B.335, 475B.340, 475B.345, 475B.350, 475B.353, 475B.355,
475B.358, 475B.360, 475B.365, 475B.370 and 475B.373 do not apply:
(1) To the production or storage of homegrown marijuana at a household by one or more persons
21 years of age and older, if the total amount of homegrown marijuana at the household does not
exceed four marijuana plants at any time.
Enrolled Senate Bill 1598 (SB 1598-A) Page 8
(2) To the possession or storage of usable marijuana items at a household by one or more per-
sons 21 years of age or older, if the total amount of usable marijuana at the household does not
exceed eight ounces of usable marijuana at any time.
(3) To the making, processing, possession or storage of cannabinoid products at a household by
one or more persons 21 years of age and older, if the total amount of cannabinoid products at the
household does not exceed 16 ounces in solid form at any time.
(4) To the making, processing, possession or storage of cannabinoid products at a household by
one or more persons 21 years of age and older, if the total amount of cannabinoid products at the
household does not exceed 72 ounces in liquid form at any time.
(5) To the making, processing, possession or storage of cannabinoid concentrates at a household
by one or more persons 21 years of age or older, if the total amount of cannabinoid concentrates
at the household does not exceed 16 ounces at any time.
(6) To the possession of cannabinoid extracts at a household by one or more persons 21 years
of age or older, if the cannabinoid extracts were purchased from a marijuana retailer that holds a
license under ORS 475B.110, or transferred by a medical marijuana dispensary registered by the
Oregon Health Authority under ORS 475B.450, and the total amount of cannabinoid extracts at the
household does not exceed one ounce at any time.
(7) To the delivery of not more than one ounce of usable marijuana at a time by a person 21
years of age or older to another person 21 years of age or older for noncommercial purposes.
(8) To the delivery of not more than 16 ounces of cannabinoid products in solid form at a time
by a person 21 years of age or older to another person 21 years of age or older for noncommercial
purposes.
(9) To the delivery of not more than 72 ounces of cannabinoid products in liquid form at a time
by a person 21 years of age or older to another person 21 years of age or older for noncommercial
purposes.
(10) To the delivery of not more than 16 ounces of cannabinoid concentrates at a time by a
person 21 years of age or older to another person 21 years of age or older for noncommercial pur-
poses.
SECTION 28. If House Bill 4014 becomes law, section 79, chapter _, Oregon Laws 2016 (En-
rolled House Bill 4014), is amended to read:
Sec. 79. (1) Sections 14, 15 [to 18], 21, 22, 24, 25, 30, 33 to 35, 40, 41, 47 to 53f, 69 and 71 to 75
of this 2016 Act, the amendments to statutes and session law by sections 1 to 13, 19, 20, 23, [26,
27,1 31, 32, 36 to 39, 42 to 46 and 54 to 68 of this 2016 Act and the repeal of statutes and session
law by sections 76 and 77 of this 2016 Act become operative on March 1, 2016.
(2) The Oregon Liquor Control Commission, Oregon Health Authority and Department of Re-
venue may take any action before the operative date specified in subsection (1) of this section that
is necessary to enable the commission, authority or department to exercise, on and after the oper-
ative date specified in subsection (1) of this section, all the duties, powers and functions conferred
on the commission, authority or department by sections 14, 15 [to 18], 21, 22, 24, 25, 30, 33 to 35,
40, 41, 47 to 53f, 69 and 71 to 75 of this 2016 Act, the amendments to statutes and session law by
sections 1 to 13, 19, 20, 23, [26, 27,] 31, 32, 36 to 39, 42 to 46 and 54 to 68 of this 2016 Act and the
repeal of statutes and session law by sections 76 and 77 of this 2016 Act.
SECTION 29. If Senate Bill 1511 becomes law, sections 16, 17, 18 (amending ORS
475B.345), 19 (amending ORS 475B.730) and 20 (amending ORS 475B.750), chapter , Oregon
Laws 2016 (Enrolled Senate Bill 1511), are repealed.
SECTION 30. If House Bill 4014 becomes law, sections 26 (amending ORS 475B.705), 27
(amending ORS 475B.710), 28 (amending ORS 316.680), 28a (amending ORS 316.680), 29 and 67
(amending ORS 475B.375) chapter _, Oregon Laws 2016 (Enrolled House Bill 4014), are re-
pealed.
REPORT
Enrolled Senate Bill 1598 (SB 1598-A) Page 9
SECTION 31. (1) The Oregon Health Authority shall study methods by which medical
marijuana dispensaries may dispense usable marijuana, immature marijuana plants, seeds,
medical cannabinoid products, cannabinoid concentrates and cannabinoid extracts remotely
in areas of this state where individuals who hold a registry identification card issued under
ORS 475B.415 do not have access to a medical marijuana dispensary.
(2) On or before January 1, 2017, the Oregon Health Authority shall report the
authority's findings under subsection (1) of this section to the interim legislative committees
related to health, and any interim legislative committee specifically related to the regulation
of medical marijuana or marijuana -derived medical products. The report shall be made in the
manner provided by ORS 192.245 and may include recommendations for legislation.
OPERATIVE DATES
SECTION 31a. The amendments to ORS 475B.490 by section 20a of this 2016 Act become
operative on March 1, 2016.
SECTION 32. (1) The amendments to ORS 475B.215 by section 16 of this 2016 Act become
operative on July 1, 2016.
(2) Sections 21 and 22 of this 2016 Act and the amendments to ORS 475B.160 and 475B.235
by sections 23 and 24 of this 2016 Act become operative on January 1, 2017.
(3) The Oregon Liquor Control Commission and the Oregon Health Authority may take
any action before the operative date specified in subsection (1) or (2) of this section, as ap-
plicable, that is necessary to enable the commission or authority to exercise, on and after
the operative date specified in subsection (1) or (2) of this section, as applicable, all the du-
ties, powers and functions conferred on the commission by the amendments to ORS 475B.215
by section 16 of this 2016 Act or conferred on the authority and the commission by sections
21 and 22 of this 2016 Act and the amendments to ORS 475B.160 and 475B.235 by sections 23
and 24 of this 2016 Act.
UNIT CAPTIONS
SECTION 33. The unit captions used in this 2016 Act are provided only for the conven-
ience of the reader and do not become part of the statutory law of this state or express any
legislative intent in the enactment of this 2016 Act.
EMERGENCY CLAUSE
SECTION 34. This 2016 Act being necessary for the immediate preservation of the public
peace, health and safety, an emergency is declared to exist, and this 2016 Act takes effect
on its passage.
Enrolled Senate Bill 1598 (SB 1598-A) Page 10
Passed by Senate February 29, 2016 Received by Governor:
Lori L. Brocker, Secretary of Senate
Peter Courtney, President of Senate
Passed by House March 2, 2016
Tina Kotek, Speaker of House
M., , 2016
Approved:
M., , 2016
Kate Brown, Governor
Filed in Office of Secretary of State:
M,, , 2016
Jeanne P. Atkins, Secretary of State
Enrolled Senate Bill 1598 (SB 1598-A) Page 11
CITIZENS MOP
for ' n PronertyValues
Building Collaborative Painerships & Bridges
beh oil of Safe Dreg Policy
Focus -Marijuana
wyerv.profecioursocielyourg
Po
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by Shirley Morgan Volunteer Advocate kora Oregon
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https://www.youtube.com/watch?v=uTLLUKsbyaYSzfeature=voutu.be
vv-km.protectoursociety.org www.unwanted ot rows.com
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SECTION HEADINGS
WOM*#A.00V,1,V*.Vi.:.
44,.•
This weekly periodical helps teep you up-to-date with news in your State
and reveals hat N going on in other States and hround eh© world.
Special educational resources are ao provided when available. For
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istNiumd Monday, Wednoday, atul Ffiday*
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under the Fair Use Doctrine (17 U.S.C., section 107). The articles and information included here are not for sale or resale. Citizens for public safety,
quality of life, and property values is a grassroots volunteer community. https://www.law.cornell.edu/uscode/text/17/107
COLORADO
The Tenth Circuit issued its opinion in our marijuana case today, which I've attached to this
note.
• The court ruled that property owners who are subject to a persistent, foul odor due to
nearby commercial marijuana operations may sue under RICO.
• It also ruled that property owners may sue under RICO if nearby commercial
marijuana operations diminish the market value of the owners' property.
• The court's opinion provides a roadmap for bringing RICO claims against marijuana
businesses, and this is a m Or victory for efforts to protect property owners
from the marijuana industry. As we've discussed in the past, successful RICO plaintiffs
are entitled to recover their attorneys' fees from the defendants
The Tenth Circuit is the federal court of appeals with jurisdiction over Colorado, New
Mexico, Utah, Wyoming, Kansas, and Oklahoma, and the only court with authority to
overturn its decisions is the United States Supreme Court
Best regards,
Brian W. Barnes
Cooper & Kirk, PLLC
II. Safe Streets Alliance
In Safe Streets Alliance. the plaintiffs are Michael P. Reilly, Phillis Windy Hope
Reilly. and Safe Streets Alliance ("Safe Streets"). Safe Streets is a "nonprofit
organization devoted to reducing crime and illegal drug dealing," No. 16-1048, Aplt.
App. at 51,' "whose members are interested in law enforcennent issues, particularly the
enforcement of .federal law prohibiting, the cultivation. distribution. and possession of
marijuana," Icl, at 52, The Reillys are the only identified members of Safe Streets, and
neither they nor their interest group asserted class or other claims on behalf of any other
Coloradans. We address their RICO claims first and then turn to their preemption claims,
The RICO claims
The Reillys own a parcel of land in Pueblo County, Colorado that is part "of the
Meadows at Legacy Ranch, a development on the south side of Pickney- Road." Id. at 80,
Safe Streets- does not hold any property interest in that land, According, to the Reillys,
the land is a "beautiful rolling pasture with sweeping mountain vistas that include views
of Pike's Peak." Id. The '`Reillys do not live on their land." and the only known
structures there are "t vo agricultural buildings" of vague description. Id. However, the
The Reillys and Safe Streets filed two amended complaints. The First Amended
Complaint is the operative pleading with respect to their preemption claims. while the
Second Amended Complaint is relevant to their RICO claims, We refer to them as is
appropriate to our discussion of the specific issue under consideration.
10
Reillys "often visit" the property "on weekends with their children to ride horses, hike,
and visit ti -ith friends in the closely -knit neighborhood." Id.
The allegations
To the "west and immediately adjacent to the Reillysproperty" is 6480 Pickney
Road., id.,, the site of a recreational "marijuana grow" operating out of a newly constructed
building located "just a few feet from the Reillys' property line." No. 16-1266, Aplt.
App. at 129, The operation of the enteiprise and the resultant noxious odors emanating
from it are alleged to have caused harms of two general types.
First, the Reillys claim that the "publicly disclosed drug conspiracy" itself has
"injured the value of [their] property." Id. at 131. "People buy .lots at the Meadows at
Legacy Ranch because they want to keep horses or build homes in a pleasant residential
area, and the Reillys' land" allegedly "is less suitable for those uses due to the 6480
Pickney Road marijuana grow." Id. For example. "the large quantity of drugs at
marijuana grows" purportedly "makes them targets for theft. and a prospective buyer of
the Reillys' land would reasonably woiry that the 6480 Pickney Road marijuana grow
increases crime in the area." Id.
Second, the Reillys aver that "[s]ince construction of the facilitywas completed.
its operation has repeatedly caused a distinctiveand tuipleasant marijuana smell to waft
onto the Reillys' property, with the smell strongest on the portion of [their] property that
is closest to [the] marijmna cultivation facility." Id, at 130. "This noxious odor"
allegedly "makes the Reillys' property less suitable for recreational and residential
11
164043 Docurripm- 131!.1 1..)a1u tA510//2017
purposes, interferes with the Reillys' use and enjoyment of their property, and diminishes
the property's value." Id.
The Reillys thus contend that the recreational marijuana facility adjacent, to their
land has both :interfered with their present use and enjoyment of the land and caused a
diminution in its market value—e.g.., by subjecting the land to the operation's noxious
the puipose of cultivating marijuana at 6480 Pickney Road." Id.
1'
Alypen:atE. 1.)ocur,..,.?nr.. 3;;;,,,9 00/{i, [I701
Consequently. the Reillys allege that the Marijuana Growers are each subject to
civil liability under § 1964(c) for the injuries they have caused to the Reillys' property by
operating their association -in -fact enterprise, which by definition flouts the CSA, and
therefore violates RICO. See 18 U.S.C. § 1962(c). The Reillys note, for example, that
"[1]easing or maintaining property for the cultivation of marijuana is a crime under" the
CSA "ancl is racketeering activity" wider RICO. No, 16-1266, Aplt, App. at 119.
Likewise, "[d]ealing in marijuana is racketeering activity under RICO," as is
"conspir[ing] with racketeers by agreeing to assist them" in their unlawful endeavors. Id.
at 101. "And because RICO defines most violations of the CSA as 'racketeering
activity."' the Reillys assert, "any business engaged in the commercial cultivationand
sale of recreational marijuana is a. criminal enterprise for ptuposes of' RICO. Id. at 108
emissions and by commencing that criminal enterprise nearby.
In Counts I through VI of their Second Amended Complaint, the Reillys brought
civil RICO claims under § 1964(c) against a host of individuals and entities purportedly
affiliated with .hat neighboring marijuana enterprise. On appeal, the remaining
defendants to those claims are 6480 Pickney, LLC. Alternative Holistic Healing, LLC.
Camp Feel Good, LLC. Jason M. Licata, Joseph R. Licata. and Parker Walton. We refer
to them collectively as the "Marijuana Growers."
According to the Reillys. the Marijuana Growers "all understood and agreed
that
the property"- adjacent to the Reillys' land "would be used to grow recreational marijuana
for sale at Alternative Holistic Healing's Black Hawk store. a long other places." Id.
at 119. The Reillys therefore claim that 6480 Pickney, LLC and Alternative Holistic
Healing. LLC are each unlawful enterprises. In addition. the Reillys allege that the
Marijuana Growers "pooled their resources, knowledge, skills, and labor to achieve
through [an] enterprise efficiencies in the cultivation and distribution of marijuana that
none of them could have achieved individually," Id. at 126. On that basis. the Reillys
claim that the Marijuana Growers also formed a distinct "association -in -fact enterprise for
(citation omitted). They therefore claim that all those who "conduct or conspire to assist
such enterprises" are subject to "civil liability" under § 1964(c), such that the Marijuana
Growers are liable for harming the Reillys' property. Id.
In moving to dismiss, the Marijuana Growers argued that the "speculative injury
to" the Reillys' "property value" was no "proof of a concrete financial loss," and was
therefore insufficient "to allege an existing,. concrete, financial. injury," which, in their
view. is an. element of a § 1964(e) claim. Id. at 25. They also vaguely suggested that the
Reillys had not plausibly alleged that the 1\4arijuana Growers were engaged in a RICO
enterprise. Yet the Marijuana Growers also explicitly conceded that they each "agreed to
grow marijuana for sale' at 6480 Pickney Road, adjacent to the Reillys' land. Id. at 28.
13
The district court disnussed these RICO claims with prejudice, conducting that he
Reillys had not pled a plausible injmy to their property that \vas proximately caused by
the lylarijuana Growers' activities in violation of the CSA. The district court recognized
that the Reillys alleged a "noxious order [sic] -anat[es] from the" l\larijuana. Growers'
adjacent enterprise, which "permit[s] a reasonable inference that the value of their
property is negatively impacted." Id. at 207. Yet the district court rejected that argument
on the basis that the Reillys had "provide[d] no factual support to quantify or otherwise
substantiate their inchoate concerns as to the diminution in value of their property." Id.
The district court underscored the Reillys' puiported failure to plead tliat their
"land has been appraised for" less "than before the grow operation opened," Id. And the
district court remarked that the Reillys had "point[ed] to no concrete evidence (as
opposed to mere inchoate fears) that potential purchasers have expressed concern about
living near such a facility, much less declined to buy lots . nearby," Id. Continuing
that theme, the district court determined that the complaint was deficient because the
Reillys failed to "cite to any study or statistics that might demonstrate a causal
relationship between the operation of such businesses and decreased property values"
nearby. Id. According to the district court. the Reilly's therefore failed to make the
"showing of damages that are clear and definite" required for "RICO standing,"
counseling dismissal of their "wholly speculative" claims. Id. at 207-08.
The Reillys timely appealed, which is before us as No, 16-1266,4
Safe Streets is no longer appealing the dismissal of its RICO claims.
14
See further details of this case attached.
1. COLORADO Rico Marijuana Opinion ruling
WRITE ATTORNEY GENERAL JEFF SESSIONS
Jeff Sessions, US Attorney General Dept. of Justice
950 Pennsylvania Ave., NW Washington, DC 20530
202-514-2001
Please CALL THE WHITE HOUSE and encourage our President to enforce federal laws on drugs.
http://dailysignal.com/2017/02/27/how-trumps-doj-can-start-enforcing-federal-marijuana-law/
Citizens need to write to Congress and ask that federal pot laws be enforced
https://www.whitehouse.gov/contact#page
President Donald J. Trump
White House
1600 Pennsylvania Ave NW, Washington, DC 20500 • (202) 4564414 (202) 4564111
• Call between 9am and 4pm Standard time.
• You can also send an email directly to the White House at the below link:
https://www.whitehouse.gov/contact#page
Report Violations Outlined in Cole Memo to Your U.S. Attorney
On August 29, 2013, U. S. Deputy Attorney General James M. Cole issued a memorandum outlining how the Department of Justice will
enforce the federal Controlled Substances Act of 1970 regarding marijuana. He listed 8 points the federal government will act to prevent
if any of these points are violated in states that have legalized marijuana for medical and/or recreational use:
1. Preventing the distribution of marijuana to minors
2. Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels
3. Preventing the diversion of marijuana from states where it is legal under state law in some form to other states
4. Preventing state -authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or
other illegal activity
5. Preventing violence and the use of firearms in the cultivation and distribution of marijuana
6. Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use
7. Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by
marijuana production on public lands
8. Preventing marijuana possession or use on federal property
Citizens can report any violation of these 8 points in their states to their U.S. Attorney. Here are tools to help you:
Chick here for a simple Cole Memo Form to report the violation.
http://themarij uanareport. org/violations/
Click here to read the Cole Memo.
https://urldefense.proofpoint.com/v2/uri?u=http-3A www.defenseone.com ideas 2017 05 what-2Dwounded-
2Dveterans-2Dneed-2Dmedical-2Dmarijuana 138204 -3Foref-3DDefenseOneTCO-26utm-5Fcontent-3Dbuffera2e8f-
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2520-2D-2520Early-2520Bird-2520Brief&d=DQJGaQ&c=euGZstcaTDllvimEN8b7jXrwgOf-
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X82OhnYpOyAsCn3dEgl<rkFXvoPtQwNIJBJ61fORyM&e=
US Overdose deaths in the US
https://www. nvtimes.com/interactive/2016/01/07/us/drug-overdose-deaths-in-the-
us.html?em pos=small&emc=edit up 20170605&nl=upshot&nl art=1&nlid=53680581&ref=img&te=1& r=0
Currently 19 states and Congress remain in open legislative sessions, with Alaska, Florida, Kentucky and
Washington in special sessions. To date we are tracking 1,179 bills (34 federal bills and 1,145 state bills).
Click here to view the 2017 rnidiear_legislative trAckingaort,,
Of the 1,145 state bills, 574 are categorized as pro -drug and 571 as anti-drug bills. Already this year, we
have successfully defeated 310 pro -drug bills and passed 92 anti-drug bills!
Through Votility, our advocacy software, S.O.S. subscribers have taken action and sent more than 61,000
letters to lawmakers advocating for drug policies that address public health and safety concerns. These
advocacy efforts have had a direct result on the passage and defeat of state legislation; your voice is
making a difference!
• Drug decriminalization bills in Alabama,
Florida, Hawaii, Iowa, Maryland, Mississippi,
Nebraska, Oklahoma, Tennessee, Texas,
Virginia and Washington
en on
Trey en
• Enhancements to Prescription Drug Monitoring
Programs in Arkansas, Colorado, Florida,
Indiana and South Dakota
• Restrict current marijuana programs in
• Hemp or hemp expansion bills in Alaska, Iowa, Arkansas, Colorado and North Dakota
Missouri, South Dakota, Texas, Virginia and
West Virginia
• Create or expand current marijuana programs
in Arizona, Colorado, Florida, Hawaii, Indiana,
Kentucky, Maryland, Missouri, Minnesota,
Mississippi, Nebraska, Tennessee, Texas,
Virginia, Washington and Wyoming
• Degrade alcohol laws in Arizona, Florida
(vetoed by Governor), Maryland, New Mexico
and Oklahoma
• Marijuana legalization bills in Georgia, Hawaii,
Maryland, Missouri, Minnesota, Texas, Vermont
(vetoed by Governor), West Virginia and
Wyoming
• Establishment or enhancement to treatment
courts in Arkansas , Mississippi, New Jersey,
Texas and Virginia
• Regulate synthetics in Arkansas, Kentucky,
North Dakota, Oklahoma, Utah and Virginia
• Enhance activities to reduce opioid deaths in
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Maryland,Montana, Nebraska, South Dakota,
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Virginia
S.O.S. is a 501c(4) operating 100% on generous donations from our supporters. Please consider supporting
S.O.S. today. Your donations allow us to continue monitoring drug policy legislation at the state and federal
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Bed
Green
Grannie
CBD
ALASKA
Medical Marijuana State and Marijuana legalized
MOE re'
12 States Oil is derived from a strain of marijuana that's high in cannabinoid/CBD
-CBD Research only program
ARKANSAS -Passed Medical
Arkansas Ex
Leafly
•
e
in 20000-4QOOO....Medical Marijuana Patient Applications
LITTLE ROCK, Ark. (AP) — Arkansas officials are anticipating that between 20,000 and 40,000 people will ask for permission to obtain
medical ...
ARIZONA -passed medical failed on recreational
Medical marijuana cardholders grow new businesses
East Valley Tribune -5 hours ago
Ninety medical marijuana dispensaries were open in Arizona in 2015, ... and people's perceptions of
it are changing all the time," she said.
CALIFORNIA -passed medical and recreational (20151
Drug Policy Alliance And ACLU Of California Sue City Of Fontana To Uphold Rights
Granted By California's Marijuana Legalization Law
The Huffington Post • 23 hours ago
Monday, the Drug Policy Alliance and the ACLU of California filed a lawsuit against the City of Fontana challenging a city
ordinance that is ...
Monday, the Drug Policy Alliance and the ACLU of California filed a lawsuit against the City of
Fontana challenging a city ordinance that is intended to effectively prevent residents from enjoying
the rights granted to them by Proposition 64 (also known as the "Adult Use of Marijuana Act" or
"AUMA"). The Fontana ordinance makes it unreasonably difficult and expensive for residents to
cultivate marijuana at their private residence as Prop. 64 allows.
On November 8, 2016, the people of California voted in favor of Prop. 64, which allows adults 21 and
older to possess up to one ounce of marijuana and cultivate up to six marijuana plants inside their
private residence away from public view. While the new law allows cities to regulate indoor personal
cultivation, they must do so reasonably and cannot prohibit anyone outright from cultivating.
Shortly after the law took effect, several cities acted against the will of the voters and adopted
ordinances that are so restrictive they operate as a de facto ban on cultivation. And for some groups
of people, such as people with a prior felony drug conviction, it is an outright ban. In Fontana—where
Prop. 64 passed with 53.5 percent of the vote and with 52.5 percent in the surrounding San
Bernardino County—the Mayor and City Councilmembers even boasted that they wanted this
ordinance to be the most restrictive in the state and they hoped it would to deter people from
cultivating marijuana.
In addition to being unreasonable and in conflict with Prop. 64, the ordinance violates several state
constitutional rights. Among other problematic provisions, the ordinance requires residents to register
with the city, undergo a criminal background check, open their home to city officials for an inspection,
and pay an expensive fee before obtaining a permit that would allow them to grow marijuana plants in
their private home. If someone cultivates marijuana but fails to obtain the city permit they are subject
to a misdemeanor even though the conduct is legal under state law.
The Drug Policy Alliance's affiliated organization, Drug Policy Action, served as a co-chair of the
Prop. 64 campaign committee. DPA is committed to making sure the measure is implemented the
way that the voters of California intended.
The primary purpose of legalization is to reduce the criminalization of adults for using, possessing,
and cultivating marijuana. The overwhelming majority of states that have legalized the adult use of
marijuana have also legalized the personal cultivation of marijuana plants at a private residence.
Personal cultivation also gives consumers a legal alternative to retail marijuana, which cannot be
purchased in the state until 2018, and to marijuana in places where local governments legally choose
to ban marijuana businesses. (Medical patients, however, may continue to purchase medical
marijuana at dispensaries.)
City ordinances that are plainly intended to circumvent what state law now allows invite legal
challenges such as this one. Local governments cannot undermine or undo what their voters and
what the voters of California have embraced.
Joy Haviland is a staff attorney with the Drug Policy Alliance.
COLORADO -Passed medical and recreational
Medical marijuana patients turn to the courts to roll back home grow ...
Colorado Springs Independent -10 hours ago
Medical marijuana patients turn to the courts to roll back home grow ... from filing a lawsuit that
takes aim at any and all plant limits in the state.
After years of lobbying by veterans, Colorado adds PTSD as medical marijuana condition
The Connabist - 2 hours a.go
Post-traumatic stress disorder is now a qualifying condition for doctor -recommended medical marijuana in Colorado.
Gov. John Hickenlooper on Monday signed Senate Bill 17 into law.
John Hickenlooper Signs Law Making PTSD Official Medical Marijuana Condition
‘Ve ;tt ord -, 2:.2 minutes ago
Patients suffering from post-traumatic stress disorder can now apply for medical marijuana in Colorado, after Governor
John Hickenlooper signed SB17 into law on June 5. That means this state has finally caught up with 22 other states and
U.S ...
CONNETICUT
DELAWARE
110
FLORIDA -en would allow CBD -rich marijuana to be grown in those states -ATTEMPTED MEDI
in 2014, again in 2016 and passed
Lawmakers strike deal to address medical marijuana in special session
Miami Herald 2 hours )go
State lawmakers on Wednesday reached agreement on how to put medical marijuana - passed overwhelmingly by
voters in November - into effect in Florida.
Florida legislature still debating medical marijuana legislation
vACTV - 4 hours
(AP) -- Frustration about the Florida legislature's inability to agree on a framework for an amendment expanding medical
marijuana could build if it's not addressed at this week's special session. Gov. Rick Scott called the session that begins ...
http://www.wctv.ty/content/news/Gov-Scott-vetoes-funding-for-marijuana-research-426582901. htm l
Seminole -owned business strikes deal with marijuana -industry firm
Sun Sentinel pug) • 3 hours uq0
In a move that could have major implications for the medical marijuana industry, a Seminole -owned company is taking
the first step toward setting up marijuana -growing operations on Native American land.
Orlando Finalizes Where Medical Marijuana Retail Centers Can Go
vJho F - 3 hours 090
Orlando will have a maximum of seven marijuana dispensaries under the new zoning. That's one retail outlet for each
nursery approved under Florida's current medical marijuana program. Zoning wise, they would be treated the same as a
Walgreens or CVS.
Council will allow growing of medical marijuana in Cleveland ...
Miami Harald 5 hours ago
The city council has reversed Cleveland's moratorium on growing medical marijuana but is keeping bans on processing
marijuana into medical products and ...
Former Seminole leader to urge tribes toward medical marijuana ...
Miami Herold ald -- 19 hour; ago
Former Seminole tribal leader James E. Billie is partnering with a cannabis firm to help tribes establish medical marijuana
systems on tribal land.
Hillsborough commissioners approve cap on medical marijuana dispensaries
aa,fpahay,cum 1 hum r ago
In March, commissioners approved new rules for medical marijuana without any limit on dispensaries. The reversal
comes after an intense lobbying campaign by one state -approved grower, San Felasco Nurseries, whose associates met
more than 60 times ...
Miami township meeting to address medical marijuana
Bellefontaine Examiner -2 hours ago
Miami township meeting to address medical marijuana ... Eric Stewart said he sent out a
memorandum May 17 to all of the township trustees.
GEORGIA -CBD
HAWAlli-dispensaries through legislature
State's first medical marijuana dispensary to open Thursday — but it ...
Hawaii News Now -13 hours ago
When Hawaii's first medical marijuana dispensary opens its doors on ... All patients will have to go
through a metal detector at the door, then ...
LOUISIANA -no ONLY JUST PASSED A MEDICAL POT BILL SB143
Bill to protect medical marijuana usersfrom prosecution rnovestoHouse
The Daily Advertiser
BATON ROUGE — The House Judiciary Committee Monday favorably moved a bill to the full House that would exempt patients,
pharmacists and lab ...
MARYLAND-medicai CBD
MASSACHUTETTES
Pot pizza now offered at medical marijuana dispensary
CBS News - 1 how ago
A Massachusetts medical marijuana dispensary has created a new option for patients who don't want to smoke their
dose of pot or eat it in the form of sweets: pot pizza.
MAINE -SOUTH PORTLAND -LEGALIZED
MEXICO CITY
MICHIGAN
MINNESOTA
MISSISSIPPI -CBD
MISSOURI -No
MONTANA
CBD ATTEMPTING
NEW YORK
New York may legalize medical marijuana for menstrual cramps
AOL 2 hours ago
Last month, the New York Assembly's Health Committee passed an initiative to add dysmenorrhea-- severe period
cramps -- to the list of conditions ...
NEW JERSEY
NEW MEXICO
NEW HAMPSHIRE
NORTH CAROLINA -CBD
NORTH DAKOTA medical n
NEVADA -dispensaries
How Nevada's new marijuana laws will affect you
Reno Gazette Journal -16 hours ago
Starting in July, all marijuana — both medical and recreational — will be taxed 15 percent at
cultivation, and only recreational marijuana will be ...
Nevada's medical marijuana industry: legal pot can't happen soon enough
news3lv.com • 34 minutes ago
It's the mid-morning lull at Las Vegas ReLeaf. The quiet could be a memory when this dispensary starts selling
recreational pot. Nevada ...
NEW HAMPSHIRE
NEW YORK
01110 Attempting legalization Issue 3 Nov. 2015 Monopolies failed
NB523 Medical Pot bill driven by the legislature
Pastors sa the don't want weed sro., facilities here
Youngstown Vindicator
The pastors said at a press conference outside city hall that the state's decision to legalize medical marijuana will eventually lead to
the legalization of ...
YOUNGSTOWNA group of pastors said today they "strongly oppose" any marijuana growing facilities
in the city. The pastors said at a press conference outside city hall that the state's decision to legalize
medical marijuana will eventually lead to the legalization of recreational marijuana and that will have
devastating results for Youngstown.City council heard May 15 from five groups wanting to grow
medical marijuana in Youngstown.
The meeting was informational. The state will grant licenses, probably in September, to 24 growers
statewide."We have a great concern [medical marijuana] is leading to recreational marijuana," said
the Rev. Al Yanno, pastor of Metro Assembly of God on South Avenue.For the complete story, read
Tuesday's Vindicator and Vindy.com - See more at: htt•://www.vind .com/news/2017/'un/05/.astors-
say-they-dont-want-weed-growing-facilities/sthash.Mt730ia7.dpuf
OREGON -Measure 91 legalization 2014 and Medical m ri uana 1998
www.unwantedpotgrows.com
Marijuana farm plans overruled by Yamhill County in favor ...
OregonLive4 days ago
Plans for a half -acre marijuana farm in the rolling hills of Yamhill County are on hold in a fight that pits Oregon's new
legal agricultural crop against a ...
Plans for a half -acre marijuana farm in the rolling hills of Yamhill County are on hold in a fight that pits
Oregon's new legal agricultural crop against a valuable Willamette Valley industry.
Richard Wagner was acquiring the necessary paperwork to start growing about 1,000 pounds of marijuana
and then process it on his property when vineyard owners next door intervened. They appealed the tentative
approval of Yamhill County planners for the processing plant, saying the odor could affect their grapes.
On Thursday, the Yamhill County Board of Commissioners voted 2-1 to uphold the appeal.
Planning Director Ken Friday said he had attached 15 conditions to the approval of the site design review for
Wagner's operation-- many of which mirror the hoops wineries must jump through to grow and process
grapes on site, such as how outside lights must be angled and proof of water rights prior to opening.
Some were also specific to concerns brought up by neighbors, with the county planners limiting how much
marijuana can be processed on site each year and requiring odor mitigations so the funk of pot wouldn't waft
into nearby nostrils.
The two commissioners opposed to the farm said they think marijuana processing should be done in areas
within the city limits zoned for industrial uses, rather than in rural areas
"There's a lot of passion on both sides. It's hard sometimes when you have to separate that passion from the
facts," said Commissioner Richard Olsen, who as McMinnville mayor voted to allow processing in city limits.
He voted against Wagner, he said, because he's concerned about how much water the processing facility
might use and what could happen to the wastewater in an earthquake, he said.
Mary Starrett, the lone commissioner in support of the processing facility, said she doesn't want to apply
different standards to marijuana farms and wineries.
"It really is like having to pick and choose what products or what farm crops we're going to thumbs -up or
thumbs -down," Starrett said.
The Momtazi family, along with neighbors Harihara and Parvathy Mahesh, filed the appeal of the processing
facility. They also asked a Yamhill Circuit Court judge for a temporary restraining order on any work on the
farm, which was denied.
Marijuana farm next door to Yamhill County's prized vineyards sparks legal fight
The owners of two Yamhill County properties say they worry that a marijuana growing and processing
operation on land formerly used as horse and cow pasture will taint their wine -grape crops.
They say the smell from the marijuana harvest will ruin the taste of their grapes, which they sell to wine
makers. According to their lawsuit, the Momtazis already have lost one customer. They also fear Wagner
could grow 8,000 pounds of marijuana a year — a claim that Wagner says is much more than he expects.
The Momtazis have grown grapes for 18 years and own about 580 acres along Muddy Valley Road
southwest of McMinnville. They sell their grapes under the name Momtazi Vineyard and produce wine
under the label Maysara.
Wagner plans to convert a horse and cow pasture into a half -acre of outdoor marijuana fields. The seven -
acre property he bought for $682,000, with financial backing of his parents Steven and Mary Wagner of
Southwest Portland, includes a home and barn.
In court filings, Wagner said he hasn't started preparing the farm for growing marijuana yet or asked the
Oregon Liquor Control Commission for a license to cultivate and process pot.
Wagner and his parents declined to comment after the meeting, saying they were weighing their options on
how to proceed.
The county will issue its final order on June 22. At that point, Wagner could appeal to the state Land Use
Board of Appeals.
There, the county commissioners would have to choose whether to defend their decision or not. Friday said
that since this issue is uncharted territory, commissioners usually would advocate their position to the state.
There are about six operations similar to Wagner's already permitted in Yamhill County, Friday said.
Wagner's is the only one that has been appealed.
Katie Kulla, who grows produce and marijuana in the county, showed up in support of the farm. She was
"It's disappointing to see what appears to be a continuation of a historical misunderstanding of marijuana,"
Kulla said. She was upset by what she saw as a more powerful wine industry halting the progress of small
pot startups.
Find up-to-date information at the Committee Meeting Overview Page. NEXT MEETING DATE BELOW DESCHUTES
COUNTY COMMISSIONERS WILL BE THERE TO TESTIFY, BE SURE TO LISTEN
www.oregonlegislature.gov
http://oreg_on.granicus.cam/MediaPlayer.php?event id=4998
Oregon Legislature Gut and Stuffed HB2198 with -7 Amendments, below are some of the highlights.
Tuesday, June 6th Measure 91 Marijuana Regulation Joint
Committee
2017 Regular Session
joint Committee On Marijstana Regulation Foltow this Committee: t
Meeting Details 6/6/2017 5:00 PM, HR B 0
Meeting ivlaterials Recording L
)pen PDF Agenda Revision 0, Posted on 5131/2017 at 11:00 AM
00 PM, HR B
Public Hearing and Work Session
lB 2'1 97 Directs Oregon Liquor Control Commission to enter into agreement with
nongovernmental entity that conducts or funds research on cannabis and
cannabis -derived products.
Authorizes Oregon Liquor Control Commission to require cannabis -related
licensees, certificate holders and applicants for licenses and certificates to submit
information related to persons who hold financial interest in business operating or
to be operated under license or certificate.
House Bill 2197
Introduced and printed pursuant to House Rule 12.00. Presession filed (et the request. of Joint Interim Committee
on Marijuana Legalization)
SUMMARY
The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject
to consideration by the Legislative Assembly. It is an editor's brief statement of the essential features of the
measure as introduced.
Directs Oregon Liquor Control Coniinission to enter into agreement with nongovernmental en-
tity that conducts or funds research on cannabis and cannabis -derived products. Specifies terms of
agreement. Requires public dissemination of data, information, analysis and findings procured pur-
suant to research.
Takes effect on 91st day following adjournment sine die.
Senate Bill 56
Printed pursuant to Senate I:nteriin Rule 213.18 by order of the President of the Senate in conformance with pre-
session filing rules, indicating neither advocacy nor opposition on the part of the President (at the request.
of Governor Rate Brown for Oregon Liquor Control Commission)
SUMMARY
The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject
to consideration by the Legislative Assembly. It is an editor's brief statement of the essential features of the
measure as introduced.
Authorizes Oregon Liquor Control Commission to require cannabis -related licensees, certificate
holders and applicants for licenses and certificates to submit information related to persons who
hold financial interest in business operating or to be operated under license or certificate,
Declares emergency, effective on passage.
TESTIMONIES
Senator Ted Ferrioli
Co -Vice Chair
Joint Committee on Marijuana Regulation
900 Court Street, NE 5-323
Salem, Oregon 97301
Re: Tribal Cannabis Tax Equity Bill
Dear Senator Ferrioli:
Burns Paiute Tribe
100 Pasigo St
Bums, OR 97720
Phone (541)573-2088
Fax (541)573-2323
March 30, 2017
The Burns Paiute Tribe is writing to support the proposed Tribal Cannabis Tax Equity bill.
The bill equitably addresses omissions in the taxing scheme imposed by Ballot Measure
91 (as amended) which imposes a point of sale (retail) tax on all items sold within the
State market, While the State retail tax is clearly intended to benefit citizens statewide
and address issues of statewide concern or impact, the State tax wholly neglects to
recognize the nine federally recognized tribes in Oregon. While each of Oregon's tribes
are unique and have differing interests that are served or impacted by Oregon's
program, the Burns Paiute Tribe supports the proposed Tribal Cannabis Tax Equity bill
because it expressly recognizes tribal regulation of marijuana -related activities and
facilitates collection by Oregon's tribes of tax revenues associated with tribal regulation
of marijuana -related activities to address critical needs facing tribal communities. Key
components of the bill include the following:
• It recognizes tribal regulatory interests in marijuana -related activities associated
with the State marketplace;
• it equitably addresses tribes who opt into cannabis regulation in coordination
with the State program;
• It prevents the possibility of double taxation by tribes and the State of Oregon
which may harm the State marketplace and tribal economic and community
development;
It facilitates the collection of tribal taxes on tribally developed products to serve
important tribal governmental interests.
In summary, while Oregon's tribes have not all engaged in cannabis regulation or in the
cannabis Industry, the Burns Paiute Tribe believes that Tribal Cannabis Tax Equity bill
provides an equitable foundation to advance tribal interests as the State market and
tribal regulatory participation matures,
Joe DeLaRosa
Tribal Chairman
Burns Paiute Tribe
541.589.0405
Joe.delarosa@burnspaiute-nsn.gov
TESTIMONY OF EUGENE GREENE
CONFEDERATED TRIBES OF THE WARM SPRIT TGS RESERVATION
JOINT COMMITTEE ON MARIJUANA REGULATION
SENATE BILL 56
May 23, 2017
Good afternoon, Co -Chairs Burdick and Lininger and members of the Joint
Marijuana Regulation Conunittee. My name is Eugene "Austin" Greene and I am
the Chairmanofthe Confederated Tribes of Warm Springs Tribal Council.
The Confederated Tribes of the Warni Springs Reservation of Oregon supports
Senate Bill 56 with the -9 amendments—the "Tribal Cannabis Tax Equity Bill."
The amendments would correct an oversight in Ballot Measure 91, as amended, to
address the regulatory burdens imposed on tribes by the State of Oregon's legal
marijuana marketplace.
We have made progress in correcting Ballot. Measure 91's omission of tribes. In
2016, the legislature passed House Bill 4014 which authorized the Governor to
enter into intergovernmental agreements with tribes to address the coordination
and enforcement of marijuana -related businesses licensed by tribes to conduct
business on tribal trust lands. Warm Springs has since finalized an IGA with the
State of Oregon and is advancing the licensing and development of a tribal
membership approved cannabis enterprise. The Tribes' referendum passed with
86% of the vote, reflecting the dire need for economic development in our
community facing very high unemployment. Our economy has only worsened
after the closure of our Warm Springs lumber mill last year, after 50 years of
operation.
The State laws also impose a retail tax on all items sold at State retail stores and
then map out in detail how that tax is allocated. This allocation wholly omits
Oregon tribes, even though the State program impacts tribes in a number of ways,
including public safety, public health and education. For example,
• Warm Springs provides direct mental health, alcoholism and drug services
and prevention and intervention programs to its membership and others
residing on the Reservation. Jefferson County and Wasco County provide
only de minimis services for members living on the Reservation. The
legalization of marijuana in areas surrounding the Tribe's reservation will
impact the nature and extent of services on the Reservation.
• In addition, the Tribe provides direct law enforcement services on the Warm
Springs Reservation. Highway 26 is a High Incident Drug Activity Corridor
WI00.016(a)`+BLANK Norma(.doc
and is a major highway between western Oregon and localities in Central
Oregon. Legalization of marijuana in areas surrounding the Tribe's
reservation will impact the nature and extent of law enforcement services on
the Reservation. Indeed, the Tribe has formed a civil regulatory
administrative agency that will, with the Warm Springs Tribal Police, work
hand in hand with the State of Oregon, the state and local police to properly
adininister and enforce applicable law on and off the Reservation and as
agreed to in an Intergovernmental Agreement between the Tribe and the
State of Oregon.
Because House Bill 4014 did not specifically address taxes, a new amendment is
necessary to address tax issues.
The -9 amendments do not address every interest of Oregon's tribes, which are
each unique, but is intended to equitably address taxation of marijuana items where
such items have been regulated and taxed by tribal nations. The bill proposes a
rebate of state taxes where a retailer is selling items that have been either produced
or processed, or both, by a tribally licensed business and which have been taxed by
the tribe. The amount of the rebate cannot exceed the tribal tax levied and is
proportionate to the tribal activity associated with the production processing of the
item.
The amendment does the following:
• It is consistent with well-established judicial precedent related to taxation of
on -reservation activities;
• It recognizes tribal reaulatory interests in marijuana -related activities
associated with the State marketplace;
• It equitably addresses tribes who opt into cannabis regulation in
coordination with the State program;
• It prevents the possibility of double taxation by tribes and the State of
Oregon which may hann the State marketplace and tribal economic and
community development, consistent with the policy of Oregon stated in the
Reservation Enterprise Zone Tax Credit first passed in 2001;
• It facilitates the collection of tribal taxes on tribally developed products to
serve important tribal governmental interests.
In summary, while Oregon's tribes have not all engaged in cannabis regulation or
in the cannabis industry, Warm Springs believes that a Tribal Cannabis Tax Equity
bill provides an equitable foundation to advance tribal interests as the State market
W100.01 G(a)tBLANK Nocival.doc
and tribal regulatory participation matures. Thank you for considering the -9
amendment to SB 56 and for the opportunity to address you today.
Confederated Tribes (ohe
Umatilla Indian Reservation
Board of Trustees
April 1 1, 2017
Senator Ted Ferrioli
Co -Vice Chair
Joint Committee on Marijuana Regulation
900 Court Street, NE, S-323
Salem, Oregon 97301
Re: Tribal Cannabis Tax Equity Bill
Dear Senator Fcrrioli:
46411 Timine Way
Pendleton, OR 97/301
www.cruir.org emit& bot(iitctuir.org
Phone 541-429-7030 Fax: 541-276-3095
On behalf of the Confederated Tribes of the Umatilla Indian Reservation (Umatilla Tribes), this
letter is to support the proposal tor a Tribal Cannabis Tax Equity hill. The intent of this letter is
to preserve our reserved rights and jurisdictions. We believe such a hill should support our
government -to -government relations, and our rights as one of the two treaty tribes in Oregon.
See the Treaty between the Walla Walla, Cayuses and Umatilla Tribes and Bands of Indians in
Washington and Oregon, 12 Stat. 945, June 9, 1855, ratified March 8, 1859.
We support solutions to equitably address omissions in the taxing scheme imposed by Ballot
Measure 91 (as amended). The measure imposes a point of sale (retail) tax on all items sold
within the State market. While the State retail tax is clearly intended to benefit citizens statewide
and address issues of statewide concern or impact, the State tax wholly neglects this tribe's
rights. We recognize that each of Oregon's tribes are unique and have differing interests that are
served or impacted by Oregon's program, The Umatilla Tribes would he interested in supporting
a Tribal Cannabis Tax Equity bill to expressly recognize tribal regulation of marijuana -related
activities and facilitates collection by Oregon's tribes of tax revenues associated with tribal
regulation of marijuana,related activities to address critical needs facing tribal communities.
Key components of such a bill would:
Recognize tribal regulatory and taxation interests in .marijuana -related activities
associated with the marketplace;
Equitably address tribes who opt into cannabis regulation in coordination with the State
program;
• Prevent the possibility of double taxation by tribes and the State of Oregon which may
harm the State marketplace and tribal economic and community development;
• Facilitate the collection of tribal taxes on tribally developed products to serve important
tribal governmental interests.
The Utnatilla Tribes would support a bill that achieves appropriate tax equity, regardless of
whether the Oregon's tribes have engaged in cannabis regulation or in the cannabis industry.
Treaty June 9, 1855 — Cayuse, "Umatilla and Walla Walla Tribes
Senator Ted Ferrioli - Tribal Cannabis Tax Equity Bill
April 10, 2017
Page 2 of 2
We look forward to a Tribal Cannabis Tax Equity bill as a foundation to advance tribal interests
as the State market and tribal regulatory participation matures.
Sincerely,
Gary Burke, Chairrrman
Board of Trustees
Les Helgeson
April 17, 2017
TO: Joint Committee on Marijuana Regulation
RE: SB 56 -23
Co -Chairs Burdick and Lininger, Members of the Committee,
For the record my name is Les Helgeson. My wife and I are the managers of Green Hills LLC. I
am here in support of the -23 amendment to SB 56.
Having the ability to produce concentrates as specified in the amendment would provide a
strong financial incentive for OMMP growers and others to enter the OLCC system. As such it
would necessarily have a positive impact on diversion, as well.
The cost of OLCC licensure is skewed against micro -producers, who are forced to pay a
disproportionate share of their investment into security systems. The production and sale of
concentrates from what is otherwise treated as waste material would help offset this disparity.
Furthermore, the costs involved with obtaining an OLCC processor license for the purposes of
producing concentrates is prohibitive. In addition to the $5,000 license itself, the costs of
meeting OSHA standards, etc. for safely processing extracts is not relevant to producing
concentrates, since safety issues are minimal to non-existent.
The process of making concentrates as per -23 is akin to trimming flower - in this case we
effectively "trim the trim" itself leaving intact trichomes and minimal plant material. These
trichomes are physically knocked off of the leafy trim and collected without the use of solvents
or other potentially unsafe procedures. It is relatively labor intensive and the process doesn't
lend itself to mass production as is the case with extracts and certain other concentrates.
Micro -producers also face disproportionate transportation costs since many if not most live in
rural parts of the state. Again, such a disparity would be compensated for if we could produce
high quality specialty products for the market that aren't otherwise readily available.
Finally, I would like to thank Rep. Gomberg and his staff for working on this amendment. The
goal is to incentivize the OLCC system while helping to minimize diversion and its impact upon
our small business environment.
Thank you and I would be happy to address any questions you may have.
Senator Ferrioli exhibit C7hld
posed,Loop La
Pvieeting Material 22
Senator Ferrioli 5123f2017 Joint Ccii.tirnitten Ori
Mariic:ar,o tieU;aiaor
http://codes.ohio.gov/orc/3796,031v1
3796.031 Closed-loop payment processing
system.
(A) The director of commerce may, in accordance with Chapter 119. of
the Revised Code, adopt rules that establish a closed-loop payment
processing system under which the state creates accounts to be used
only by registered patients and caregivers at licensed dispensaries as well
as by all license holders under this chapter. The system may include
record-keeping and accounting functions that identify all parties involved
in those transactions. The purpose of the system is to prevent all of the
following:
(1) Revenue from the sale of marijuana from going to criminal
enterprises, gangs, and cartels:
(2) The diversion of marijuana from a state where it is legal in some form
under that state's law to another state:
(3) The distribution of marijuana to minors;
(4) The use of state -authorized marijuana activity as a cover or pretext
for the trafficking of other illegal drugs or for other Illegal activity.
(8) The information recorded by the system shall be fully accessible to
the state board of pharmacy and all state and federal law enforcement
agencies, including the United States department of the treasury's
financial crimes enforcement network.
Added by 131st General Assembly File No. TBD, HB 523, §1, eff.
9/8/2016.
Neighbors object to Bend -area pot
farm
Possible traffic, odor and crime have residents worried
http://www. be nd bu I leti n.co m/Ioca lstate/deschutescou my/5115120-151/neigh bors-object-to-bend-a rea-pot-farm
A Must see video production by rural residents in Deschutes County
https://vimeo.com/209011858/cfb48d6677
PP17 no
firs . ti ppsng oie
re its Wegal and in shei�
Pot Farms Fighters Intervi3
R1991a0.Acad.
Pot Farms Fiohters Interview 5
1 Pot Farms Fighters Interview 5
CASE STUDY: 18600 Couch Market Rd, Bend, Oregon and Medical Marijuana Grow in Deschutes County,
using freight trucks as fencing and storage units. Laurence Dyer owner.
Many complaints have already been filed with Deschutes County Code enforcement.
http://dial.deschutes.org/Real/DevelopmentDocs/132081
4/2012015
Complaint
COMPLAINT
247 -15 -000118 -CE
V Doc nment
712472015
Complaint
Complaint
247 -C13244 -CE
3/28/2017
Complaint
COMPLAINT FORM
247 -16 -000009 -CE
View Document
3128/2017
Complaint
COMPLAINT FORM
247 -16 -000009 -CE
View DocuinEimt
4/1/2017
Complaint
Complaint
247 -16 -000496 -CE
View Cocurnent
1. The odor is so obnoxious we can't even sit on our own front deck.
2. Out of State investors (Washington, Montana, Colorado, Alabama, Florida, California, Arizona, Nevada) are
flooding into Oregon and setting up 300' x 700' compounds with 6' non see through fences with razor wire
on the top, increasing traffic with bully behaviors to neighbors, and blocking once beautiful views.
3. Out of State investors are preying upon vulnerable properties which have not sold for a long time, then they
are enticing elderly owners with large sums of cash down and getting them to carry the contract without
telling them that they are going to grow pot
4. Out of State and in state investors are buying up horse stables and turning them into pot grows.
5. Growers are setting up make shift green houses and blasting green house lights 24hours a day ruining
night skies 10' off property lines.
Puttin: up
ates with no turn around returns often pushing traffic into neighboring property drive ways
7. Putting up security cameras that monitor not just their properties, but the neighbors properties creating an
invasion of privacy
Neighbors have put up a metal blocking screen to protect their privacy
. Man properties are clear cuttin: all of the trees on the property
Over 200 trees were removed at this location
9. Along with clear cutting trees they are doing Illegal excavation trying to create ground water ponds to
water pot plants
10. Prison like fencing is being put up in rural farming neighborhoods.
0 GeauUlut paqu
It is being touted that Clackamas County land use regulations are being used as a model for other
counties, yet their land use regulations are the most liberal in the State and have opened up the door for
commercial marijuana growing in almost every zone in the County and the industry is taking over various
areas of the county. The County is allowing more than one commercial recreational marijuana license to
be used at one site address, meaning a property owner on a 4 acre parcel can have his own commercial
pot grow and then lease the rest of his land out to other commercial pot growers, filling the entire piece
of land with commercial pot grows turning them into industrialized pot grows in our rural farming
communities..
This is an EFU Exclusive Farm use area. h.ttp://www.clackamas.us/planning/marijuana.html
Example below:
http://growunits.com/
Proposal: Applicant proposes an outdoor marijuana production facility on 22.11 acres of=
zoned land. Grow area will be located within a greenhouse type building of about 40,000 square
feet. Total canopy is estimated to be around 39,000 square feet. Accessory buildings will be
developed for additional production processing, such as drying, trinuuing and starts. The subject
property is without natural resource encumbrance and is relatively flat.
This section is tracking a specific case study in Clackamas County Oregon, where over 29
commercial marijuana land use applications have been applied for since Ian. 4, 2016 with 98%
being for marijuana production.
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ar<aenay
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Ill 18 Al 2S ?0 08
98% Marijuana production Sites
Sandy 21
Canby 20
Clackamas
Oregon (Siy
West Linn 4
Estacada 1
Boring
Hubbard 2
Portland 4
Damascus 11
Eagle Creek 82
Aurora 7
Rhododendron 3
Welches 1
Colton 2
Beaverrre.ek 1^
Molaia 8
Mulina
Mihvaukie 8
ML Angel 3
Wilsonville 2
Woodburn 1
Scotts Mill 1
Sherwood 1
HISTORICAL VIEW: Oregon legalized marijuana in November of 2014 through a ballot initiative. In 2015 the
legislature redefined marijuana as an agricultural farm crop through HB3400 which means that
commercial marijuana can be grown and processed in all exclusive farm use areas without any neighbor
notification or conditional use permits. HB3400 also gave local jurisdictions 4 options since marijuana is
still a federally illegal drug operating by cash only.
1. LOCAL COUNTY AND CITY JURISDICTIONS COULD OPT OUT OF HAVING COMMERICAL POT
GROWS, PROCESSORS, WHOLESALERS, & RETAILERS IN THEIR COMMUNITY IF THEY VOTED
55% NO OR GREATER IN THE NOVEMBER 2014 ELECTION.
2. IF LOCAL COUNTY AND CITY JURISIDICTIONS GOT UNDER 55% THEY COULD SEND A REFERRAL
TO THE VOTERS IN NOVEMBER OF 2016 AND LET THEM DECIDE IF THEY WANTED TO OPT OUT
OF HAVING COMMERCIAL POT GROWS, PROCESESSING, WHOLSALING, RETAILING AS WELL AS
ANY ADDITIONAL MEDICAL MARIJUANA DISPENSARIES OR PROCESSING SITES.
3. LAND USE REGULATIONS, WHICH MEANS THAT COUNTIES AND CITIES WITH LIMITATIONS
FROM HB3400 CAN ESTABLISH THEIR OWN LAND USE REGULATIONS AND DECIDE WHAT ZONES,
WHAT MANNER, AND WHAT RESTRICTIONS THEY WOULD INCLUDE SUCH AS LOT SIZE,
REQUIRED SET BACKS, ODOR CONTROL, TRAFFIC CONTROL, USE OF ROAD EASEMENT
REQUIREMENTS, BUILDING REQUIREMENTS, INDOOR AND OUTDOOR GROW REQUIREMENTS,
ETC.
4. DO NOTHING AND LET IT GO TO THE STATE RULES.
• STATE RULES BASICALLY ALLOW COMMERCIAL POT TO BE GROWN IN ALL OF OREGON'S
EXCLUSIVE FARM USE AREAS WITHOUT ANY NEIGHBOR NOTIFICATION OR
CONDITIONAL USE PERMIT REQUIREMENTS.
Over 100 of the 241 cities and 19 of the 36 counties in Oregon have banned commercial
marijuana in their cities and counties.
13471 S. Leland Rd -Oregon City -Z0103 -16 -Commercial Marijuana Production
Owner of Property: Lulu Zhang 15130 SE Frye St., Happy Valley, Oregon 97086
Applicant proposed:
• 4 acre EFU parcel
• Leasing to 5 Asian LLC's
• Indoor marijuana production in a total of 9 new buildings.
• 6 new greenhouses 30' x 100' (3,000 sg. ft.) which in Clackamas County are considered indoor grows and require
only a 10' set back from property lines of neighbors in EFU, TBR, and AG Forest and 100' set back if it would have
been an outdoor grow.
• 3 new agriculture buildings are proposed
• The total square footage of all proposed grow and processing space is 33,360 square feet. This does not include
the estimated 10,000 sq.ft. that will be used to house 44 parking spaces. How many EFU farms actually factor in
44 parking spaces for their farm work?
• A new driveway is also proposed. The total length listed on the site plan is over 500 feet in length
• 44 parking spots
NEIGHBORS INSTALLED UNWANTED POT GROW SIGN TO OPPOSE THIS
INDUSTRIAL POT GROW NEXT TO THEIR HOME IN EXCLUSIVE FARM USE AREA IN CLACKAMAS
COUNTY, OREGON
Water Verification: They have all filed a marijuana producer exempt
water form and indicate that water will be met through rainwater collection (from the roof of the building) and recapturing
water from the internal A/C and dehumidifier equipment, which together shall be gathered and drained into storage tanks.
The storage tanks will then be used to deliver water to the internal rooms of the building. Estimated annual volume required
from this Source 78,000 gallons annually. Estimated annual volume required from this Source: 52,000 gallons annually.
5 mail boxes have been installed for one property since this site is being leased out to 5 Asian LLC's
Neighbors yard which one day they looked out over a beautiful pasture and a view of Mt. Hood,
now they look out over an 8' tall fence, a pole barn, and from their 2„d floor an outdoor pot grow. They have also had to invest
in the planting of 5 tall trees to help now block this view of this commercial/industrial marijuana operation because they have
destroyed their once beautiful view.
View from their
upstairs windows commercial/industrial pot grow in the middle of their rural residential farming area.
Neighbor wears Hazmat protection to illustrate the strong smell of skunky odor that is coming from this pot grow 10' off of her
pro . erty line and directly into their outside dining area.
WASTE MANAGEMENT ALLOWING 100 TONS OF MARIJUANA COMPOSTING ON PROPERTY
1L. \VaSte 1\'1anaaenlent. Marijuana shall be stored in a secured \Waste receptacle in the
possession of and under the control of the OLCC licensee.
Finding: Applicant stated that marijuana wasted will be stored inside the
production facility until it is sold to a processor it coi�Tcl
oste
io7tn comp- c e t am 'er H tonsc>t tient an
with DEQ's composting standards. The applicable standards of this Subsection are
outlined above as Conditions of Approval. This criterion can be met.
How and where will this composting debris be disposed of?
Currently in Washington State they are working on laws that do not allow the incineration of marijuana debris as
well some in Washington have been feeding it to livestock. This will not be allowed in Oregon according to OLCC.
PUBLIC HEALTH AND SAFETY: The Oregon Liquor Control Commission who licenses
commercial marijuana facilities requires running water and sanitary services for any employees who are working
on the property. When asked, OLCC noted that porta-potties meet their standards for providing sanitary needs. So
now imagine next to your rural home a series of port -a -potties lined up. This is NOT what Oregon voters, voted for.
!i(.t;tl Oiliii lt5 tfat< t 11t11iiiB(1B THE
11i3FA1=I TO THEIR t'613t113 SAFETY,
iUIPIOtUff.AN1PiisOPLR1Y'tf tilES
HAVE ifflilStf lfleMill
On Saturday 2-15-17 a man showed
Up at the neighbor's home indicating that
he had just spotted his bobcat at the pot
Grow next door at 13471 S. Leland Rd. which
Had been stolen. Police were called.
5/23/17 Unwantedpotgrow.com sign vandalized they sprayed off the UN and now the sign says
wantedpotgrows.com sign.
Has now again tried to apply for a commercial marijuana license.
6(2C 17 Z0280.17
hlarij;aFi, « 13,07 7. 1'.:3::v. OREGON iRNI<:i?' )
...i 1.%135>W;
+'Atone W.Initi
Related Con..
ti:Aamnonot mrormanon
AppYcaGpn tnlortna Wn
6&1! N4L
Turning a once quiet 19 acre pasture into an industrialized 54 proposed marijuana grow barns that are
leased out.
Pate received:
Application type:
Zone: E.....
viotation q: u
What isproposed7
goat is p oposed r
..�
Fite number:
._ Fee:
Name ofApplic nt;
Mailing address "`#.s."..../ T1i?.5......... ^�^
Gfry r v
SrY..i8.11 Sf�tc
.ApPlicantfs(serr(one). rgarowner DContort buyer
Name of contact person (Mother thEln applicant);
Mailing address of contact person: Nf?r.......
30 Marijuana Grow Barns requested January 1-446
n r i -� � s.
Land Use Application
Date received:
Application type:
Zone:
Violation tt:
_m1)-
-.L a ! J Lift /1 a,
EFIA
File number:
Fee:
CPO/Hamlet:
hat is proposed
Name of applicant:
Malling address:
city
Applicant Is NO E a
°pr.r0 Corrtaxct purchaser ❑Agent
purchaser
24 more marijuana grow barns being requested May 5-1 _ 7
=,ua,a_IC' xxo.
n'ea1,,,,an a: 1,4 XxgH�:n:iiL vm1xl0
ow. x UM: 01 of 16 1tt+1,6, L.et No: 0 300 s6
Tax U:t W. M.501 lav LN 40: 06i:L
t
Now proposing an additional 24 marijuana grow barns turning this 19 acre EFU grow site into a
54 industrialized marijuana grow barns.
PENNSYLVANNIA--•25 growers -no smoke -no grow on own -50 dispensaries
RHODE ISLAND
SOUTH CAROLINA -no
SOUTH DAKOTA
TEKAS-CBD LEGALIZES POT OILS FOR EPILEPSY 6-1-15
TENNESSEE -CBD
UTAH -CBD
VERMONT
Will VA chief be voice of reason on climate chae and rr edical Q a `°uala a in Trump administration?
Washington Post
He cautiously signaled a willingness to advance medical marijuana for ... the Trump administration to make cannabis available for
medical research.... be denied care for all appropriate conditions including medical, behavioral and ...
W SCO S -CBD
WASHINGTON -LEGALIZED -1502
AFGANISTAN
AFRICA
ALBANIE
ANTIGUA
ARGENTINA legalizes medical ijn na
AUSTRALIA
AUSTRIA medical marijuana.....
BAHAMA'S
BRAZIL
BERMUDA
BELGIUM
BELISE
BOSTWANIA
BULGARIA
CANADA -dispensaries Projected to legalize in 2018
Uruguay sets path for Canada on marijuana legalization within ...
Global News 24 minutes ago
Ambassador Martin Vidal credits his country, the first to legalize recreational cannabis at a national level, as something of
a trailblazer for countries like Canada ...
Hydropothecary says a former employee sprayed cannabis plants ...
Ottawa Citizen -18 hours ago
A medical marijuana grower in Gatineau says it has found the source of a banned pesticide that
tainted its products, causing the company to ...
Colorado's pot edibles business gives food for thought: Wells
Toronto Star -1 hour ago
(Colorado initially allowed only those companies that were already active medical marijuana licence
holders to enter the recreational side of ...
CHINA
CHILI
COSTA RICA
COLUMBIA
COPENHAGEN
CROATIA
CUBA
CZECH REPUBLIC
DOMENICAN REPUBLIC
DELHI
CUTCH
EGYPT
FRANCE
FIGI
FINLAND
GERMANY
GREECE
GUAM -MEDICAL MARIJUANA
QUATAMALEA
GUYANA
HAITI
HONDURAS
HOLLAND
HUNGARY
IRAN
ISRAEL
ITALY
INDIA
INDONESIA
IRELAND
ICELAND
JAPAN
JAMAICA -LEGISLATURE APPROVED MEDICAL MARIJUANA
LEBANNON
MAYLAYSIA
MACEDONIA
MANILA
MEXICO
MORROCCO
NETHERLANDS
NEW ZEALAND
NIGERIA
NORWEIGH
NOVA SCOTIA
PAPA NEW GUINEA
PERU
PRAQUE
PHILLIPINES
PUERTO RICO -LEGALIZED
PORTUGAL
POLLAND
RUSSIA
ROMANIA
SAN JUAN
SAIPAN
SCOTLAND
SIR LANKA
SPAIN
SWEDEN
SWITERZERLAND
SYRIA
TELEVIV
THAILAND
TRINIDAD
TIWAIAN
TURKEY
UNITED KINGDOM
IMUQUAY-LEcAuzEn MARIJUANA
Uruguay sets path for Canada on marijuana legalization within ...
Global News • 24 minutes ago
Ambassador Martin Vidal credits his country, the first to legalize recreational cannabis at a national level, as something of
a trailblazer for countries like Canada ...
VENEZUELA
VIETNAM
VIRGIN ISLANDS
WHALES
YUGOSLAVIA
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Public Safety
http://www. kptv.com/story/32720273/nearly-12000-marijuana-plants-found-at-suspected-cartel-grow-site-in-s-Oregon?autostart=true
http://www.oregonlive.com/marijuana/index.ssf/2016/07/pot dispenary is target in ore.html
http://www. usatoday.com/story/newshation-now/2016/06/27/3-d ie-shooti ng-orego n -I egal-pot-grow-suspect-ca ptu red/86451942/
http://www.statesmanjournal.com/story/news/crime/2016/06/29/9-million-illegal-marijuana-grow-near-willamette-river-raided/86516650/
https://www.youtube.com/watch?v=BApEKGUpcXs Weed Documentary High School 2016
http://www.oregonlive.com/portland/index.ssf/2015/04/suspected gunman in portland d.html
http://www.katu.com/news/local/Woman-dies-after-being-h it -by -driver -smoking -pot -in -Gresham -police -say -330922082. html
http://www, kgw.com/story/news/investigation s/2015/06/01/oregon-hash-oi I-explosions/28312933/
https://www.youtube.com/watch?v=IFNe KZhPZw http://www.cbsnews.com/news/man-fatally-shoots-himself-after-eating-5-marijuana-candies/
http://www.kpty.com/story/30437629/pacific-power-legal-indoor-pot-growing-operations-causing-power-outages#ixzz3gZogvyJv
http://www.oregonlive.corn/portland/index.ssf/2015/12/driver was high on marijuana w.html
http://registerguard.comjrg/news/local/33860628-75/hash-oil-explosion-apparently-caused-veneta-area-house-fire-on-monday-fire-official-
says.html.csp http://www.oregonlive.com/portland/index.ssf/2015/12/lakeisha holloway driver in fa.html
http://www.masslive.com/politics/index.ssf/2016/02/six takeaways from colorado co.html
http://www.wweek.com/2016/02/10/the-dea-investigates-cannabis-oil-company-true-north-extracts/
http://www.bendbulletin.com/localstate/3825700-151/madras-dispensary-burglarized?referrer=carousel?
http://www.oregonlive.comjmarijuana/index.ssf/2016/03/butane hash oil explosion rock.html
http://www.foxnews.com/us/2016/04/24/sheriff-well-planned-and-methodical-execution-Ohio-family.html
http://www.ktvz.com/news/fire-destroys-home-in-alfa lfa-still-without-fi re-protection/39227080
http://kdvr.com/2016/12/28/csp-marijuana-may-have-been-contributing-factor-in-deadly-crash/
http://www.oregonlive.com/marijuana/index.ssf/2016/10/blast rocks legal marijuana bu.html
http://www.bendbulletin.com/localstate/4900148-151/hash-oil-lab-explodes-in-redmond-garage?referrer=fpblob
HTTP://KATU.COM/NEWS/LOCAL/POLICE-FIREFIGHTERS-FIND-ILLEGAL-MARIJUANA-BHO-OPERATION-IN-OREGON-CITY
http://www.oregonlive.com/marijuana/index.ssf/2017/01/burn victim in astoria explosi.html
http://koin.com/2016/07/05/john-kitzhabers-son-i n jured-i n -car -crash/
http://finance.yahoo.com/news/cartels-growing-marij uana-illegally-california-194700553.html
http://www. kptv.com/story/35241630/man-cha rged-with-reckless-ends ngering-after-hash-oil-la b -explodes -i n-beave rton-garage?autosta rt=true
Quality of life
http://www.oregonlive.com/marijuana/index.ssf/2015/10/marijuana use doubles so does.html#incart river home
http://www. katu.com/news/locaVClackamas-Cou nty-residents-hope-to-stop-unwanted-pot-grows-3 34457271.html
https://www,,youtube.com/watch?v=YUkxVy8Ewxw
Property Values
http://golocalpdx.crun/news/will-marijuana-grow-sites-affect-neighboring-property-values
http://www.golocalpdx.com/news
http://portlandtribune.com/cr/28-opinion/264469-136392-unwanted-marijuana-grows-we-can-smell-the-difference
http://www.seacoastonline.com/news/20170411/neighbors-of-york-medical-marijuana-facility-raise-odor-groundwater-lifestyle-issues
http://www.bendbulleti n.com/localstate/deschutescounty/5115120-151/neighbors-object-to-bend-area-pat-farm
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DATE:
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 June 28, 2017
FROM: Matt Martin, Community Development, 541-330-4620
TITLE OF AGENDA ITEM:
Public Hearing on (1) Text Amendment Including Map Modification for Urbanizable Area Zone
(Planning Division File Nos. 247-17-000191-TA/247-17-000194-ZC) and (2) Zone Change
PUBLIC HEARING ON THIS DATE?: Yes
BACKGROUND AND POLICY IMPLICATIONS:
The City of Bend, as the applicant, is proposing amendments to Titles 15, 17, 17A, 18, 19,
and 19A of the Deschutes County Code to:
Clarify applicability within the City of Bend UGB,
Change the zone designation for certain property to Urbanizable Area District, and
Establish criteria and standards for the Urbanizable Area District.
Under the current and revised JMA the City of Bend has planning and land use regulatory
authority responsible for processing land use applications including the proposed legislative
zone change and text amendments. As specified in the JMA, final action on legislative
changes remains vested with the Board.
The Bend City Council held a public hearing on June 7, 2017, to review similar changes to the
Bend Development Code and approved the amendments unanimously.
The Deschutes County Planning Commission reviewed the proposed amendments on June 8,
2017. The Commissions did not oppose the proposed amendments but they communicated
the importance of identifying a timeframe for developing lands within the UA zone.
FISCAL IMPLICATIONS: None
ATTENDANCE: Matthew Martin, Associate Planner; Pauline Hardie, City of Bend Senior
Planner
RECOMMENDATION & ACTION REQUESTED:
Open public hearing and receive testimony. At the conclusion of testimony, the Board can:
❑ Continue the hearing to a date certain;
❑ Close the hearing and leave the written record open to a date certain; or
❑ Close the hearing, and commence deliberations.
Packet Pg. 35
Community Development Department
Planning Division Building Safety Division Environmental Soils Division
P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
Phone: (541) 388-6575 Fax: (541) 385-1764
http://www.deschutes.org/cd
MEMORANDUM
TO: Deschutes County Board of Commissioners
FROM: Matthew Martin, Associate Planner
DATE: June 22, 2017
SUBJECT: Public Hearings RE: City of Bend Joint Management Agreement / Urban Holding Zone Change
and Text Amendments
The Board of County Commissioners (Board) will be conducting two public hearings scheduled for June 28. The
public hearings will review:
• Proposed amendments to the Joint Management Agreement (JMA) with the City of Bend;
• New urban holding zone for lands recently brought into the Urban Growth Boundary (UGB), but not yet
annexed; and
• Minor amendments to Deschutes County's Bend Urban Area Zoning, Sign and Subdivision ordinances to
add clarifying language and remove antiquated references.
JOINT MANAGEMENT AGREEMENT BACKGROUND
Oregon Revised Statutes (ORS) 190.010 enables local government to enter into agreements. Deschutes County
has JMAs with all four municipalities. The current Deschutes County / City of Bend JMA is intended to facilitate
the orderly and efficient development of land inside the UGB as well as Bend's Urban Area Reserve (Attachment
1). Last amended in 1998, the cooperative agreement describes the rights and responsibilities of Deschutes
County and the City of Bend for reviewing comprehensive plan amendments, implementing ordinances, land use
actions, public improvement projects, enforcement, and other related matters.
In 2016, the City of Bend and Deschutes County expanded the UGB to include 2,380 acres. During the UGB
expansion process, the State determined that Bend's Urban Area Reserve (UAR) designation has no effect under
state law other than recognizing that those areas qualify as exceptions to Statewide Planning Goals 3 and 4.
Based on that determination, the City of Bend removed the UAR designation and various references from their
Comprehensive PIan.1
II. REVISED JOINT MANAGEMENT AGREEMENT
1 The UAR is located around the Bend UGB and pertains, but is not limited to, Tetherow Resort, Cascade Highlands, Miller Tree Farm,
Gulpher Gulch, and properties owned by Matt Day and the Coats family. It remains in Deschutes County's Comprehensive Plan as a plan
designation specific to those lands.
Cif
e
'ices Performed with Pride
The proposed revised JMA agreement establishes clear responsibilities within Bend's UGB and removes any
reference to the "Urban Area Reserve." Table 1 compares the existing JMA with the revised JMA. With the
exception of prohibiting special water districts, there are no significant changes between the two versions. Land
use and building permit responsibilities are delegated to the City of Bend, while road authority remains with
Deschutes County until annexation. On June 7, 2017, the Bend City Council held a public hearing to review the
agreement and unanimously approved the Revised JMA (Attachment 2).
Table 1— Deschutes County / City of Bend Joint Management Agreement Amendment
Key Provisions
1998 JMA
•
(Current Agreement)
Proposed
1. Applies only to Urban Unincorporated Area (UUA)
No, also applies to
Bend UAR
Yes, including the land
withdrawn from the City of
Bend by City Resolution
24592
2. County delegates land use and building permit
authority to City of Bend in the Urbanizable Area
(UA)
Yes
Yes
3. ',County delegates code enforcement exclusively for
land use and building permit cases to City of Bend
in the UA
Yes
Yes
4. Deschutes County retains authority for on-site
wastewater program and any code enforcement
related to it
Yes
Yes
5. City of Bend has exclusive jurisdiction for all quasi-
judicial development applications and
Comprehensive Plan and map amendments
Yes
Yes
6. County has final decision making authority of
legislative amendments in the UA
Yes
Yes
7. Sanitary, districts in the UA shall not be formed
except as consistent with the Bend Area General
Plan (not allowed)
Not allowed
Not allowed
8. Water districts in the UA shall not be formed
except as consistent with the Bend Area General
Plan (not allowed)3
JMA encourages
annexation over "the
formation of
expansions of special
districts"
Not allowed
9. County roads existing within the UUA will remain
under county jurisdiction and maintenance until
annexation
Yes
Yes
2 Resolution 2459 removed the Deschutes County Safety Campus from the city limits of Bend to allow a justice court to be established at
this location. At the time of the resolution, state law prohibited a circuit court and a justice court from being located within the same
jurisdiction.
3 The restrictions on formation of special districts implement recently adopted City of Bend Comprehensive Plan Policies:
• Plan Management and Citizen Involvement, Urban Planning Coordination, Policy 1-5: No new water or sewer service districts shall
be created within the UGB without the concurrence of the city. (CP p.18)
• Public Facilities and Services, Sewer Collection Facilities, Policy 8.2: The city is the primary provider of sewage collection and
treatment services for the City's service area under Statewide Planning Goal 11. (CP p. 133)
-2-
Key Provisions
1998 JMA
(Current Agreement)
Proposed
P
10. Any new roads or upgrades not related to
maintenance or repair in the UUA associated with
development will be built to City standards or
require payment in -lieu
JMA is ambiguous
Yes
11. City of Bend has authority to charge water, sewer,
and transportation SDCs in the UUA.
JMA is ambiguous
Yes
III. URBAN HOLDING ZONE AND RELATED AMENDMENTS
The City of Bend, as the applicant, is proposing amendments to Titles 15, 17, 17A, 18, 19, and 19A of the
Deschutes County Code to:
• Clarify applicability within the City of Bend UGB,
• Change the zone designation for certain property to Urbanizable Area District, and
• Establish criteria and standards for the Urbanizable Area District.
The staff report (Attachment 3) provides an overview of the proposed zone change and text amendments and
the adopting ordinance under consideration; Ordinance 2017-009, is also attached (Attachment 4).
Under the current and revised JMA the City of Bend has planning and land use regulatory authority responsible
for processing land use applications including the proposed legislative zone change and text amendments. As
specified in the JMA, final action on legislative changes remains vested with the Board.
The Bend City Council held a public hearing on June 7, 2017, to review similar changes to the Bend Development
Code and approved the amendments unanimously.
The Deschutes County Planning Commission reviewed the proposed amendments on June 8, 2017. The
Commissions did not oppose the proposed amendments but they communicated the importance of identifying a
timeframe for developing lands within the UA zone.
IV. NEXT STEPS
Public hearings on the revised JMA and UA zone change and related text amendments are scheduled for June
28, 2017. At the conclusion of testimony, the Board can:
• Continue the hearing to a date certain;
• Close the hearing and leave the written record open to a date certain; or
• Close the hearing, and commence deliberations.
Attachments
1. 1998 JMA
2. Revised JMA
3. Staff Report
4. Ordinance 2017-009
4 Prior to the City updating its Transportation System Development Charge (SDC) methodology to include properties in the UUA, the City
will collect County transportation SDCs and remit the proceeds to the County.
-3-
98-12331
0164-0439
AGREEMENT BETWEEN THE CITY OF BEND, OREGON, AND
DESCHUTES COUNTY, OREGON, FOR THE JOINT MANAGEMENT OF
THE BEND URBAN AREA 98 FEB 26 PPf 1: 56
WHEREAS, the City of Bend, Oregon, hereinafter;{ r�f�eCr,¢dl;o�l,s 9,ty", and
Deschutes County, Oregon, hereinafter referred to as "Counttb,uw@ptt rized under
the provisions of ORS 190.003 to 190.030 to enter into intergovernmental agreements
for the performance of any or all functions that a party to the agreement has authority to
perform; and
WHEREAS, ORS 197.175, 197.190, 197.275, and 197.285 and OAR 660-03-
010 require counties and cities to prepare and adopt comprehensive plans consistent
with statewide goals, and to enact ordinances or regulations to implement the
comprehensive plans; and
WHEREAS, Statewide Planning Goal No. 14 requires that establishment and
change of the urban growth boundary shall be a cooperative process between the City
and the County that surrounds it; and
WHEREAS, City and County recognize a common concern regarding the
accommodation of population growth and utilization of lands adjacent to the City; and
WHEREAS, City and County have adopted and coordinated consistent
comprehensive plans which establish an Urban Growth Boundary for the urban area
and policies related to urban development and the provision of urban services within
the Urban Growth Boundary; and
WHEREAS, City and County recognize that as their comprehensive plans and
implementing ordinances are amended from time to time, that they shall remain
consistent and coordinated with each other; and
WHEREAS, City and County desire to transfer jurisdiction of County roads within
the City; and to establish financial responsibility for capital construction and
maintenance of such roads; and
WHEREAS, City and County recognize that it is necessary to cooperate with
each other to implement the urbanization policies of their comprehensive plans;
NOW, THEREFORE, the parties do hereby agree as follows:
1. Definitions.
nuatoriairci
APR 0 1 1998
Urban Growth Boundary (UGB). The urban growth boundary line
acknowledged by the Land Conservation and Development Commission,
`
which identifies and encompasses urban and urbanizable land tF jai'' 6 ..file
acknowledged 1981 Bend General Plan the urban growth bourie(), 1990
identified as the Initial Urban Growth Boundary (UGB).
1 - JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164-0440
Urban Reserve. Lands outside of the urban growth boundary identified as
highest priority for inclusion in the urban growth boundary when additional
urbanizable land is needed in accordance with the requirements of Goal
14.
Urbanizable Land. Urbanizable lands are those unincorporated lands
between the Bend city limits and the urban growth boundary.
Urban Reserve Boundary (URB). The boundary line which identifies and
encompasses the City, UGB and adjacent lands designated as urban
reserve.
Urban Facilities and Services. Basic facilities that are primarily planned
for by local government but which also may be provided by private
enterprise and are essential to the support of development in accordance
with the comprehensive plan. Urban facilities and services include police
protection, fire protection, sanitary facilities, storm drainage facilities,
streets and roads, water facilities, planning, zoning and subdivision
control, building safety, health services, recreation facilities and services,
energy and communication services and community governmental
services (including schools and transportation).
2. Intent of Agreement.
A. City and County hereby agree to establish a procedure for the
implementation of the UGB and URB both of which form an integral part of
the City Comprehensive Plan and the County Comprehensive Plan.
B. The procedures for implementation of the UGB, URB and the BAGP shall be
as specified hereinafter in this agreement.
C. The provisions of this agreement, the BAGP and the implementing
ordinances, as amended, shall establish the procedure for review and action
on the comprehensive plan amendments, implementing ordinances, land
use actions, public improvement projects, and other related matters which
pertain to the UGB.
D. It is hereby recognized that actions relating to the land within the City may
affect the joint management of the UGB and actions relating solely to lands
within the UGB but outside the corporate limits of the City may impact lands
within the City.
E. All actions as specified by this agreement shall be taken to assure that the
City and County Comprehensive Plans remain consistent and coordinated
with each other.
2 - JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
4164-4441
F. It is the intent of City and County to transfer the building inspection and land
use responsibilities from County to the City for unincorporated lands within
the UGB.
3. The timing and additional details of implementation of Sections 4, 5 and 6 of this
agreement are contained in the "Agreement Regarding the Transfer of Building
and Land Use Responsibilities within the Bend Urban Growth Boundary"
(attached as Exhibit "B").
4. Comprehensive Plan and Implementing Ordinance Amendments.
A. All legislative amendments to the BAGP for the UGB and implementing
ordinances, and all legislative amendments to the UGB shall be enacted in
accordance with the following procedures:
1. The City shall be responsible for textual changes in the BAGP or
implementing ordinances within the UGB. When the jurisdiction of
the textual change falls within the County, notice shall be provided
by the City to the County not less than ten (10) days prior to first
hearing on the issue by the Bend Urban Area Planning
Commission (BUAPC). The County shall forward its comments
back to the City prior to the first hearing on the issue. County
recommendations shall be included in the City staff report. No
response from the County staff to the request shall be presumed to
mean no staff comment regarding the proposal. Following their
review, the Planning Commission shall recommend to the
governing bodies approval, disapproval or modification of the
proposed amendments(s).
2. Upon receipt of the Planning Commission's recommendation, the
City Council shall set a date for a City Council public hearing.
3. The City Council shall adopt the findings of fact, and adopt, adopt
with changes, or deny the proposed amendment(s).
4. Upon adoption by the City Council, the City shall forward the
decision to the County. If the City requests the County to make the
same changes, the City shall arrange for and provide public notice
for a hearing by the Board of County Commissioners (BOCC). Any
issues shall be resolved by the governing bodies.
B. A quasi-judicial amendment to the BAGP maps or the zoning maps within
the UGB shall be enacted in accordance with the following procedures:
1. The City shall have exclusive jurisdiction for all quasi-judicial plan
map amendments and zoning map changes for lands within the
City limits. Provided, however, the City shall notify the County of
3 JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164-0442
the proposed changes and afford the County at least 10 days
notice prior to the first hearings on proposed changes.
2. The City shall have jurisdiction to process all plan map
amendments and zoning map changes in the unincorporated UGB
(lands outside the City, but within the UGB). Provided, however,
the City shall notify the County of the proposed map changes and
afford the County at least 10 days notice prior to the first hearing on
a proposed change. The Board of County Commissioners shall
only hear plan map amendments and zoning map changes if
required by ORS 215.431 and then only after approval by the City
Council. All map changes shall be adopted by the Board of County
Commissioners.
3. The City shall set a date for a public hearing on the proposed
change in accordance with adopted land use procedures.
4. The City and County shall have standing to appeal all map
amendments of the BAGP and zoning ordinance enacted by the
other jurisdiction.
5. Review Process for Other Land Use Actions . The County shall use the following
process for review and action on proposed land use actions other than those
covered by Section 4 which are being considered within the URB.
A. County shall retain jurisdiction over land use decisions within the urban
reserve, and such decisions shall conform to these adopted policies:
1. Recognizing that urban reserve areas could ultimately become part
of the City, the City's recommendation shall be considered.
2. The County shall send to the City a notice of pending applications
for land use action within the urban reserve. The City shall have
not less than ten (10) days to respond from the date of notification.
City recommendations shall be included in the county staff report.
No response by the City staff to the request shall be presumed to
mean no staff comment regarding the proposal.
3. The City shall have standing to appeal all land use decisions in the
urban reserve.
B. The City shall retain jurisdiction over land use decisions within the City, and
such decisions shall conform to these adopted policies:
1. Recognizing that land use decisions within the City affect the area
outside the City and within the UGB, the County's recommendation
shall be considered.
4 - JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164-0443
2. The City shall send to the County notice of pending land use
actions within the City. The County shall have not Tess than ten
(10) days to respond from the date of notification. County
recommendations shall be included in the city staff report. No
response by the county staff to the request shall be presumed to
mean no staff comment regarding the proposal.
3. County shall have standing to appeal all land use decisions in the
City.
4. The City may process County Land Use Permits, as specified in
this agreement, prior to annexation.
C. Land use decisions in areas outside the City and within the UGB shall be
handled as set forth in article (5) of the Transfer Agreement, attached hereto
as Exhibit B. The City shall send to the County a notice of pending
applications for land use action within the UGB. The County shall have not
Tess than 10 days to respond from the date of notification. County
recommendations shall be included in the City staff report. No response by
the County staff shall be presumed to mean no staff comment regarding the
proposal.
6. Review Process for Other Activities. The City and County shall use the following
process for review and action on public improvement projects, and similar
programs, projects or proposals which are allowed by State land use laws and
which will apply to the UGB, URB and within the City.
A. The County shall seek a recommendation from the City with regard to the
following items which are within, adjacent to, or directly impact the UGB or
URB and for which the County has ultimate decision-making capacity:
1. Capital Improvement Programs.
2. Functional plan, or amendment thereto, for utilities, drainage, solid
waste, transportation, recreation or other similar activity.
3. Plan, or amendment thereto, for economic or industrial
development.
4. Proposal for formation of, or changes of boundary or functions of,
special service districts, as these terms are defined in ORS
198.705 and 198.710, except as provided in ORS 199.410 and
199.512.
5. Recommendations for designation of an area as a health hazard.
5 - JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
6. Other plans or proposals similar to the above.
0164--0444
B. The City shall seek a recommendation from the County with regard to the
following items which will affect the UGB, URB and the City, for which the
City has ultimate decision-making capacity:
1. Capital improvement programs.
2. Functional plans, or amendments thereto, for utilities, drainage,
recreation, transportation or other similar activity.
3. Plans, or amendments thereto, for economic or industrial
development.
4. Proposals for the extension of any utility facility lines or service
area.
5. Other plans or proposals similar to the above.
C. The initiating jurisdiction shall allow the responding jurisdiction forty-five (45)
days to review and submit recommendations with regard to the items listed
in Sections 6 (A) and (B). Additional time may be provided at the request of
the responding jurisdiction and with the concurrence of the initiating
jurisdiction.
D. The initiating jurisdiction shall consider, and shall respond to, as appropriate,
the recommendations of the responding jurisdiction in making its decision.
No response by the responding jurisdiction to the request shall be presumed
to mean no comment on the proposal.
7. Sewer Boundary.
A. The City and County agree to establish the URB as a sewer boundary.
B. City shall provide sewage services to users within the UGB on the same
basis as such services are provided to users in the City. The provision of
sewage services by City shall be at all times consistent with and in the
furtherance of all applicable federal, state and local laws, rules, regulations
and policy.
C. County shall do the following:
1. Cooperate with City and the Department of Environmental Quality
in the administration of all applicable laws, rules and regulations in
the provision of sewage services and effluent disposal within the
URB.
6 - JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164-0445
2. Not approve the formation of sanitary districts or the like within the
URB, except as consistent with the BAGP.
3. Adopt appropriate legislation requiring the installation of sewage
collector systems within all new subdivisions as a condition of plat
approval.
4. Refer persons proposing new development within the UGB to the
City of Bend for information relating to the extension of sewage
facilities to the property being developed.
5. Adopt legislation requiring persons receiving land use permits for
new construction in the UGB to hook up to sewer facilities as they
are extended to serve their properties.
8. Special Provisions.
A. Annexations:
1. City annexation shall occur only within the UGB.
2. Specific annexation decisions shall be in compliance with
applicable land use law and be consistent with governing
annexation policies of the City of Bend.
3. County and City recognize that the City will be annexing all or part
of the urban growth boundary (UGB). Further, this agreement is
made expressly to allow the City to annex territory to the City as
provided for in ORS 195.205. It is anticipated that all the land
within the UGB will eventually be annexed to the City.
4. Upon annexation, jurisdiction of all land use permits for any use
within the area annexed shall be deemed automatically transferred
from the County to the City.
a. Upon annexation, the City shall recognize and have
authority to implement and enforce County land use
approvals together with all implementing agreements;
including, but not limited to: improvement agreements,
conditions of approval agreements, bonds and other similar
arrangements.
b. For land use approvals started prior to, but not completed
by, the effective date of this agreement within the UGB and
outside the City, implementing agreements shall be signed
by the City and the County jointly including all improvement
agreements, conditions of approval agreement, and all
7 - JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164-0446
bonds or other forms of security shall designate both the
City and County as assured agencies.
B. Urban Services:
1. The Sewer and Water Master Plan (1991) ("Master Plan"), as
jointly adopted, shall be the controlling guideline for future sewer
and water system construction within the URB until more detailed
engineering consistent with the Plan's intent is available. City will
extend water and sewer outside the UGB only as allowed by state
land use law.
a. Annexation to the City will be encouraged over the formation
or expansion of special districts.
b. The County will not approve subdivisions or partitions
required by the zoning ordinance to have sewer or water
that are not connected to a sewer system and a water
system consistent with the master plan.
2. The City, County and affected agencies shall coordinate the
expansion and development of all urban facilities and services
within the UGB in a manner to promote early annexation of said
areas to the City.
a. Provisions for urban facilities and services shall be planned
in a manner limiting duplication in an effort to provide greater
efficiency and economy of operation.
b. The City and County shall require urban facilities and
services to be available concurrent with or prior to any
development within the UGB.
C. Consider legislation establishing systems development charges to be
imposed upon all new development in the UGB. County and City systems
development charges shall be coordinated, and in compliance with
applicable law.
9. Jurisdiction of Roads within the Urban Growth Boundary
A. Beginning July 1, 1998, the City shall accept jurisdiction for all County roads
annexed to the City within the UGB. The City shall assume complete
responsibility under the terms of this agreement for the transferred County
roads. The City shall annex roads adjacent to property annexed to the City.
8 - JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164-0447
B. The County agrees to enact appropriate legislation transferring to the City
jurisdiction under the terms of this agreement, all roads within the City limits
prior to July 1, 1998. The City agrees to accept such transfer.
C. SDC funds unencumbered by the County as of July 1, 1998, shall be
transferred to the City for expenditure by the City on eligible capital
improvement projects.
D. Effective March 1, 1998, the City shall receive all SDC's collected within the
UGB. The City shall assume responsibility for accounting for, and managing
SDC's within the UGB. The City shall be responsible for setting the rates for
SDC's within the UGB. Any outstanding SDC credit and reimbursement
shall be transferred to the City. The City shall administer any such contract
assigned to the City.
E. The City shall assume maintenance and operational responsibilities for all
County roads within the UGB as of July 1, 1998. The County shall beginning
with the fiscal year starting July 1, 1998, pay to the City the following sums
of money:
Fiscal year starting July 1, 1998 $900,000
Fiscal year starting July 1, 1999 700,000
Fiscal year starting July 1, 2000 500,000
Fiscal year starting July 1, 2001 500,000
Fiscal year starting July 1, 2002 500,000
These sums shall be payable in 4 equal payments, due at the end of each
quarter of the fiscal year. These monies will off -set the cost for the City to
maintain county roads within the UGB. In addition, the County will transfer to
the City maintenance equipment for these roads as specified in attached
Exhibit A, incorporated herein by reference.
F. Notwithstanding anything to the contrary in Section 14, this Section 9 shall
not be terminable, except by mutual agreement of City and County.
10. Public Works Construction Standards.
A. The County and City shall cooperatively develop development standards for
sewer, water, fire flows, roads and drainage systems, in order to assure that
an adequate transition may be made from a semi -rural to an urban
environment and from County to City jurisdiction.
B. City shall be responsible for the preparation, adoption and amendment of the
public facility plan required by ORS 197.712(2) (e) with the aid and
assistance of County. City shall coordinate the preparation of the public
facility plan with the County, special districts, state and federal agencies and
private providers of public facilities as required of OAR 660-11-015 (2).
9 - JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
11. Special District Coordination.
0164-0448
A. When a special district situated in full or in part within the URB has entered
into an intergovernmental coordination agreement with the County and the
City, it shall be given the opportunity to review and comment on the land use
actions and activities as specified in Sections 4 through 6 of this agreement.
B. If such an agreement is entered into, the special district shall give the City
and County the opportunity to review and comment on the following activities
which will apply to the URB.
1. Public works projects to be provided by the district.
2. Plans for establishment, improvement or extension of facilities
provided by the district.
3. Capital improvement programs developed by the district.
12. Enforcement. City shall be responsible for the enforcement of all land use
ordinances within the City Limits and for permits issued pursuant to this
agreement. County shall be responsible for the enforcement of all land use
ordinances outside the UGB and within the URB. Enforcement responsibilities
for lands outside the City but inside the UGB shall be subject to Article VIII of the
Transition Agreement attached hereto as Exhibit A.
13. Indemnification.
A. To the extent legally possible the City shall indemnify, hold harmless, and
defend the County, it's officials, agents, and employees from and against
any and all claims, damages, losses, and expenses including attorney fees,
arising in or from its performance or failure to perform the responsibilities
delegated to the City by the County. This indemnity provision shall survive
the termination of this agreement.
14. Review, Amendment and Termination.
A. This Agreement may be reviewed and amended at any time by mutual
consent of both parties, after public hearing by the City Commission and
Board of County Commissioners.
B. This Agreement shall be reviewed, and may be amended, at the time
established for review of the BAGP.
C. Any modifications in this Agreement shall be consistent with the BAGP and
County Comprehensive Plan.
10 - JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164-0449
D. This agreement may be terminated by either party under the following
procedure:
1. A public hearing shall be called by the party considering
termination. The party shall give the other party notice of hearing
at least forty-five (45) days prior to the scheduled hearing date.
The forty-five (45) day period shall be used by both parties to seek
resolution of differences.
2. Public notice of the hearing shall be in accordance with applicable
state-wide and local goals and statutes.
3. An established date for termination of the Agreement shall be at
least one year after the public hearing in order to provide ample
time for resolution of differences.
15. This Agreement replaces the management agreement between the City and
County dated June 30, 1993 as amended. That agreement is hereby declared to
be null and void.
IN WITNESS WHEREOF, this Urban Growth Area Joint Management Agreement
is signed and executed this 18 day of February, 1998.
CITY OF BEND, OREGON
Mayor
Recorder
BOARD OF COUNTY OF
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11 - JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
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0164--0451
Exhibit B to Joint Management Agreement
AGREEMENT REGARDING THE TRANSFER
OF BUILDING AND LAND USE RESPONSIBILITIES
WITHIN THE BEND URBAN GROWTH BOUNDARY
This agreement is entered into pursuant to the authority granted in Chapter 190 of
Oregon Revised Statutes. It implements policy guidance provided by the Bend Area
General Plan and the Agreement between the City of Bend and Deschutes County for
the joint management of the Bend Urban Area for the transfer of building permit and
inspection and land use responsibilities. The agreement is between the City of Bend,
an Oregon municipal corporation, hereinafter called the "City", and Deschutes County,
a political subdivision of the State of Oregon, hereinafter called the "County".
Recitals
WHEREAS, the City and County recognize that it is necessary to cooperate to
establish a policy framework for transition of building and land use responsibilities within
the Bend Urban Growth Boundary; and
Whereas, the City and County seek to clarify the details of the transfer of building
and land use responsibility; and
Whereas, ORS 190.003 et seq. provides for intergovernmental agreements
between units of local government, including the City and the County, to allow the
performance of functions or activities of one unit of local government for another; and
Whereas, ORS 190.003 et seq. requires that an intergovernmental agreement
contemplating the performance of functions or activities by one unit of local government
for another shall specify the responsibilities between the parties;
NOW, THEREFORE, PURSUANT TO THE PROVISIONS OF ORS 190.003 et
seq. THE CITY AND COUNTY AGREE AS FOLLOWS:
Article I: Purpose.
A. To avoid the duplication of governmental effort and public confusion
concerning land development processes and standards.
B. To provide for the orderly transition of building and planning service
delivery from the County to the City.
C. To allow the City to receive land use permits and building permit
applications prior to completing annexation of property; and to ensure
that permits processed by the City or County remain in force, are
lawful and recognized upon annexation.
1 - EXHIBIT B TO JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164-0452
D. To assure employees, that may need to be transferred to the City in
accordance with ORS 236.605 to 236.650, of orderly transition.
E. To avoid problems with the provision of services relating to the details
of transferred services and the effects of the transfer on current
programs and customer service.
Article II: Definitions. As used in this agreement the following words shall mean or include
A. Building Regulations. Plan review, inspection and enforcement of the
State of Oregon building -related codes for new construction,
remodeling and electrical service.
B. Land Use Regulations. Those regulations, as defined by ORS
197.015(11) applicable to the Urban Growth Boundary. For the
purposes of this agreement land use regulations shall include Titles
17, 19, and 22 of the County Code and City of Bend Zoning Ordinance
No. NS -1178, Subdivision Ordinance No. NS -1349 and Land Use
Procedures Ordinance No. NS -1556.
C. Urban Growth Boundary (UGB). The urban growth boundary line
acknowledged by the Land Conservation and Development
Commission, which identifies and encompasses urban and
urbanizable land. In the acknowledged 1981 Bend General Plan the
urban growth boundary was identified as the Initial Urban Growth
Boundary (UGB).
D. Urban Reserve. Lands outside of the urban growth boundary
identified as highest priority for inclusion in the urban growth boundary
when additional urbanizable land is needed in accordance with the
requirements of Goal 14.
E. Urbanizable Land. Urbanizable lands are those unincorporated lands
between the Bend city limits and the urban growth boundary.
F. Urban Reserve Boundary (URB). The boundary line which identifies
and encompasses the City, UGB and adjacent lands designated as
urban reserve.
Article III. Annexation Policy.
A. Between March 1, 1998, and June 30, 1998, the City shall continue to
annex developed property and undeveloped properties proposing to
apply for development approval and will begin annexation of lots in
approved subdivisions as of July 1, 1998:
2 - EXHIBIT B TO JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164-0453
Article IV. Building Services to be Transferred.
A. The County shall beginning July 1, 1998:
1. To the extent allowed by Oregon State Building Codes Division,
transfer to the City and it's Building Official the responsibility and
authority to administer the building regulations within the
urbanizable land of the Bend UGB and to set appropriate fees for
building regulations.
2. Assist in any necessary transfer of authority from the State of
Oregon Building Codes Division and the State Fire Marshall to the
City for the administration of the building regulations within the
UGB.
3. Continue to process permits filed before July 1, 1998.
B. The City shall beginning July 1, 1998:
1. Receive approval from the Oregon Building Codes Division for
transfer of authority in accordance with Chapter 918 Division 20 of
the Oregon Administrative Rules.
2. Administer building regulations and receive all fees required for that
service and the proceeds from any fines within the UGB.
3. Set all fees for permits, processing, appeals and enforcement of
building regulations.
4. Assume responsibility to enforce all building regulations within the
UGB.
Article V: Land Use Authority Transferred.
A. Effective March 1, 1998, the County:
1. Transfers to the City the responsibility and authority to administer
land use regulations for all land use permits, limited land use
decisions or expedited land divisions requiring City sewer or water
agreements on urbanizable land.
2. Shall continue to have authority to process and decide
development permits and land use permits, limited land use
decisions or expedited land divisions filed before March 1, 1998,
and all applications for development permits and land use permits,
3 - EXHIBIT B TO JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164--0454
limited land use decisions or expedited land divisions which do not
have sewer or water agreements required by the City. County shall
retain its authority over such pending applications until all appeals
have been exhausted and a decision is final.
3. Shall work with City staff in the preparation of City regulations and
standards including land use procedures, subdivision regulations,
zoning and related implementation regulations, and the proposed
new Comprehensive Plan for adoption by the County.
B. Effective July 1, 1998, the County transfers to the City all of the
County's remaining responsibility and authority to administer land use
regulations within the UGB, including but not limited to processing and
deciding all quasi-judicial applications for land use approvals
thereunder. Provided that the County shall continue to have
responsibility and authority to process and decide on applications for
development and land use approvals filed on or before June 30, 1998,
until such time as all appeals are exhausted and a decision is final,
and provided further that the County governing body shall make the
final decision on land use approvals it is required to consider under
ORS 215.431.
C. Effective March 1,1998, the City shall:
1. Have the authority to administer and enforce the land use
regulations adopted by the County for the urbanizable land for all
land use permits, limited land use decisions or expedited land
divisions requiring City sewer or water agreements.
2. Exercise decision-making authority in accordance with procedures
adopted by the County for the urbanizable land requiring City
sewer or water agreements.
3. Assume responsibility for issuance of delegated approvals and site
inspection duties necessary for the administration of the land use
regulations for the urbanizable land.
4. Set all fees for land use regulations, permits, processing, appeals
and enforcement.
5. Upon annexation, accept jurisdiction of all land use approvals for
any use within the area annexed and automatically transfer such
approvals from the County to the City.
4 - EXHIBIT B TO JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
6164-045 .
6. Review County land use regulations and propose changes to the
County to make them consistent with City land use regulations for
adoption prior to July 1, 1998.
D. The City shall on July 1, 1998, assume responsibility and authority for
administering all land use regulations in the UGB, including but not
limited to processing and deciding all quasi-judicial approvals
thereunder, in accordance with the delegation set forth in subsection B
of this section and the conditions set forth in subsection C of this
section.
Article VI: Legislative Amendments.
A. The City Council shall be responsible for making all legislative
decisions prior to review by the Board of County Commissioners.
Legislative amendments shall be consistent with the City/County Joint
Management Agreement.
Article VII: Addresses, Street Naming and Road Approach Permits (access
permits)on County Roads.
A. The Cityand the County shall initiate a program to consolidate the
addressing, street naming and road approach permit process. Until
this program is adopted, the County shall retain responsibility for these
functions for the urbanizable land, and the City shall collect County
fees for this program.
Article VIII. Code Enforcement.
A. The City and the County shall initiate a program to cooperate in the
transfer of code enforcement for the urbanizable land to the City
beginning March 1, 1998.
B. It is the intent of this agreement to transfer all code enforcement
responsibility for Building and Land Use Permits on urbanizable land to
the City by July 1, 1998.
Article IX. Employees.
A. The County shall endeavor to hold open vacant positions so as to
reduce the transfer of employees to the City to the greatest extent
practical. The County shall transfer no more than three equipment
operators. Any transfer of employees required by ORS 236.605 to
236.650 shall occur on July 1, 1998. The City shall inform any new
employees of the potential transfer of County employees and the
potential for seniority from a transferring employee in accordance with
5 - EXHIBIT B TO JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164-0456
ORS 236.620. The County shall be responsible for transferring funds
for vacations and other financial disbursements as required by ORS
236.605 to 236.650.
Article X. Historic Program.
A. The City shall support the Historic Preservation Program consistent
with the City's population as a percentage of the cost of the program.
Article XI. Northeast and Southwest Neighborhood Refinement Plans.
A. Two neighborhood refinement plan projects are currently proposed to
be completed by the County at a cost of $110,095. $59,430 of the
cost is covered by State grants. $30,000 of the County cost is for a
consultant to initiate the Northeast neighborhood project.
1. The County will remain committed to the $30,000 costs for the
Northeast project.
2. The City will become a partner in the grants funding these projects
and commitments to participate in the projects.
3. The County shall provide staff and non -labor related support for the
Northeast project. The City shall reimburse the actual costs to the
County, not to exceed $7,500 for the Northeast project.
4. The City shall assume responsibility for the administration and
completion of the Southwest project.
Article XII. Fee Waivers.
A. Effective March 1,1998, the mutual fee waiver agreement between
the City and the County for land use or building permits shall be
void.
Article XIII. Appeals.
A. Appeals of administrative decisions regarding building regulations shall
be made to the Bend Building Code Board of Appeals or its successor.
Appeals of the City action shall be to the Oregon Department of
Commerce.
B. Appeals of administrative decisions within the UGB regarding land use
regulations shall be in accordance with Title 22 of the County Code.
By April 1, 1998, the County shall substitute the City Council for the
6 - EXHIBIT B TO JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164-0457
Board of County Commissioners as the appeals body under Title 22 0
the County Code for decisions appealed from the Hearings Officer.
C. At the City's discretion, the City may defend administrative or judicial
review of its decisions regarding application of building or land use
regulations to land within the UGB.
Article XIV. Indemnification.
A. To the extent legally possible the City shall indemnify, hold
harmless, and defend the County, it's officials, agents, and employees
from and against any and all claims, damages, losses, and expenses
including attorney fees, arising in or from its performance or failure to
perform the responsibilities delegated to the City by the County. This
indemnity provision shall survive the termination of this agreement.
Article XV. Dispute resolution.
A. City and County planning and building staffs shall attempt to informally
resolve any disputes regarding conformance with this agreement or
regarding the terms, conditions, or meaning of this agreement.
Disputes which are not resolved through this informal process shall be
resolved by a joint meeting of the City Council and Board of County
Commissioners.
Article XVI. Term.
A. This agreement shall continue indefinitely unless terminated by either
party upon 12 months advanced written notification provided to the
other party.
Article XVII. Amendment.
A. This agreement may be modified in writing by mutual consent of both
parties. The parties recognize an obligation on the part of County to
extend the application of this agreement to lands included in the future
within the UGB and to adopt any future changes in the building
regulations or land use regulations made by the City for application to
the UGB.
Article XVIII. Severability.
A. If any article, section, subsection, clause or phrase of this agreement
is determined by any court or arbitrator of competent jurisdiction to be
invalid or unenforceable for any reason, such determination shall not
7 - EXHIBIT B TO JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
0164-0458
affect the validity of the remaining agreement, which shall continue to
be in effect.
Article XVIV.
IN WITNESS WHEREOF, THE AUTHORIZED REPRESENTATIVES OF
THE CITY AND COUNTY AS PARTIES HERETO HAVE HEREBY AGREED:
CITY OF BEND
Recorder
BOARD OF COUNTY COMMISSIONERS
OF DESCH TES COU TY, OREGON
Nancy
Sc angen, Chair
obert L. Nip
ssioner
Lint L. wearinge
T:
ommissioner
Recording Secretary
8 - EXHIBIT B TO JOINT MANAGEMENT AGREEMENT - BEND URBAN AREA
REVISED JOINT MANAGEMENT AGREEMENT REGARDING THE AREA WITHIN
THE BEND URBAN GROWTH BOUNDARY
This Revised Joint Management Agreement Regarding the Bend Urbanizable Area
(Agreement) is Between the City of Bend, an Oregon municipal corporation (City) and
Deschutes County, a political subdivision of the State of Oregon (County).
RECITALS
A. City and County entered into an "Agreement between the City of Bend, Oregon, and
Deschutes County, Oregon, for the Joint Management of the Bend Urban Area" on
February 18, 1998 (1998 Agreement). The 1998 Agreement assigned responsibility
between the City and the County as to areas within the urban growth boundary
(UGB) of the City as it existed at that time. The Original Agreement also contained
provisions relating to the Urban Area Reserve outside the UGB.
B. Since adoption of the 1998 Agreement, the City annexed virtually all of the area
within the UGB. In 2016, the City and County expanded the UGB to include 2,380
additional acres. During the UGB expansion process, the State determined that the
Urban Area Reserve (UAR) designation has no effect under state law other than the
effect that arose from the exceptions to Statewide Planning Goals 3 and 4 adopted
for those areas. Therefore, the UAR designation and various references were
removed from the City's Comprehensive Plan but remain in Deschutes County's
Comprehensive Plan as a plan designation specific to lands located around the
Bend UGB.
C. This Agreement replaces the 1998 Agreement, including Exhibits A and B. The City
and County agree that it is appropriate to replace the 1998 Agreement to establish
clear responsibilities within the UGB and to remove any reference to the "Urban
Area Reserve."
D. ORS Chapters 190.003 to 190.030 and ORS 215.170 authorize the City and County
to enter into this intergovernmental cooperation agreement. It is not considered a
regulatory document or a land use decision, but an agreement for the performance
of functions by the City that the County has the authority to perform, consistent with
the statewide planning goals. Goal 14 requires that establishment and change of an
urban growth boundary be a cooperative process between the city and county.
E. Goal 14 and Oregon land use laws related to UGB expansions, needed housing and
adoption of comprehensive plans and the implementing regulations further require
that urbanizable land within UGB boundaries be considered available for urban
development consistent with plans for provision of urban facilities and services, and
that when land is added to the UGB, the government assign appropriate land
designations consistent with its need determination. The City and County recognize
Page 1 of 8 REVISED JOINT MANAGEMENT AGREEMENT REGARDING THE AREA WITHIN THE
BEND URBAN GROWTH BOUNDARY (2017)
that it is necessary to cooperate through this JMA to implement the urbanization
policies of the UGB expansion and their updated comprehensive plans.
NOW, THEREFORE, the parties agree as follows:
TERMS OF AGREEMENT
SECTION 1. Purpose
This Agreement allocates responsibility in the UA between City and County. Areas
within the city limits are within the jurisdiction of the City as to all subject matters over
which the City exercises jurisdiction. It repeals and replaces the 1998 Agreement in its
entirety.
SECTION 2. Definitions
Development Application: All ministerial, permit, limited land use, quasi-judicial
and/or legislative actions initiated by the City or other parties.
Urban Growth Boundary (UGB): The urban growth boundary as adopted by the
City and County and acknowledged by the State, as set forth in the Bend Comprehensive
Plan and as shown on the Bend Comprehensive Plan map.
Urbanizable Area (UA): The unincorporated area inside the UGB but outside the
city limits, including the land withdrawn from the City of Bend by the County by City
Resolution 2459.
SECTION 3. Planning and Land Use Regulatory Authority
3.1 The Bend Comprehensive Plan, Bend Development Code (BDC) and all
associated Public Facility Plans are the controlling Comprehensive Plan, Transportation
System Plan, Goal 11 Public Facility Plans, and implementing regulations for the UA,
including any adopted and acknowledged amendments to those documents.
3.2 As of the effective date of this Agreement, the County will:
a) Delegate and grant to the City any and all authority necessary or
appropriate to the exercise of land use jurisdiction within the UA, including all quasi-
judicial development applications and plan and map amendments, as well as the
authority to apply county zoning regulations and to review and process Development
Applications, in accordance with Deschutes County Code (DCC) Title 19A. If not
superseded by Title 19A, the standards, criteria and procedures of the BDC will apply to
the Development Applications.
b) Delegate to the City authority to initiate and process legislative actions in
the UA, as set forth in Section 3.3(b) below.
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BEND URBAN GROWTH BOUNDARY (2017)
c) Delegate to the City any and all authority necessary or appropriate to
review applications and issue permits for signs in the UA, using the City's sign
regulations in Bend Code (BC) Chapter 9.50, Signs.
d) Delegate the following to the City as authorized by ORS 190.010:
i. Code enforcement authority to enforce violations of the Building Code and
DCC Title 19A , and violations of BC 9.50, Signs for permanent signs that
are not located in the right-of-way, that occur after the effective date of
the JMA and until the property is annexed to the City.
ii. Authority to act as the hearing officer for the County in matters arising
from subsection i. The City may use the Municipal Court Judge as the
hearings officer.
e) Delegate to the City the authority to assign addresses to properties within
the UA using BC Chapter 3.90, Street Names and Address Numbers.
3.3 As of the effective date of this Agreement, the City will:
a) Accept and process all Development Applications in the UA in accordance
with BDC Title 4 Applications and Review Procedures, except for the applications
referenced in (b) below which will be processed as specified in that section.
b) Accept and process all legislative applications in the UA, including County
initiated legislative applications, for amendments to the County's comprehensive plan,
plan map, zoning map and zoning regulations, according to the following:
i. City will give County at least 20 days' notice before the first hearing on any
non-county proposed amendments to the County's Comprehensive Plan,
Plan map, zoning map or zoning regulations.
ii. City will incorporate County comments in the staff report or attach the
County comments to the report and present them to the hearings body.
iii. City staff will assist the county in writing and formatting all ordinances for
adoption by the Board of County Commissioners (BOCC).
iv. City staff will provide the primary staff support to the BOCC on all
proposed amendments to the County Comprehensive Plan, plan map,
zoning map and zoning regulations.
v. The City will follow the standards, criteria and procedures provided for in
the BDC for legislative amendments.
vi. No applications may be adopted without a public hearing by the Bend
Planning Commission, a public hearing by the Bend City Council, and a
Page 3 of 8 REVISED JOINT MANAGEMENT AGREEMENT REGARDING THE AREA WITHIN THE
BEND URBAN GROWTH BOUNDARY (2017)
public hearing by the BOCC. The City Council must make a
recommendation to the BOCC. Wherever feasible the City Council and
BOCC may conduct joint hearings. Final action on a legislative change in
the UA remains vested with the BOCC.
vii. City and County will notify each other within five working days of receiving
any written appeal.
c) Administer and enforce County land use approvals including any
associated agreements, conditions of approval, bonds and other similar arrangements
encumbering or associated with property located within the UA.
d) Prepare, adopt, and amend Goal 11 public facility plans, as required by
ORS 197.712(2)(e). City will coordinate the preparation and the amendment of public
facility plans with the County, special districts, state agencies, federal agencies, and
private providers of public facilities as required by OAR 660-011-015(2).
SECTION 4. Building Permits and Inspections
The City remains responsible for all application intake, plan review and issuance of
building permits and related inspections within the UA initiated after December 6, 2016.
The County will remain responsible for building permits and inspections if the permit
application was filed with the County before the date the property was included in the
UGB.
SECTION 5. Sewer
5.1 The City has the authority but not the obligation to provide extraterritorial sewer
service within the UA under state law. The County will not approve the formation of a
sanitary sewer district under ORS 450 or private sewer system within the UA without the
concurrence of the City, as contemplated by Bend Comprehensive Plan Policy 1-5.
5.2 The County will remain responsible for septic permits (On-site Permits) and
inspections for sewage treatment and dispersal systems for properties in the UA.
SECTION 6. Water
6.1 The City has the authority but not the obligation to provide extraterritorial water
service within the UA in those areas not already within either the existing Avion Water
Company or Roats Water Company service areas. The County will not approve the
formation of any domestic water supply district that attempts to form as a special district
under ORS 264 within the UA without the concurrence of the City, as contemplated by
Bend Comprehensive Plan Policy 1-5.
6.2 The City may choose to provide extraterritorial water service outside the UGB in
compliance with applicable state statutes, planning goals and subject to any applicable
County land use decision.
Page 4 of 8 REVISED JOINT MANAGEMENT AGREEMENT REGARDING THE AREA WITHIN THE
BEND URBAN GROWTH BOUNDARY (2017)
SECTION 7. Roads
7.1 "County roads" (as defined in ORS 368.001) existing within the UA as of the
effective date of this agreement, will remain County roads, with the County responsible
for maintenance and repair until such time annexation and/or jurisdictional transfer
occur.
a) The County shall consult with the City prior to construction or
reconstruction of public improvements within the UA for improvements initiated by the
County and not affiliated with a development application.
7.2 Any new roads, upgrades not related to maintenance or repair, or improvements
to roads in the UA associated with a development application will be built to City
standards or require an in -lieu payment in conformance with BDC Chapter 4.7 made to
the City.
7.3 Work in the right-of-way in the UA is subject to the City Public Right -of -Way Work
Permit or Public Facility Improvement Agreement.
a) The County delegates to the City any and all authority necessary to
review, approve and inspect all infrastructure constructed subject to the City Public
Right -of -Way Work Permit or Public Facility Improvement Agreement.
b) Any indemnification requirement within the Agreement shall indemnify
both the County and the City and must apply to any and all claims related to
infrastructure installation and operation constructed under this Section.
7.4 Upon annexation, roads and rights-of-way will be accepted by the City under the
City's annexation regulations.
a) Annexation of roads and rights-of-way will include the full width of existing
and new rights-of-way along the frontage of annexing properties.
b) To avoid creating segments of alternating jurisdictional authority,
annexation of right-of-way will be contiguous and will extend to the City's point of
jurisdictional authority.
c) All annexed rights-of-way shall require a transfer of jurisdictional authority
from the County to the City per ORS 373.270.
SECTION 8. SDCs
The City has the authority to charge sewer, water and transportation System
Development Charges (SDCs) in the UA. Prior to the City updating the Transportation
SDC methodology to include properties in the UA, the City will collect Transportation
SDCs as established in the County's System Development Charge Resolution and remit
the proceeds to the County. After the City adopts a new Transportation SDC
Page 5 of 8 REVISED JOINT MANAGEMENT AGREEMENT REGARDING THE AREA WITHIN THE
BEND URBAN GROWTH BOUNDARY (2017)
methodology list, the City will collect City Transportation SDCs as established in the
City's Fee Resolution and retain all charges. Upon adopting the City's Transportation
SDC methodology and SDC for the UA, the City will be responsible for the collection,
processing, challenges and appeals of these SDCs. City water and sewer SDC's will be
collected at the time of any connection to the City systems based on the current City
SDC Fee Resolution.
SECTION 9. Fees
The City's Fee Resolution sets the fees applicable to Development Applications within
the UA.
SECTION 10. Indemnification
10.1 To the extent legally possible the City indemnifies, holds harmless, and will
defend the County, its officials, agents, and employees from and against any and all
claims, damages, losses, and expenses including attorney fees, arising in or from its
performance or failure to perform the responsibilities delegated to the City by the
County under this Agreement. This indemnity provision shall survive the termination of
this Agreement.
10.2 To the extent legally possible the County indemnifies, holds harmless, and will
defend the City, its officials, agents, and employees from and against any and all
claims, damages, losses, and expenses including attorney fees, arising in or from its
performance or failure to perform the responsibilities of the County under this
Agreement. This indemnity provision shall survive the termination of this Agreement.
SECTION 11. Charges
11.1 City will not charge or invoice County for any work, activity, fee or charge
associated with this Agreement.
11.2 County will not charge or invoice City for any work, activity, fee or charge
associated with this Agreement.
SECTION 12. Amendment and Termination
12.1 This Agreement may be amended or terminated only by mutual written
agreement of the parties with 90 days written notice to the other party.
12.2 This Agreement remains in effect until terminated or amended under this section.
SECTION 13. Dispute Resolution
City and County shall follow the following procedure in the event of a dispute under this
Agreement prior to initiating litigation:
Page 6 of 8 REVISED JOINT MANAGEMENT AGREEMENT REGARDING THE AREA WITHIN THE
BEND URBAN GROWTH BOUNDARY (2017)
Step 1 — In person meeting among responsible department heads.
Step 2 — In person meeting between City Manager and County Administrator.
Step 3 — Joint meeting of City Council and County Board of Commissioners.
Step 4 — Mediation by a mutually acceptable Mediator.
SECTION 14. Agreement Interpretation.
The Recitals are incorporated into this Agreement. The Agreement represents the entire
agreement between the parties as to the subject matter covered by this JMA. Each
party relies was represented by an attorney, and mutually negotiated the Agreement in
good faith.
SECTION 15. Effective Date
This Agreement shall be effective when it is duly executed by both City and County.
CITY OF BEND
Casey Roats, Mayor
Authorized by Council Motion on June 7, 2017.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TAMMY BANEY, Chair
ANTHONY DeBONE, Vice Chair
Page 7 of 8 REVISED JOINT MANAGEMENT AGREEMENT REGARDING THE AREA WITHIN THE
BEND URBAN GROWTH BOUNDARY (2017)
PHIL HENDERSION, Commissioner
APPROVED AS TO FORM
ters, City Attorney
David Doyle, County Counsel
Page 8 of 8 REVISED JOINT MANAGEMENT AGREEMENT REGARDING THE AREA WITHIN THE
BEND URBAN GROWTH BOUNDARY (2017)
CITY OF BEND
STAFF REPORT
To: Deschutes County Board of Commissioners
From: Colin Stephens, AICP, Planning Manager
Pauline Hardie, AICP, Senior Code Planner
Meeting Date: June 28, 2017
File Number: 247-17-000194-ZC/247-17-000191-TA
Subject: Amendments to the Deschutes County Zoning Map and Zoning
Ordinance changing the zoning located in the unincorporated area
between Bend city limits and the Bend UGB, except for the land
withdrawn from the City by the County by City Resolution 2459, to
Urbanizable Area (UA) District and amending the Deschutes County
Code (DCC) Chapter 15.08 Signs, Title 17 Subdivisions, and Title 19
Bend Urban Area Zoning Ordinance, repealing Chapter 15.08A City of
Bend Sign Code Ordinance No. 1495 and Title 17A City of Bend
Subdivision Ordinance No. NS 1349, and amending Title 19A and
creating the Urbanizable Area (UA) District.
1. BACKGROUND
In 2016, the City of Bend and Deschutes County expanded the Urban Growth Boundary
(UGB) to include 2,380 acres and the amended Bend Comprehensive Plan went into
effect (Attachment 1). In order to achieve the Bend Comprehensive Plan goals and
policies adopted as part of the UGB expansion, and reflect state laws requiring
consistency between Comprehensive Plans and zoning, development in the urbanizable
area needs to occur consistent with the underlying Bend Comprehensive Plan
designation. The proposed Urbanizable Area (UA) District (Attachment 2) is intended to
protect the policy intent of the Bend Comprehensive Plan in the urbanizable area until
properties are annexed into city limits. Once they are annexed, the UA District will
cease and the zoning map will be updated with the zoning district that implements the
underlying Bend Comprehensive Plan designation.
City and County staff have been working together since November 2016 on the
proposed zone change and code amendments. On April 11, 2017, the City Council and
the Deschutes County Board of Commissioners (BOCC) held a joint work session and
discussed the proposed zone change and code amendments. The Bend Planning
Commission held a work session on April 24, 2017, and discussed the proposed
amendments and on May 22, 2017, the Bend Planning Commission held a public
hearing and voted (4-0) to recommend that the City Council approve the proposed
amendments. The City Council held a public hearing on June 7, 2017, and conducted
the first reading and on June 21, 2017, the Council conducted a second reading and
approved the amendments.
The Deschutes County Planning Commission held a work session on June 8, 2017 and
reviewed the proposed zone change and code amendments.
On April 26, 2017, staff mailed a Measure 56 notice to 127 potentially affected
landowners in the proposed UA District to notify them of the proposed zone change and
code amendments. A notice of the May 22, 2017, Planning Commission public hearing
and of the June 7, 2017, City Council public hearing was published in the Bend Bulletin on
April 30, 2017. A notice of the BOCC hearing on June 28, 2017 was published in the
Bend Bulletin on June 4, 2017. Staff has received 12 phone calls/emails regarding the
proposed code updates.
II. URBANIZABLE AREA (UA) DISTRICT
The City of Bend is proposing an urban holding zone for lands recently brought into the
UGB, but not yet annexed. The proposed UA District will be codified in both the County
and City codes as Deschutes County Code (DCC) Title 19A and Bend Development
Code (BDC) 2.8. The proposed UA District will provide limited opportunities for housing
and other limited rural uses that will not interfere with future urban development as
contemplated by the Bend Comprehensive Plan. This will help maximize the opportunity
for landowners to realize the full potential of urban development when they annex. It is
important to remember that lands included in the UGB were sought after by landowners
with the goal of converting rural uses to urban uses as it increases development
potential and property values.
The following Table provides more detail about the UA District.
1.
What is it?
The UA District is an urban holding zone.
2.
What is the purpose?
The UA District is intended to preserve Targe areas
of undeveloped or rural land for future urban
development prior to annexation. It also protects
the policy intent of the underlying Bend
Comprehensive Plan designations until the
properties annex into city limits.
Page 2
3. Where does it a I
pp y
To properties in the urbanizable area inside the UGB
but outside the city limits, except for the land
withdrawn from the City of Bend by the County by City
Resolution 2459.
4. Is it new?
Yes. This is the first time the City of Bend has
proposed an urban holding zone.
5. Do other cities in
Deschutes County rely
on urban holding zones?
Yes. The cities of Redmond and Sisters have
urban holding zones for lands within their urban
unincorporated area. 1
6. What do the proposed
amendments include?
The UA District includes permitted land uses such
as single-family detached dwelling units, accessory
dwelling units (ADUs), manufactured homes, home
occupations, farm stands, and bed and breakfast
inns when allowed in the zoning district that
implements the underlying Bend Comprehensive
Plan designation. Uses such as accessory
structures and uses, farm uses, and agricultural
buildings are permitted regardless of the underlying
zoning district that implements the Bend
Comprehensive Plan designation until annexed into
the City of Bend. The District includes lot area (20
acres minimum), dimension (lot coverage, setbacks
and building height) requirements, and additional
development provisions. The proposed
amendments also include new and revised
definitions.
7. Can existing
buildings/uses expand?
Yes, as long as they are lawfully permitted. An
expansion or enlargement of 50 percent or less of
a lawfully permitted use and/or building must
comply with BDC Chapter 4.2, Minimum
Development Standards (MDS) Review, Site Plan
Review and Design Review. For an expansion or
enlargement greater than 50 percent, the
conditional use criteria, standards and conditions
within BDC Chapter 4.4, Conditional Use Permits
will also apply.
1
City of Redmond Urban Holding Zone is DCC 20.12. https://weblink.deschutes.org/public/0/doc/89347/Pagel.aspx
City of Sisters Urban Area Reserve Zone is DCC 21.16. https://weblink.deschutes.org/public/O/doc/4105/Pagel.aspx
Page 3
8. What happens when the
properties annex into city
limits?
The Bend Comprehensive Plan map,
acknowledged in December 2016, changed
Comprehensive Plan designations in the
urbanizable area. When properties annex into the
City, the UA District will cease and the zoning map
will be updated with the zoning district that
implements the underlying Bend Comprehensive
Plan map designation.
III. OTHER AMENDMENTS
The City of Bend is also proposing to add clarifying language and remove antiquated
references in the Bend Urban Area Zoning, Sign and Subdivision ordinances as noted
below under underline and strikeouts.
DCC TITLE 15 BUILDINGS AND CONSTRUCTION
DCC Chapter 15.08. Signs
DCC 15.08.015. Bend Uturban Area Sign Code.
Not with standing any other provision of DCC 15.08, this chapter shall not apply to those
lands lying outside the City limits of Bend and within the Bend Urban Growth Boundary_;
os that term is defined in that certain intergovernmental agreement entered into
County dated February 18, 1098. The City of Bend
Sign Code ' - - - =, ' ` - ' ' - - - - - - - - . . - :: - - - ' - - . and as
may be amended from time to time, shall apply - . - 'e* - - - - - - to those lands
instead.
DCC 15.08.040. Specific Definitions.
"Urban Growth Boundary (UGB)" means the urban growth boundary as adopted by the
City and County and acknowledged by the State, as set forth in the Bend
Comprehensive Plan and as shown on the Bend Comprehensive Plan map.
REPEAL
TITLE 15 08A
Page 4
DCC TITLE 17 SUBDIVISIONS
DCC Chapter 17.04. General Provisions
DCC 17.04.020. Purpose.
D. DCC Title 17 shall not apply to the lands lying outside the city limits of the city of
Bend and within the Bend Urban Growth Boundary_ ,-
certain intergovernmental agreement entered into between the city of Bcnd and tho
County dated February 18, 1998. The city of Bend Subdivision Ordinance, No. NS
and as
supplemented by such other supplementing and/or amending ordinances as might from
time to time be adopted shall apply to those lands instead.
- ---- - -. -- _-- - - --- -- ...
'--
DCC Chapter 17.08. Definitions and Interpretation of Language
DCC 17.08.030. Definitions Generally.
"Urban Growth Boundary (UGB)" means the urban growth boundary as adopted by the
City and County and acknowledged by the State, as set forth in the Bend
Comprehensive Plan and as shown on the Bend Comprehensive Plan map.
REPEAL
TITLE 17 A
No. NS 1349
DCC TITLE 19 BEND URBAN AREA ZONING ORDINANCE
DCC Chapter 19.04. Title, Purpose, Compliance and Definitions
19.04.010. Title.
19.04.020. Compliance with Title Provisions.
19.04.030. Applicability.
19.04.040. Definitions
DCC 19.04.010. Title.
Page 5
DCC Title 19 shall be known as the "Zoning Ordinance" of the Bend Urban Area of
Deschutes County, Oregon and of the land withdrawn from the City of Bend by the
County by City Resolution 2459.
DCC 19.04.030. Applicability.
DCC Title 19 applies to the Bend Urban Area and to the land withdrawn from the City of
Bend by the County by City Resolution 2459. DCC Title 19A applies to lands inside the
UA District.
19.04.040. Definitions.
"Bend urban area" means that area lying insido outside the adopted Bend Urban
Growth Boundary that is shown on the Deschutes County Comprehensive Plan Map as
Urban Area Reserve and outsidc the City of Bond boundaries.
"Urban Growth Boundary (UGB)" means the urban growth boundary as adopted by the
City and County and acknowledged by the State, as set forth in the Bend
Comprehensive Plan and as shown on the Bend Comprehensive Plan map.
"Urbanizable Area (UA) District" means the unincorporated area inside the Urban
Growth Boundary (UGB) but outside the city limits, except for the land withdrawn from
the City of Bend by the County by City Resolution 2459.
Attachments
1. Urbanizable Area Map
2. Ordinance XX
Page 6
