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2017-733-Minutes for Meeting September 18,2017 Recorded 10/20/2017Recorded in Deschutes County CJ2017-733 Nancy Blankenship, County Clerk Commissioners' Journal 10/20/2017 9:59:33 AM �� � �- IIIiIIIiII'�IIIIIIIIII��IIIIII) 2017-733 For Recording Stamp Only Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS Monday, September 18, 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; and Sharon Ross, Board Executive Secretary. One representative of the media was in attendance. CALL TO ORDER: Chair Baney called the meeting to order at 10:00 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: None was offered. CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. DEBONE: Move approval, minus Item 1 as pulled for discussion. HENDERSON: Second. Minutes of Board of Commissioners' Business Meeting September 18, 2017 Page 1 of 5 VOTE: DEBONE: Yes. HENDERSON: Yes. BANEY: Chair votes yes. Motion Carried Consent Agenda Items: 1. Consideration of Board Signature of Resolution #2017-047, Appropriating a New Grant in the Health Services Fund 2. Consideration of Signature on Letter of Resignation from Gary Weaver of the Forest View Special Road District and thanking him for his service 3. Approval of Minutes of the August 30, 2017 Business Meeting 4. Approval of Minutes of the September 6, 2017 Business Meeting 5. Approval of Minutes of the September 6, 2017 Work Session ACTION ITEMS Consent Agenda Item I pulled for discussion: Consideration of Board Signature of Resolution #2017-047, appropriating a New Grant in the Health Services Fund Melissa Rizzo and James Wood, Health Services presented the item for consideration. This item was presented for consideration at the September 13 Work Session and the grant funding was received July 1, 2017 from the state of Oregon. DEBONE: Move approval. HENDERSON: Second. VOTE: DEBONE: Yes. HENDERSON: Yes. BANEY: Chair votes yes. Motion Carried 6. PUBLIC HEARING: Marijuana Production Appeal Chair Baney read the preliminary statement of the hearing. Nicole Mardell, Assistant Planner read the staff report and hearing procedure into the record. No conflicts were declared by the Commissioners and upon hearing no challenges, Chair Baney opened the public hearing. Minutes of Board of Commissioners' Business Meeting September 18, 2017 Page 2 of 5 The request is for an administrative determination for a marijuana production in the Exclusive Farm Use zone at 69188 Goodrich Road, File No. 247-17-00216-LR/247-17- 000217-AD. Ms. Mardell reviewed the next steps for Board consideration. The appellant has requested a continuance of the hearing to October 16. The 150th day deadline is December 29, 2017. Commissioner Henderson requested a copy of the mechanical engineer's letter. Peter Russell, Senior Transportation Planner reviewed the transportation system plan and trip generator calculation. Commissioner Henderson spoke on the use of a federal rule and questions if that is comparable to the marijuana facility activities. Norma Tewalt, applicant and landowner explained she has a letter from the mechanical engineer and she spoke on waste receptacles. She provided a floor plan with the noted locked receptacle. Commissioner Baney asked for the business plan and staff to manage the crop. Mr. and Mrs. Tewalt have owned the property since 1972 and they propose to build a 3,600 square foot building partitioned into rooms to house 2,500 square feet of mature canopy and also bedrooms and bathroom. Lighting is inside of the building with no windows. Security will be inside of the building. They want to grow a specialty pure crop as a family operation. Commissioner DeBone inquired on water delivery traffic. Ms. Tewalt has a letter from Bend Water Hauling, LLC and they have two water trucks for delivery. Ms. Tewalt read a letter regarding the request of the continuance of the hearing and requests that the Board deny a continuation of the hearing. Ms. Tewalt explained they want to work as a mom and pop operation. Jay Casting, licensed mechanical engineer was present for clarification of the odor and noise control. The Deschutes County Ordinance notes the requirement of demonstration of odor and noise control and Commissioner Henderson spoke on the need to have a report to show that demonstration and evidence of that control. Liz Dickson, representing Bob King the appellant. They are requesting a continuance and felt the hearing was not properly noticed. Mr. King could not participate today and wants to speak to the Board. Mr. King's wife has a serious medical condition and was receiving treatment this week. Peter Gutowsky, Senior Planning Manager acknowledged the process with land use applications that are appealed and the obligation of rendering a final decision within 150 days. The approach was to look at availability of the Board of County Commissioners schedule and take into consideration all items necessary to meet all requirements of an appeal. Mr. Gutowsky stated notice was provided to all respective parties. Nicole Mardell commented the proper procedures were followed and notice was provided via mail September 8 and was posted on the website. Minutes of Board of Commissioners' Business Meeting September 18, 2017 Page 3 of 5 Ms. Dickson commented the notice was received via regular mail on September 12 and no email was sent out. Ms. Dickson requested at least the written record be left open and expressed her dissatisfaction in the process. Chair Baney suggested possible interactions for the appellant to participate via telephone. Commissioner Henderson inquired why October 16 was the date for the continuance. It was the closest option for the presence of all three commissioners. Commissioner Henderson is fine with the continuance. Commissioner DeBone noted the upcoming review of the regulations and procedures. Chair Baney explained if the record remains open, she suggests all information would be prepared and submitted for response so there is no additional time needed to review materials. Many people came to today's hearing and may be inconvenienced to return for the continuance. Mr. Arthur Miller approached the Board. He is a permanent resident in the neighborhood. He learned about this and was surprised of the level of resistance. He has reviewed the business plan with the applicant and it sounds exciting. Mr. Miller is amazed there has to be a delay when there should be an opportunity for Mr. King to have access to a telephone. Peter Russell, Senior Transportation Planner explained he has just checked with the Road Department and there are no weight restrictions on Goodrich Road. Commissioner Henderson asked the Community Development Department staff about the permitting process and if demonstrations of control are required. Nick Lelack and Peter Gutowsky will check with the building division and provide written response to the Board. Commissioner DeBone noted the process of County and OLCC regulations. Ms. Tewald and Mr. Castilo approached the Board with additional comments on the experience on the process of land use and the importance of meeting the burden of proof. Upon no further discussion, Chair Baney left both the oral and written record open. The date of continuance is October 16 at 10:00 a.m. OTHER ITEMS: None were offered. ADJOURN: Being no further items to come before the Board, the meeting was adjourned at 11:22 a.m. Minutes of Board of Commissioners' Business Meeting September 18, 2017 Page 4 of 5 DATED this Day of - ? 2017 for the Deschutes County Board of Commissioners. ATTEST: c rding Secretary Tammy Baney, Chair zl�71-, W)A�— Anthony DeBone, Vice Chair Phili G. Hen I son,Commissioner Minutes of Board of Commissioners' Business Meeting September 18, 2017 Page 5 of 5 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 AM, MONDAY, SEPTEMBER 18, 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 Board Signature of Resolution #2017-047, Appropriating a New Grant in the Health Services Fund. 2. Consideration of Signature on Letter of Resignation from Gary Weaver of the Forest View Special Road District and Thanking him for his Service 3. Approval of Minutes of the August 30, 2017 Business Meeting Board of Commissioners Business Meeting Agenda Monday, September 18, 2017 Page 1 of 2 4. Approval of Minutes of the September 6, 2017 Business Meeting 5. Approval of Minutes of the September 6, 2017 Work Session ACTION ITEMS 6. PUBLIC HEARING: Marijuana Production Appeal - 247-17-000723-A - Nicole Mardell, Assistant Planner OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations, ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. ADJOURN To watch this meeting on line, go to: www.deschutes.org/meetings Please note that the video will not show up until recording begins. You can also view past meetings on video by selecting the date shown on the website calendar. Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.org/meetingcalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Business Meeting Agenda Monday, September 18, 2017 Page 2 of 2 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 September 18, 2017 DATE: September 13, 2017 FROM: Nicole Mardell, Community Development, TITLE OF AGENDA ITEM: PUBLIC HEARING: Marijuana Production Appeal - 247-17-000723-A PUBLIC HEARING ON THIS DATE?: Yes BACKGROUND AND SUMMARY: The applicant received administrative approval of an Administrative Determination to establish a marijuana production facility in the Exclusive Farm Use (EFU) Zone. The administrative decision issued by staff was appealed. The Board of County Commissioners called up the matter for their review on August 28th, 2017. The hearing is scheduled for September 18, 2017. ATTENDEES: Nicole Mardell, Assistant Planner, Peter Gutowsky, Planning Manager, Anthony Raguine, Senior Planner RECOMMENDATION & ACTION REQUESTED: Hold public hearing to consider appeal of Administrative Decision approving recreational marijuana production in the EFU Zone. tr 1 P Community Development Department �.a Planning Division Building Suety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 338-6575 Fax: (541) 385-1764 http://www,deschutes.org/cd STAFF MEMORANDUM To: Board of County Commissioners From: Nicole Mardell, Assistant Planner Date: September 13, 2017 Re: Public Hearing on an appeal of an Administrative Determination for Marijuana Production in the Exclusive Farm Use Zone at 69188 Goodrich Road. File No. 247- 17 -000216 -LR/ 247 -17 -000217 -AD. BACKGROUND AND TIMELINE The application was submitted on March 27, 2017 and determined incomplete on April 25, 2017. The applicant submitted additional materials and the application was determined complete on August 1, 2017. An administrative decision approving the application was mailed on August 16, 2017 and was subsequently appealed on August 25, 2017. The 150' day on which the county must take final action on this application is December 29, 2017. This memorandum provides a summary of the items on appeal and staff responses. APPELLANT OBJECTIONS -- TRANSPORTATION Within the appeal materials submitted, the appellant raised concern over the applicability of transportation analysis in the review of Marijuana Production applications. Peter Russell, Deschutes County Senior Transportation Planner has provided a response to the appellant's concerns below: The appellant in its August 25, 2017, appeal has raised several transportation issues ranging from not complying with Oregon Revised Statute (ORS) for reasonable regulations, traffic generation rates for marijuana grow operations, inconsistency with the County's adopted Transportation System Plan (TSP), which is an element of the Comprehensive Plan, and not conforming with the Transportation Planning Rule (TPR). Staff finds all these arguments are without merit. The identified issues are discussed below generally in the order presented by the appellant. 1. County code omits traffic analysis and is thus inconsistent with ORS 4758.340(2) Deschutes County Code (DCC) at 18.116.330(B)(8) only requires a marijuana production site to prove it has legal access to a constructed public, County, or State road or have access from a private road or easement with written permission to use that private road or easement. Board Ordinance 2016-019 established the County's reasonable regulations. Quality Services Perfion 'ed with Prime That ordinance was not appealed. The time to raise the argument of whether the Board's ordinance was inconsistent with ORS 475B.340(2) has passed. Appellant is making an unpermitted collateral attack on the County's adopted ordinance. Additionally, DCC 18.116.330(B)(8) only applies to marijuana production facilities of more than 5, 000 square feet of mature canopy. The applicant's proposal is for a mature canopy of 2,500 square feet so the requirements of DCC 18.116.330(B)(8) are inapplicable. However, for purposes of discussion, staff would point out the County's traffic studies requirements are not germane to this land use. The traffic thresholds for analysis in DCC 18.116.310 are triggered by two types of land use applications. The first is a plan amendment or zone change; traffic must be analyzed to comply with Goal 12 as applied via Oregon Administrative Rule (OAR) 660-012-0060, otherwise known as the Transportation Planning Rule (TPR). The second is a land use application requiring site plan review (DCC 18.124) as DCC 18.124.080(J) cites to the traffic requirements of DCC 18.116.310. This land use application is neither a plan amendment/zone change nor a site plan review. Thus, no traffic analysis is required under either State OAR or the local development code. Staff would point out the County does not require traffic analysis from any other agricultural operation (alfalfa, vineyards, hops, specialty crops, or other plants grown indoors such as vegetables, flowers, spices, etc.) and thus is treating marijuana consistent with other crops. Exclusive Farm Use (EFU) zoned properties are expected to produce agricultural -related trips from outright permitted uses. 2. Trip generation assumptions for marijuana production sites The County uses the most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Manual. While the ITE has approximately 170 land use categories, marijuana production facility, aka marijuana grow, is not one of them. Planning and Road Department staff reviewed the ITE manual and found Warehouse (Land Use 150) is the closest analog. Warehouse generates 3.56 weekday trips' per 1,000 square feet and 0.32 p.m. peak hour2 trips per 1,000 square feet. The County uses this rate when assessing transportation system development charges (SDCs). For the marijuana grow under appeal the application is proposing a 60' X 60' building (3,600 square feet) [that] would be used for marijuana operations. The building would contain 2,500 square feet of mature canopy. The resulting trip generation would be 12.8 daily trips (3.56 X 3.6). DCC 18.116.310(C)(3)(a) states no further traffic analysis is needed if there are 50 or less new weekday trips generated from the use. Thus, even if the County did require traffic analysis for marijuana production, the proposed land use would not meet the minimum threshold for additional traffic analysis. Furthermore, traffic mitigation is based on p.m. peak hour trips. The ITE indicates Warehouse generates 0.32 p.m. peak hour trips per 1,000 square feet, which in this instance would result in 1.15 p.m. peak hour trips (0.32 X 3.6) The proposed use would have a de minimis effect on Goodrich Road. I A trip end is whenever a vehicle uses an access to either leave the roadway to enter the property or leave the property to enter the roadway. A vehicle entering and leaving thus would generate two trips. 2 The p.m. peak hour is 4-6 p.m. 247 -17 -000216 -LR, 247 -17 -000217 -AD (247-17-000723-A) Page 2 of 8 The appellant states they have allegedly observed 15 vehicles per day at a marijuana production site. Each vehicle would likely enter and exit the property, which is two trips per vehicle for a total of 30 daily trips. That trip amount is still below the County's minimum standard of 50 daily trips to require a traffic analysis. Again, the above is simply for discussion purposes as DCC 18.116.330(8)(8) only requires the County assess the legality of the access, not the operational capacity of a roadway; however, this section of code does not apply given the size of the proposed marijuana production. 3. Consistency with TSP The appellant claims the lack of traffic analysis is somehow inconsistent with the County's TSP. The appellant errs. Appellant argues the adopted TSP is voided because marijuana traffic was not accounted for in the traffic growth projections required under OAR 660-12-005(32) as that use did not exist in 2012 when the TSP was adopted. Appellant argues the TSP should have been amended to analyze the transportation effects of marijuana once that crop was legalized. However, the transportation model assumed trip generation amounts based on EFU zoning and those uses which are allowed outright. The zoning has not changed and marijuana is an agricultural product allowed outright therefore the model's predictions remain valid. Trip generation is based on broad assumptions of the land uses allowed in the zone itself, which in EFU are agricultural. The appellant has not entered any evidence prepared by a professional engineer or transportation planner versed in industry practices regarding traffic analysis (trip generation, employee numbers and shifts, hours of operation) that would demonstrate the TSP is invalid. TSP Goal 1 The appellant claims the application violates TSP Goal 1 to "achieve an efficient, safe, convenient, and economically viable transportation system" as there is no traffic analysis required for marijuana production. Staff points out when the TSP modeled the County's road system for 2030 volumes, Goodrich Road was not found to be over capacity or nearing capacity. The County's performance standard of a roadway segment is Level of Service (LOS) D, which equates to up to 9,600 average daily traffic (ADT). Appellant claims on page 6 that "15 or more trips per day, at minimum, can have significantly degrading effects on a transportation system." Appellant provides no factual data that adding 15 daily trips will cause Goodrich Road to exceed 9,600 ADT now or in the TSP's horizon year of 2030. Staff points out the most recent traffic count for Goodrich Road was 2016 with 631 ADT. Staff does not expect a fifteen -fold increase on this road by 2030. TSP Goal 2 The appellant notes that Goal 2 states the County TSP "...shall be continually updated in a timely fashion..." The appellant asserts that this goal has been violated because the alleged traffic effects of marijuana production have not been assessed. Again, staff disagrees as there has be no change in the underlying zoning. Marijuana production is occurring on lands zoned EFU and the trip generation continues to occur at levels commensurate with farming. Appellant does not provide any factual data from a transportation professional demonstrating otherwise. TSP Goal 4 247 -17 -000216 -LR, 247 -17 -000217 -AD (247-17-000723-A) Page 3 of 8 The appellant claims Goal 4 to establish "a transportation system supportive of geographically distributed and diversified economic base, while also providing a safe, efficient network for residential mobility and tourism" has not been met due to lack of traffic analysis related to marijuana. Appellant provides no factual data from a transportation professional that roadway segments serving marijuana production sites or driveways accessing marijuana sites have any crash history indicative of a systematic problem. Appellant misunderstands the intent of broad policy goals vs. site-specific operational analysis. One could argue marijuana production as a newly legalized crop is consistent with the goal of a diversified economic base. TSP Goal 4.6 The appellant claims the lack of traffic analysis is inconsistent with Goal 4.6 where the County "shall manage the development process to obtain adequate street right of way and improvements commensurate with the level and impact of development... new development shall provide traffic impact to assess these impacts..." Goodrich Road is an existing County road with 60 -feet of right of way, which meets the standard for its functional classification. As described above, the site would produce roughly 13 daily trips and two would be in the p.m. peak hour. Given the 631 ADT on Goodrich in 2016, the road would not meet the warrants for any improvements such as left turn lanes or right turn lanes into the property. There simply is not enough traffic on Goodrich Road to require separating turning vehicles from through traffic. In other words, the traffic effects of this land use are minimal. Appellant does not provide any factual data from a transportation professional demonstrating otherwise. TSP Goal 10 The appellant claims the lack of traffic analysis is inconsistent with Goal 10 to "maintain the current arterial and collector system in the County and prevent degradation of the capacity of the system." Staff points out Goodrich Road is classified as a Local road, not an arterial or collector. Further, the TSP model was based on current zoning and the zoning in this land use application remains unchanged, as it has for all other marijuana production applications. Modeling does not distinguish between crops when it comes to trip generation rates for EFU lands any more than it distinguishes between types of cuisines for fast food restaurants. 4. Miscellaneous transportation issues The appellant makes periodic references to public, health, safety and welfare and states DCC 18.116.330(6)(8) puts the traveling public at risk by not requiring traffic analysis. Again, DCC 18.116.330(8)(8) does not apply to this application due to the size of the mature canopy being less than 5, 000 square feet. The grow site is located at 69188 Goodrich Road. The Road Department in its comments on the land use application requested the property owner apply for a driveway permit. The Road Department would review the application to access Goodrich to ensure sight distance standards are met. The permit process, which includes a review of the location of the access, protects the health, safety, and welfare of the traveling public. The property currently accesses Goodrich Road via a private drive to the property to the south, which is also owned by the applicant. Conclusion Staff finds no credible transportation arguments in the appellant's submitted nor is there any factual evidence demonstrating this application would adversely affect Goodrich Road. 247 -17 -000216 -LR, 247 -17 -000217 -AD (247-17-000723-A) Page 4 of 8 APPELANT OBJECTIONS — DCC 18.116.330 A. Chapter 18.116, Supplementary Provisions Section 18.116.330, Marijuana Production, Processing, and Retailing. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 10. Odor. As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. C. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: L Consist of one or more fans. The tan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. Appellant's Objection: In the Notice of Appeal and supplemental materials, the attorney for the appellant states: The instant application provides a conclusive [sic] analysis from an engineer that merely surmises the odor will be controlled. To Appellant Bob King's knowledge, there is not a single marijuana grow operation in Deschutes County that adequately controls its odor. The instant application provides no reason to believe this use will be engineered differently. The application, as submitted, does not meet the criterion. The application should be denied. 247 -17 -000216 -LR, 247 -17 -000217 -AD (247-17-000723-A) Page 5 of 8 Staff Note: The applicant submitted a letter dated March 20, 2017 from Registered Professional Engineer Jay Castino stating, "an activated carbon (charcoal) filter on the exhaust system will provide the odor control. When the HVAC system goes into economizer mode, the activated carbon filters on the exhaust system will scrub the exhaust air. The activated carbon filters will be maintained and/or replaced per the manufacturer's suggested service intervals. This odor control system will not reasonably interfere with neighbors' use and enjoyment of their property." Staff added an ongoing condition of approval to the decision to ensure ongoing compliance with the above requirements. The appellant did not provide any specific detail on how the mechanical engineer's letter does not meet this criterion. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is exempt from protections of DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is permitted. Appellant's Objection: In the Notice of Appeal and supplemental materials, the attorney for the appellant states: The instant application provides the same conclusive analysis from an engineer that merely surmises the noise will be controlled. To appellant Bob King's knowledge, there is not a single marijuana grow operation in Deschutes County that adequately controls its noise. The instant application provides no reason to believe this use will be engineered differently. The application, as submitted, does not meet the criterion. The application should be denied. Staff Note: The applicant has submitted a letter dated March 20, 2017 from Registered Professional Engineer Jay Castino stating, "The HVAC and odor control systems do not operate in a sustained manner. They operate intermittently, similar to the function of a normal residential furnace or heat pump. Further, the equipment specifications and our calculations indicate that the sound level will not be above 30 dba, as measured from any property line, between 10 pm and 7 am". Staff added a condition of approval to ensure compliance with this criterion. The appellant did not provide any specific detail on how the mechanical engineer's letter does not meet this criterion. 13. Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or 247 -17 -000216 -LR, 247 -17 -000217 -AD (247-17-000723-A) Page 6 of 8 b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider; or C. Proof from the Oregon Water Resources Department that the water to be used is from a source that does not require a water right. Appellant's Objection: In the Notice of Appeal and supplemental materials, the attorney for the appellant states: The applicant proposes to have water hauled on site to supply the needs of the greenhouses proposed. There is no detail provided regarding the volume required, the number of truck trips and the frequency of those truck trips, the size and weight of the trucks to be used. Without this information, impact of this method of providing water cannot accurately be evaluated. This information should be required, analyzed, and the impact on others should be determined before this application is properly approved. Staff Note: The applicant provided a letter dated June 6, 2017 from Bend Water Hauling LLC stating an account has been set up and water will be delivered to the subject property. The letter includes the contact information for Kimberlee Nunez, Dispatcher/Member of Bend Water Hauling LLC. The applicant also supplied a copy of a Marijuana Producer Exempt Water Form from ORWD stating that water rights are not to be used for the marijuana production operation, and that the applicant will utilize a 3,000 gallon water storage tank with water to be delivered by Bend Water Hauling LLC. 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. Appellant's Objection: In the Notice of Appeal and supplemental materials, the attorney for the appellant states: Applicant has submitted a revised "will serve" letter for electrical service that is more detailed. This detail is appreciated. Staff Note: Staff finds this is not an item for appeal but rather support that the applicant has met the above mentioned criterion for utility verification. 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). Appellant's Objection: In the Notice of Appeal and supplemental materials, the attorney for the appellant states: Applicant's assurance that they will perform as required is insufficient. A site plan showing the location, type, access, and security should be required. This site is not fenced. The most shielded access to it is by way of Appellant Bob King's property to 247 -17 -000216 -LR, 247 -17 -000217 -AD (247-17-000723-A) Page 7 of 8 the north. It is insufficient to merely assert that this criterion will be satisfied. At a minimum, the Applicant should be required to provide the above information, and it should be evaluated for compliance with the criterion. Without it, the application should be denied. Staff Note: In the applicant's response to the incomplete letter dated July 20, 2017, the applicant provided a floor plan of the agricultural building to be used for marijuana production. On that floorplan, the secure waste disposal area is identified as being located in a 100 square -foot room inside the building. Staff added a condition of approval to ensure compliance. NEXT STEPS The Board of County Commissioners may choose to move forward on the application as follows: 1. The Board may choose to close both the oral and written record. 2. The Board may choose to close the oral record and leave the written record open. 3. The Board may choose to continue the Public Hearing to a time and date certain. Staff has been contacted by the Appellant's legal counsel and understands the appellant plans to request a continuance. Staff notes the 150th day upon which the county must issue a final local land use decision is December 29, 2017. Attachments: -Findings & Decision -Appeal Materials 247 -17 -000216 -LR, 247 -17 -000217 -AD (247-17-000723-A) Page 8 of 8 FILE NUMBERS: APPLICANT/OWNER: Community development Department Planning Division Building Safety Division Environmental Soits Division P.O. Box 6005 117 NW Lafayette avenue Bend, Oregon 97788-6805 Phone: (541) 388-6575 Fax: (541) 385-1764 http://www.deschutes.org/cd FINDINGS & DECISION 247 -17 -000216 -LR/ 247 -17 -000217 -AD Norma and Richard Tewalt 69188 Goodrich Road Sisters, OR 97759 PROPOSAL: The applicant is requesting approval of an Administrative Determination to establish a marijuana production facility in the Exclusive Farm Use (EFU) Zone. STAFF CONTACT: Nicole Mardell, Assistant Planner I. APPLICABLE CRITERIA Title 18 of the Deschutes County Code, the County Zoning Ordinance Chapter 18.16, Exclusive Farm Use Zones Chapter 18.116.330, Marijuana Production, Processing, and Retailing Title 22 of the Deschutes County Code, the Development Procedures Ordinance II. BASIC FINDINGS A. LOCATION: The subject property has an assigned address of 69188 Goodrich Road, and is identified on County Assessor Tax Map 15-11-05, as Tax Lot 303. B. LOT OF RECORD: The property is a legal lot of record as it was originally created by a Warranty Deed dated March 5, 1974 and recorded as Volume 203, Page 387 in the Deschutes County Clerk's Book of Records. On December 29, 1976 a second Warranty Deed was recorded as Volume 242, Page 391 of the Deschutes County Book of Records. This Warranty Deed removed the portion of the property that is now recognized as Tax Lot 305 from the original parcel. This division occurred prior to the adoption of the county's subdivision and partition ordinances, therefore Tax Lot 303 and Tax Lot 305 are two individual legal lots of record. C. ZONING: Exclusive Farm Use -Sisters Cloverdale Subzone (EFU). Qrxrxlity Services Performed iv tlr Pride D. SITE DESCRIPTION: The subject parcel is 9.39 acres and gains access from Goodrich Road through a private access drive on a property they own to the south of the site. The property is developed with a single-family home, garage and a farm building. The property has a sloping grade, with an approximate 80 -foot change in elevation from east to west. E. SURROUNDING LAND USE: All properties surrounding the site are zoned EFU. The properties to the west, north and northwest are agricultural uses and are receiving farm tax deferral. The property to the northeast, and east are being used as single family residences and are not receiving farm tax deferral. The property to the south is owned by the applicant, under farm tax deferral, and currently vacant with evidence of farming. F. PROPOSAL: The applicant is requesting approval of an Administrative Determination to establish a commercial marijuana production facility in the Exclusive Farm Use (EFU) zone. The applicant is proposing to construct a 3,600 structure with a maximum mature canopy area of 2,500 square feet. G. LAND USE HISTORY: According to Deschutes County Community Development records, the property was the subject of a code enforcement case (C93-281) for the construction of a garage with living quarters located above. The case was resolved on March 8, 1994. H. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice and received comments from the following agencies: Deschutes County Building Division: The Deschutes County Building Safety Divisions code mandates that Access, Egress, Setback, Fire & Life Safety, Fire Fighting Water Supplies, etc. will be specifically addressed during the appropriate plan review process with regard to any proposed structures and occupancies. Accordingly, all Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. Deschutes County Senior Transportation Planner, Peter Russell: The comments are based on the original submittal for two structures. The applicant will contact Peter Russell, Transportation Planner for a revised estimate on System Development Charges (SDCs). I have reviewed the transmittal materials for 247-17-000216-LR/217-AD for a marijuana production (growing) operation in 4,896 square feet of existing and future buildings in the Exclusive Farm Use (EFU) zone at 69188 Goodrich Road, aka 15-11- 05, Tax Lot 303. The most recent edition of the Institute of Traffic Engineers (ITE) Trip Generation Handbook does not contain a category for marijuana production. In consultation with the Road Department Director and Planning staff, the County has determined the best analog use is Warehouse (Land Use 150) based on the storage requirements and employees of this activity. Warehouse generates daily trips at a rate of 3.56 trips per 1,000 square feet. The application states an existing 36'X 36' building or 1,296 square feet and a future 60'X 60' building, or 3,600 square feet totaling 4,896 square feet (1,296 + 3,600) to be used as marijuana production. The resulting trip rate would 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 2 of 16 be 17.4 daily trips (3.56 X 4.896). Deschutes County Code (DCC) at 18.116.310(C)(3)(a) states no further traffic analysis is needed if there are 50 or less new weekday trips generated from the use. The proposed land use will not meet this minimum threshold for additional traffic analysis. Board Resolution 2013-020 sets a transportation system development charge (SDC) rate of $3,852 per p.m. peak hour trip. The ITE indicates Warehouse generates 0.32 p.m. peak hour trips per 1,000 square feet, which in this instance would result in 0.41 p.m. peak hour trips for Phase I (0.32 X 1.296) and 1.15 p.m. peak hour trips for Phase II (0.32 X 3.6). The two phases total 1.56 p.m. peak hour trips (0.41 + 1.15). Thus the applicable SDC would be $6,009 (1.56 X $3,852). The SDC is due prior to issuance of certificate of occupancy; if a certificate of occupancy is not applicable, then the SDC is due within 60 days of the land use decision becoming final. Deschutes County Road Division: Applicant will need to acquire an access permit on Goodrich Road for this parcel. I. PUBLIC COMMENTS: The Planning Division mailed a written notice of this action to property owners within 750 feet of the subject property on April 12, 2017. The applicant provided an affidavit stating they posted a land use action sign on their property where it could clearly be seen from Goodrich Road on April 3, 2017 for a total of 10 days. Staff received 2 comments in favor of the proposal and 23 comments in opposition of the proposal. The following concerns were expressed in comments which staff received from the public. In summary, staff has attempted to capture most impacts, comments, and concerns identified by the public in written comments received prior to the date of this decision: 1. The applicant's sign was not posted on Goodrich Road for the required 10 days. 2. The applicant's site plan is not to scale. 3. The production facility may adversely affect neighboring problems due to odor and noise. 4. Concern that the existing barn on the property may be used for marijuana production without approval. 5. Proximity to Heart of Oregon Youthbuild Program Center 6. Lack of security fencing around the production building and property. 7. Existing home occupation on the property (Realty Company) not referenced in application. 8. Concern that the marijuana production operation may contaminate groundwater, septic system, and drainfield. 9. Approval would set a precedent for other marijuana production facilities in the area. 10. Negative impacts of pesticide use. 11. Previous code enforcement case on the property. 12. Impact of marijuana on neighboring pets and livestock. 13. Federal legality of marijuana production. 14. Increased traffic. 15. Increased crime and threat to safety of neighbors. 16. Decreased property values. 17. Potential negative effects on children living in the area. 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 3 of 16 Staff Comment: The Deschutes County Code (DCC) does not allow the Planning Division to approve or deny this application based on the concerns (7 through 17) above. Applicable criteria of the DCC are addressed in the findings below. J. REVIEW PERIOD: This application was submitted on March 27, 2017. It was determined incomplete on April 25, 2017. The applicant has supplied the required supplemental information and was deemed complete on August 1, 2017. The 150th day on which the county must take final action on this application is December 29, 2017. III. CONCLUSIONARY FINDINGS A. Chapter 18.16, Exclusive Farm Use Zones Section 18.16.020. Use Permitted Outright. The following uses and their accessory uses are permitted outright: S. Marijuana production, subject to the provisions of DCC 18.116.330. FINDING: The proposed recreational marijuana production facility is an allowable use permitted outright in the EFU zones, subject to the provisions of DCC 18.116.330, which are reviewed below. 2. 18.16.060. Dimensional Standards. E. Building height. No building or structure shall be erected or enlarged to exceed 30 feet in height, except as allowed under DCC 18.120.040. FINDING: The applicant is proposing to construct an accessory structure with a maximum height of 23 feet. Staff finds this criterion is met. 3. Section 18.16.070. Yards. A. The front yard shall be a minimum of.- 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector street, and 100 feet from a property line fronting on an arterial street. B. Each side yard shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with side yards adjacent to property currently employed in farm use, and receiving special assessment for farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with a rear yard adjacent to property currently employed in farm use, and receiving special assessment for farm use, the rear yard shall be a minimum of 100 feet. 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 4 of 16 D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: The property maintains road access to Goodrich Road through a private drive shared with the property to the south, also owned by the applicant. Goodrich Road is designated as a local street and requires a front yard setback of 40 feet. The submitted plot plan indicates the structure will be set back over 1,000 feet from the western front property line. Staff received a public comment regarding the accuracy of the setbacks noted on the site plan submitted as part of the response to the incomplete letter dated July 20, 2017. Staff finds that the site plan is to scale and "zoomed in" on the building site to provide greater detail. Staff utilized the Dial Property Information GIS Map to measure this distance and found the distance to be accurate given the context of the provided site plan. The proposal is not for a non-farm dwelling, therefore, the required side and rear yard setbacks are 25 feet. The submitted plot plan indicates a northern side yard setback of 110 feet, a southern side yard setback of 150 feet, and an eastern rear yard setback of over 200 feet. The required yard setbacks of subsections A, B, and C are met. Any greater setbacks required by applicable building or structural codes will be addressed during building permit review. B. Chapter 18.116, Supplementary Provisions Section 18.116.330, Marijuana Production, Processing, and Retailing. A. Applicability. Section 18.116.330 applies to: 1. Marijuana Production in the EFU, MUA-10, and RI zones. 2. Marijuana Processing in the EFU, MUA-10, TeC, TeCR, TuC, Tul, Rl, and SUBP zones 3. Marijuana Retailing in the RSC, TeC, TeCR, TuC, Tul, RC, Rl, SUC, SUTC, and SUBP zones. 4. Marijuana Wholesaling in the RSC, TeC, TeCR, TuC, RC, SUC, and SUBP zones. FINDING: The applicant has proposed Marijuana Production in the EFU zone. Therefore this section applies. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 1. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. FINDING: The property is a legal lot of record as it was originally created by a Warranty Deed dated March 5, 1974 and recorded as Volume 203, Page 387 in the Deschutes County Clerk's Book of Records. On December 29, 1976 a second Warranty Deed was recorded as 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 5 of 16 Volume 242, Page 391 of the Deschutes County Book of Records. This Warranty Deed removed the portion of the property that is now recognized as Tax Lot 305 from the original parcel. This division by conveyance occurred prior to the County's adoption of its partition and subdivision ordinances, therefore Tax Lot 303 and Tax Lot 305 are two individual legal lots of record. Tax Lot 303 is 9.39 acres in size. This criterion is met. 2. Indoor Production and Processing. a. In the MUA-10 zone, marijuana production and processing shall be located entirely within one or more fully enclosed buildings with conventional or post framed opaque, rigid walls and roof covering. Use of greenhouses, hoop houses, and similar non- rigid structures is prohibited. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. C. In all zones, marijuana production and processing are prohibited in any outdoor area. FINDING: The subject property is within the EFU zone. The applicant is proposing to construct a 3,600 -square foot accessory structure, in which all production will occur. The proposal complies with this criterion. As an ongoing condition of approval, marijuana production is prohibited in any outdoor area. 3. Maximum Mature Plant Canopy Size. In the EFU zone, the maximum canopy area for mature marijuana plants shall apply as follows: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres to less than 20 acres in lot area: 5,000 square feet. The maximum canopy area for mature marijuana plants may be increased to 10,000 square feet upon demonstration by the applicant to the County that: i. The marijuana production operation was lawfully established prior to January 1, 2015; and ii. The increased mature marijuana plant canopy area will not generate adverse impact of visual, odor, noise, lighting, privacy or access greater than the impacts associated with a 5,000 square foot canopy area operation. C. Parcels equal to or greater than 20 acres to less than 40 acres in lot area: 10,000 square feet. d. Parcels equal to or greater than 40 acres to less than 60 acres in lot area: 20,000 square feet. e. Parcels equal to or greater than 60 acres in lot area: 40,000 square feet. 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 6 of 16 FINDING: The applicant has proposed a maximum of 2,500 square feet in mature plant canopy area, as allowed under Section (a) for properties from 5 acres to less than 10 acres in lot area. The subject property is 9.39 acres in size. The applicant submitted a floor plan that shows the floorplan of the 3,600 -square foot building. The area designated to hold mature canopy is approximately 2,400 square feet in size. This criterion will be met. 4. Maximum Building Floor Area. In the MUA-10 zone, the maximum building floor area used for all activities associated with marijuana production and processing on the subject property shall be: a. Parcels from 5 acres to less than 10 acres in lot area: 2,500 square feet. b. Parcels equal to or greater than 10 acres: 5,000 square feet. FINDING: The subject property is not located in the MUA-10 Zone. This criterion does not apply. 5. Limitation on License/Grow Site per Parcel. No more than one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production or Oregon Health Authority (OHA) registered medical marijuana grow site shall be allowed per legal parcel or lot. FINDING: The proposed use includes only one (1) Oregon Liquor Control Commission (OLCC) licensed marijuana production site. This criterion will be met. 6. Setbacks. The following setbacks shall apply to all marijuana production and processing areas and buildings: a. Minimum Yard Setback/Distance from Lot Lines: 100 feet. b. Setback from an off-site dwelling: 300 feet. For the purposes of this criterion, an off-site dwelling includes those proposed off-site dwellings with a building permit application submitted to Deschutes County prior to submission of the marijuana production or processing application to Deschutes County. C. Exception: Any reduction to these setback requirements may be granted by the Planning Director or Hearings Body provided the applicant demonstrates the reduced setbacks afford equal or greater mitigation of visual, odor, noise, lighting, privacy, and access impacts. FINDING: The submitted plot plan indicates the accessory structure is 100 feet or greater from all lot lines and 300 feet from all off-site dwellings. Staff finds this criterion will be met. 7. Separation Distances. Minimum separation distances shall apply as follows: 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 7 of 16 a. The use shall be located a minimum of 1000 feet from: L A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school, iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and V. National monuments and state parks. b. For purposes of DCC 18.116.330(B)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. C. A change in use of another property to those identified in DCC 18.116.330(B)(7) shall not result in the marijuana producer or marijuana processor being in violation of DCC 18.116.330(B)(7) if the use is: L Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. FINDING: The applicant stated that none of the uses or property types included in subsection 7 are within 1,000 feet of the proposed site plan. Staff finds there are eleven properties wholly or partially within 1,000 feet of the subject property and within Deschutes County boundaries. According to Deschutes County GIS, none of these properties are in a use described in this section or are subject to subsection (c). In the public comments received, there was concern that the proposed structure would be within the setback from the Heart of Oregon Corps YouthBuild program center. The applicant stated in the response to the incomplete letter that the Heart of Oregon Corps YouthBuild program center is 5,106 feet from the production barn which staff confirmed via Deschutes County GIS. These criteria will be met. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards [... ] 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 8 of 16 FINDING: The applicant proposes a maximum mature canopy size of 2,500 square feet. These criteria do not apply. 9. Lighting. Lighting shall be regulated as follows: a. Inside building lighting, including greenhouses, hoop houses, and similar structures, used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. b. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. C. Light cast by exterior light fixtures other than marijuana grow lights shall comply with DCC 15. 10, Outdoor Lighting Control. FINDING: In an email dated June 27, 2017 the applicant stated that "lighting for production operations inside of new construction are contained in rooms with walls that restrict lighting from projecting outdoors". The applicant also stated that all exterior lighting fixtures will be installed in conformance with DCC 15.10, Outdoor Lighting Control. Staff adds the following ongoing conditions of approval to ensure compliance with the above section: Inside building lighting used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light -emitting part. The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. 10. Odor. As used in DCC 18.116.330(6)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. C. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall. L Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 9 of 16 (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained in working order and shall be in use. FINDING: The applicant has submitted a letter from Registered Professional Mechanical Engineer Jay Castino, dated March 20, 2017. The letter states the production building will use an activated carbon (charcoal) filter within a conventional HVAC system to minimize all odor. Mr. Castino states the odor control system will not reasonably interfere with neighbors' use and enjoyment of their property. The topic of odor was of much concern in the public comments received by staff. A request was made for a comprehensive and detailed report to be submitted regarding the odor and noise management system. As described previously, an explanation and diagram of the odor mitigation system has already been submitted. As an ongoing condition of approval, proposed odor control system must at all times prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. 11. Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is exempt from protections of DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is permitted. FINDING: The applicant has submitted a letter from Registered Professional Mechanical Engineer Jay Castino, dated March 20, 2017. The letter states the HVAC and odor control systems used in the production facility will not operate in a sustained manner, but rather intermittently. This is similar to the function of a normal residential furnace or heat pump and will not exceed 30 dba in noise volume as measured from any property line between 10 pm and 7 am. Staff finds the Engineer's statements satisfy the requirements of this section. These criteria can be met. As an ongoing condition of approval, sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. 12. Screening and Fencing. The following screening standards shall apply to greenhouses, hoop houses, and similar non - 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 10 of 16 rigid structures and land areas used for marijuana production and processing: a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. b. Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc., and shall be subject to DCC 18.88, Wildlife Area Combining Zone, if applicable. C. Razor wire, or similar, shall be obscured from view or colored a muted earth tone that blends with the surrounding natural landscape. d. The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. FINDING: The applicant is proposing the construction of a rigid, framed building and the property is not located in the landscape management combining zone. The applicant is not proposing any new fencing. Staff has added an ongoing condition of approval regarding the addition of fencing in the future and screening requirements. The existing tree and shrub cover shall be retained to the maximum extent possible to provide screening. This condition does not prohibit maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. 13. Water. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or b. A statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider; or C. Proof from the Oregon Water Resources Department that the water to be used is from a source that does not require a water right. FINDING: Bend Water Hauling LLC has provided a "will serve" letter dated June 6, 2017 stating they are willing to deliver potable water to the property. This criterion is met. 14. Fire protection for processing of cannabinoid extracts. Processing of cannabinoid extracts shall only be permitted on properties located within the boundaries of or under contract with a fire protection district. 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 11 of 16 FINDING: No processing is proposed, therefore this section does not apply. 15. Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. FINDING: Central Electric Cooperative, Inc (CEC) has provided two "will serve" letters. The first is dated February 9, 2017 and states that the property can generally be served by CEC. The second letter dated June 1, 2017 provides more detail stating that CEC is willing and able to serve the area and the proposed cannabis grow operation. This criterion is met. 16. Security Cameras. If security cameras are used, they shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC or the OHA. FINDING: The applicant stated all security cameras will be directed to record only the subject property except as required to comply with requirements of the OLCC. 17. Secure Waste Disposal. Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or OHA Person Responsible for the Grow Site (PRMG). FINDING: The applicant stated in the burden of proof that a secure waste receptacle will be located within the production building. This criterion is met. 18. Residency. In the MUA-10 zone, a minimum of one of the following shall reside in a dwelling unit on the subject property. a. An owner of the subject property; b. A holder of an OLCC license for marijuana production, provided that the license applies to the subject property; or C. A person registered with the OHA as a person designated to produce marijuana by a registry identification cardholder, provided that the registration applies to the subject property. FINDING: The subject property is not in the MUA-10 zone. This section does not apply. 19. Nonconformance. All medical marijuana grow sites lawfully established prior to June 8, 2016 by the Oregon Health Authority shall comply with the provisions of DCC 18.116.330(B)(9) by September 8, 2016 and with the provisions of DCC 18.116.330(B)(10-12, 16, 17) by December 8, 2016. 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 12 of 16 FINDING: The proposal is to establish a new recreational production facility. The applicant does not have an existing medical marijuana grow site. Therefore this criterion does not apply. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited. L A new dwelling used in conjunction with a marijuana crop; ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(o), used in conjunction with a marijuana crop; iii. A commercial activity, as described in ORS 215.213(2)(c) or 215.283(2)(a), carried on in conjunction a marijuana crop; and iv. Agri -tourism and other commercial events and activities in conjunction with a marijuana crop. C. In the EFU, MUA-10, and Rural Industrial zones, the following uses are prohibited on the same property as marijuana production: L Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. V. Public Parks. vi. Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. FINDING: As an ongoing condition of approval, the uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as Marijuana Production is conducted on the site. D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 13 of 16 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. C. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). FINDING: Compliance with the annual reporting obligation of this section is required. The applicant states they will comply with these requirements. As an ongoing condition of approval, the annual reporting requirements of DCC 18.116.330(D) shall be met. IV. CONCLUSION Based on the foregoing Basic and Conclusionary Findings, staff finds that the proposed marijuana production facility can comply with the applicable standards and criteria of the Deschutes County zoning ordinance if conditions of approval are met. V. DECISION APPROVAL, subject to the following conditions of approval. VI. CONDITIONS OF APPROVAL A. Use & Location: Marijuana production is conditionally approved exclusively inside the proposed 3,600 square foot structure. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. ONGOING CONDITIONS OF APPROVAL A. Lighting: The following lighting standards shall be met. 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 14 of 16 Inside building lighting used for marijuana production shall not be visible outside the building from 7:00 p.m. to 7:00 a.m. on the following day. 2. Lighting fixtures shall be fully shielded in such a manner that all light emitted directly by the lamp or a diffusing element, or indirectly by reflection or refraction, is projected below the horizontal plane through the lowest light - emitting part. 3. The light cast by exterior light fixtures other than marijuana growing lights shall comply with DCC 15.10, Outdoor Lighting Control. 4. All exterior lighting shall be shielded so that direct light does not project off site. B. Odor: The proposed odor control system must at all times prevent unreasonable interference with neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use. C. Noise: Sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. D. Fencing: If fencing is used, it shall be finished in a muted brown, green, or natural wood color and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc. E. Screening: The existing tree and shrub cover screening the development from the public right-of-way or adjacent properties shall be retained to the maximum extent possible. This provision does not prohibit the maintenance of existing lawns, removal of dead, diseased or hazardous vegetation; the commercial harvest of forest products in accordance with the Oregon Forest Practices Act; or agricultural use of the land. F. Security Cameras: If security cameras are used, they shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC or the OHA. G. Waste: The marijuana waste receptacle shall be stored in a limited access area inside the production facility, in the possession of and under the control of the OLCC licensee. H. Prohibited Uses: The uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as Marijuana Production is conducted on the site. Marijuana production is prohibited in any outdoor area. I. Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be met. VII. DURATION OF APPROVAL: 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 15 of 16 The applicant shall complete all conditions of approval and obtain placement permits for the proposed use within two (2) years of the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the County Code, or this approval shall be void. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. DESCHUTES COUNTY PLANNING DIVISION r Written y: Nicole Marde , Assistant Planner Reviewed by: Peter Gutowsky, Planning Manager 247 -17 -000216 -LR, 247 -17 -000217 -AD Page 16 of 16 Community Development Planning DiSafety Division vision Building Environmen4al Soils 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 4. b" FEE: 42,9W EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de nova review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. if color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant Is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): Robert P. King Phone: C2L9j 300-0845 Mailing Address: 29422 Spotted Bull Way City/State/Zip: San Juan Capistrano, CA 92675 . Land Use Application Being Appealed: 217 -17 -000217 -AD Property Description: Town hi 15 Range 11 Section 5 Tax Lot 303 Appellant's Signature: �' d ®rt -7 a l EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 10/15 Qualify Services Performed with Pride 400 SW Bluff Drive, Suite 240 Bend, OR 97702 (0) 541-585-2224 • (D) 541-585-2229 August 25, 2017 Nicole Mardell, Assistant Planner Deschutes County Community Development 117 NW Lafayette Ave. Bend, OR 97703 RE: Letter of Authorization Dear Nicole, I hereby authorize Liz Dickson of Dickson Hatfield, LLC, to act on my behalf regarding all land use matters before Deschutes County to which myself and/or the King Family Trust dated 6/24/1982 is a party. Sincerely, R6bert P. King, Trustee , King Family Trust dated 6/24/1982 949-300-0845 611 29422 Spotted Bull Way San Juan Capistrano, CA 92675 BEFORE DESCHUTES COUNTY NOTICE OF APPEAL APPELLANT: Robert King 29422 Spotted Bull Way San Juan Capistrano, CA 92675 949-300-0845 ATTORNEY: Elizabeth Dickson Dickson Hatfield, LLC Attorneys for Appellant/Property Owner 400 SW Bluff Drive, Suite 240 Bend, OR 97702 541-585-2229 eadickson(a dicksonhatfield.com STAFF REVIEWER: Nicole Mardell, Assistant Planner Deschutes County Community Development Dept., 117 NW Lafayette Ave. Bend, OR 97701 REQUEST: Appellant requests a de novo Appeal of Deschutes County Administrative Determination, File No. 247 -17 -000217 -AD. SUBJECT PROPERTY: Assessor's Map Designation Township 15S, Range 11E, Section 5, Tax Lot 303, commonly referenced as 69188 Goodrich Road, Sisters, OR 97759. KING, BOB — NOTICE OF APPEAL OF 247 -17 -000217 -AD Page 1 of 12 TABLE OF CONTENTS I. INTRODUCTION 4 II. APPLICABLE CRITERIA & STANDARDS 4 OREGON REVISED STATUTES STATEWIDE PLANNING GOAL 12 OREGON REVISED STATUTES DESCHUTES COUNTY COMPREHENSIVE PLAN DESCHUTES COUNTY CODE TITLES 18 and 22 III. COMPLIANCE WITH APPLICABLE CRITERIA & STANDARDS 4 OREGON REVISED STATUTES ORS 475B.340 - CONTROL AND REGULATION OF MARIJUANA 4 ACT STATEWIDE PLANNING GOAL 12 5 TRANSPORTATION OREGON ADMINISTRATIVE R ULES 6 OAR 660-12 - TRANSPORTATION PLANNING RULE DESCHUTES COUNTY COMPREHENSIVE PLAN GOAL 1 6 GOAL 2 7 GOAL 4 7 GOAL 10 7 DESCHUTES COUNTY CODE TITLE 18 TITLE 22 IV. CONCLUSION KING, BOB - NOTICE OF APPEAL OF 247 -17 -000217 -AD Page 2 of 12 F, 12 EXHIBIT SCHEDULE A. Aerial photo showing property locations and proximity B. Findings & Decision, 247-16-000600-AD/36-A C. Aerial photo of marijuana farm on Couch Market Rd. D. Petition against marijuana production facility at 69188 Goodrich Rd. KING, BOB - NOTICE OF APPEAL OF 247 -17 -000217 -AD Page 3 of 12 I. INTRODUCTION Deschutes County has conditionally approved an application to establish a recreational marijuana production facility in the EFU zone. Robert P. ("Bob") King owns property adjacent to the subject property, immediately to the north of it, in the SW 1/4 SW 1/4 of Section 32. See Exhibit A, attached. (All exhibits referenced herein are provided to be incorporated by reference). Bob King opposes this proposed use and asks the County to reconsider its approval on appeal, and deny the subject application. II. APPLICABLE CRITERIA & STANDARDS OREGON REVISED STATUTES ORS 47513.340 — CONTROL AND REGULATION OF MARIJUANA ACT STATEWIDE PLANNING GOAL 12 TRANSPORTATION OREGON ADMINIS IRA TIVE RULES OAR 660-12 — TRANSPORTATION PLANNING RULE DESCHUTES COUNTY COMPREHENSIVE PLAN DESCHUTES COUNTY TRANSPORTATION SYSTEM PLAN DESCHUTES COUNTY CODE TITLES 18 and 22 III. COMPLIANCE WITH APPLICABLE CRITERIA & STANDARDS OREGON REVISED STATUTES ORS 475B.340 — CONTROL AND REGULATION OF MARIJUANA ACT ORS 475B.340(2) Mhe governing body of a ... county may adopt ordinances that impose reasonable regulations on the operations of businesses.... (3) Regulations adopted under this section must be consistent with ... county comprehensive plans and zoning ordinances and applicable provisions of public health and safety laws. RESPONSE: This mandatory language requires that "reasonable regulations" adopted by Deschutes County be consistent with the County comprehensive plan, zoning ordinances, and public health and safety laws. The current regulations adopted by Deschutes County have been interpreted to mean that an application to produce marijuana in the EFU zone cannot require analysis of transportation impacts, and so cannot verify compliance with the County comprehensive plan, or zoning ordinances, or public health and safety laws, regardless of whether there is reason to suspect such impacts may be caused by the subject application. Thus, it is reasonable to conclude that the "reasonable regulations" adopted by the County do not comply with the state statute. KING, BOB - NOTICE OF APPEAL, OF 247 -17 -000217 -AD Page 4 of 12 When the Deschutes County Code revisions were adopted in the Summer of 2016, this interpretation had not been made. Rubio Real Estate Investments LLC 247-17-000036-A Appeal of 247 -16 -000600 -AD, Testimony of Peter Russell (Senior Transportation Planner) at hearing March 6, 2017, noted that contrary to previous assumptions, transportation impacts could not be considered in an application for marijuana production in the EFU zone. See Decision of the Board of County Commissioners for Deschutes County, dated May 17, 2017, trailed May 18, 2017 (Exhibit B), pages 6-7, adopting this interpretation. DCC 18.116.330, as adopted and set forth in detail below, does not allow transportation impacts of a marijuana production facility in the EFU zone to be evaluated. This is inconsistent with Statewide Planning Goal 12, the Transportation Planning Rule, the Deschutes County Comprehensive Plan, or these laws as they work to insure public health and safety. Specific analysis by particular legal rules follows. The County's refusal to evaluate transportation impacts of this particular use creates potential risk to public health and safety. Existing marijuana production facilities have been observed to draw 15 or more cars per day (see aerial photo of existing medical marijuana production use with 15 or more motor vehicles visible on just 1 day at just one moment in time) (Exhibit Q. This standard, applied over the course of a single week, means that 75 trips over the course of a week could foreseeably be generated by this use. Thus, while all other uses in Deschutes County would be required to perform and submit a traffic analysis, and subsequently mitigate the impacts caused by such a use, marijuana production in the EFU zone is uniquely excepted from compliance with this general and well -substantiated standard of public health and safety. The County interpretation of its "reasonable regulations" violates ORS 475B.340, because it is not consistent with its Comprehensive Plan and applicable provisions of public health and safety laws. As such, the interpretation must be rejected, the "reasonable regulations" must be modified, or the instant application must be denied as violative of state statute. STATEWIDE PLANNING GOAL 12 TRANSPORTATION Each transportation plan shall ... (9) conform with the local and regional comprehensive land use plans. RESPONSE: This legislative mandate further requires that the County's Transportation Plan comply with its Comp Plan. As noted herein, the interpretation currently being implemented by Deschutes County refuses to evaluate traffic impacts of the proposed use. This interpretation violates State Statute as noted above, and this Statewide Planning Goal. This interpretation must be rejected, and the application must be denied as incomplete for failing to provide a required transportation analysis. KING, BOB — NOTICE OF APPEAL OF 247 -17 -000217 -AD Page 5 of 12 OREGONADMINISTRATIVE RULES OAR 660-12 — TRANSPORTATION PLANNING RULE OAR 660-12-005(32) [Transportation System Plans are based on] projections of future travel demand resulting from a continuation of current trends. RESPONSE: The Deschutes County Transportation System Plan, adopted in 2012, analyzed growth projection for the County. It considered UGBs as continued sources of growth, acknowledged the dampening effect of the recession starting in 2006, and noted that Destination Resorts were not likely to continue the fast -paced growth of the previous two decades. The analysis made no mention of farm or agricultural growth anticipated as the result of a newly legalized crop. This is understandable, since the initiative legalizing marijuana in the state had not yet passed. However, we have known for years now that this new crop would significantly increase demand for agricultural lands, particularly EFU lands. No analysis has been found to show that Deschutes County has adopted resulting amendments to its Transportation System Plan to reflect the now known demand that is corning, including vehicles to tend to the indoor nursery greenhouses, water supplies, crop harvest and preparation for shipment. We have now fleets of trucks used to transport greenhouse supplies, water hauling on and off site, and product shipment. This significant traffic increase's effect is exacerbated by the condition of the roads in the County's agricultural areas, often unpaved, one -lane wide, and lacking in necessary line of sight distances for safe use. The existing Transportation System Plan does not rely on projections of future demand as we know is coming, in violating of the Transportation Planning Rule. The "reasonable regulations," as applied by the County to this application, do not comply with the Transportation Planning Rule. Either the interpretation should be changed to acknowledge that this increased traffic must be evaluated and mitigated or such applications should not be approved. The applied rules, as interpreted, do not comply with this singularly foundational layer of statewide land use planning. DESCHUTES COUNTY COMPREHENSIVE PLAN DESCHUTES COUNTY TRANSPORTATION SYSTEM PLAN Goal 1: Achieve an efficient, safe, convenient and economically viable transportation... system. RESPONSE: An application that can potentially generate 15 or more trips per day, at minimum, can have significantly degrading effects on a transportation system. The instant application does not even evaluate how many trips it will generate, whether there is sufficient capacity in the system to safely accommodate such use, or what mitigation would be appropriate to maintain the public health and safety in the use of such system. Without such evaluation, this goal cannot be assured. KING, BOB — NOTICE OF APPEAL OF 247 -17 -000217 -AD Page 6 of 12 Goal 2: The Deschutes County TSP shall be continually updated in a timely fashion in order to ensure the transportation system serves the needs of County residents, businesses, and visitors. RESPONSE: As noted in response to the Transportation Planning Rule, updating does not appear to have occurred to reflect the significant impact of marijuana farm traffic in rural areas of the County. Failure to update the plan is reflected in the failure of the system to have rules in place to evaluate the loads of such use in relation to the capacities of the rural areas in which it is permitted outright. The instant application does not offer proof that the system can handle the loads it will generate. This is in violation of the County Comp Plan. The application should be denied. Goal 4: Establish a transportation system supportive of a geographically distributed and diversified economic base, while also providing a safe, efficient network for residential mobility and tourism. RESPONSE: The system cannot be assured of providing a safe, efficient network if a use, any use, is allowed to generate trips into the system without any evaluation, control, or mitigation of impacts. This goal cannot be met utilizing the County's current interpretation of its marijuana code, where production of the crop is allowed in the EFU zone without any control. The application, as presented, does not prove it complies with County Code. Policy 4.6: Deschutes County shall manage the development process to obtain adequate street right-of-way and improvements commensurate with the level and impact of development. New development shall provide traffic impact analysis to assess these impacts and to help determine transportation system needs. RESPONSE: This implementing policy of Goal 4 (above), contains mandatory language ("shall") requiring the County to manage development, such as the application that is the subject of this appeal. The County has failed to require a traffic impact analysis and the applicant has failed to provide one. The application does not comply with the County Comp Plan, and should properly be denied. Goal 10: Maintain the current arterial and collector system in the County and prevent degradation of the capacity of the system. RESPONSE: Goal 10 relies upon the measurement, assessment, and mitigation tools referenced above. If implemented properly, this goal is met. However, the County's interpretation of DCC 18.115.330 is that no traffic analysis is required, or even allowed. This is clearly wrong. Deschutes County is required to impose "reasonable regulations" on the subject use and has failed to do so. If Deschutes County continues to rely upon the instant interpretation of its rules, it does so in express violation of State Statute, State Administrative Rules, and the County's own Comprehensive Plan, KING, BOB - NOTICE OF APPEAL OF 247 -17 -000217 -AD Page 7 of 12 DESCHUTES COUNTY CODE DCC TITLE 18- DESCHUTES COUNTY ZONING ORDINANCE DCC Chapter 18.04 DEFINITIONS DCC 18.04.020 Purpose E. The intent or purpose of DCC Title 18 is to promote the public health, safety, and general welfare.... RESPONSE: Title 18, as interpreted by the County's recent decisions regarding marijuana production in the EFU zone, is expressly violative of the need to promote public health, safety, and general welfare of its citizens. See Petition of neighbors to the instant application (Exhibit D) expressing their widely -held concerns about the proposal to grow recreational marijuana in their neighborhood. The impacts of the proposed use are not supportive of public health and safety as required by Chapter 18. For example, a failure to even evaluate traffic impacts, without any concern for adequacy of roadways, capacity, or safety of use, does not satisfy this criterion. The application, as submitted, does not provide a traffic analysis, and must do so to comply with State Statute, State Administrative Rules, and the County's own Comprehensive Plan. The application should be denied. DCC Chapter 18.116 MARIJUANA PRODUCTION, PROCESSING AND RETAILING criteria: 10. Odor As used in DCC 18.116.330(B)(10), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production or marijuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed in the State of Oregon demonstrating that the system will control odor so as not to unreasonably interfere with neighbors' use and enjoyment of their property. c. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided in applicable state statute. d. The odor control system shall: KING, BOB — NOTICE OF APPEAL OF 247 -17 -000217 -AD Page 8 of 12 i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be reated for the required CFM; or ii. Utilize an alternative method or technology to achieve equal or to greater odor mitigation than provided by (1) above. e. The system shall be maintained in working order and shall be in use. RESPONSE: The instant application provides a conclusive analysis from an engineer that merely surmises the odor will be controlled. To Appellant Bob King's knowledge, there is not a single marijuana grow operation in Deschutes County that adequately controls its odor. The instant application provides no reason to believe this use will be engineered differently. The application, as submitted, does not meet the criterion. The application should be denied. 11. Noise Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained noise from mechanical equipment used for heating, ventilation, air condition, odor control, fans and similar functions shall not exceed 30 Db(a) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is exempt from protections of DCC 9.12 and ORS 30.395, Right to Farm. Intermittent noise for accepted farming practices is permitted. RESPONSE: The instant application provides the same conclusive analysis from an engineer that merely surmises the noise will be controlled. To Appellant Bob King's knowledge, there is not a single marijuana grow operation in Deschutes County that adequately controls its noise. The instant application provides no reason to believe this use will be engineered differently. The application, as submitted, does not meet the criterion. The application should be denied. 13. Water. The applicant shall provide... b. a statement that water is supplied from a public or private water provider, along with the name and contact information of the water provider.... RESPONSE: The applicant proposes to have water hauled on site to supply the needs of the greenhouses proposed. There is no detail provided regarding the volume required, the number of truck trips and the frequency of those truck trips, the size and weight of the trucks to be used. Without this information, impact of this method of providing water cannot accurately be evaluated. This information should be required, analyzed, and the impact on others should be determined before this application is properly approved. KING, BOB - NOTICE OF APPEAL OF 247 -17 -000217 -AD Page 9 of 12 15. Utility Verification A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. RESPONSE: Applicant has submitted a revised "will serve" letter for electrical service that is more detailed. This detail is appreciated. 17. Secure Waste Disposal Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee or ORA Person Responsible for the Grow Site (PRMG). RESPONSE: Applicant's assurance that they will perform as required is insufficient. A site plan showing the location, type, access, and security should be required. This site is not fenced. The most shielded access to it is by way of Appellant Bob King's property to the north. It is insufficient to merely assert that this criterion will be satisfied. At a minimum, the Applicant should be required to provide the above information, and it should be evaluated for compliance with the criterion. Without it, the application should be denied. DCC TITLE 22 - DESCHUTES COUNTY DEVELOPMENT PROCEDURES ORDINANCE DCC Chapter 22.32 APPEALS DCC Section 22.32.010 Who May Appeal F. The following may file an appeal: 2. In the case of an appeal of an administrative decision without prior notice, a person entitled to notice, a person adversely affected or aggrieved by the administrative decision, or any other person who has filed comments on the application with the Planning Division; and G. A person to whom notice is mailed is deemed notified even if notice is not received. RESPONSE: Bob King received notice. He also submitted information into the Record prior to the decision being made, and is adversely affected and aggrieved by the decision made. Bob King is a proper Appellant in this matter. DCC 22.32.020 Notice of Appeal A. A statement raising any issue relied upon for appeal with sufficient specificity to afford the Hearings Body an adequate opportunity to respond to and resolve each issue in dispute. KING, BOB - NOTICE OF APPEAL OF 247 -17 -000217 -AD Page 10 of 12 RESPONSE: This submittal describes Mr. King's concerns. We are available to answer any further questions requiring clarification if Mr. King's concerns are unclear or require further detail. B. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons why the Board should review the lower Hearings Body's decision. RESPONSE: The BOCC, in 2016, adopted DCC 18.116.330. The Board is the local jurisdiction with the highest degree of understanding of the intended meaning of the Code as adopted. Appellant Bob King's objections are largely focused on the interpretation of this new code and what the Board intends it to mean and how it intends the to work. Thus, this Board should review the instant decision, and we ask the Board to accept this appeal directly from the Administrative Determination made below. C. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board stating the reasons why the Board should provide de novo review as provided in DCC 22.32.030. RESPONSE: The Administrative Determination Record is thin. Significant information is needed to evaluate whether the intent of the Board in allowing marijuana production in the EFU zone is met. Both the Board and the Appellant will likely be very frustrated if additional information is needed, but cannot be called up, because the Record is closed. In the interest of full deliberation of all the necessary facts, we request that this review be de novo. DCC Section 22.32.024 Transcript Requirement A. Except as otherwise provided in DCC 22.32.024, appellants shall provide a complete transcript of any hearing appealed from, from recorded magnetic tapes provided by the Planning Division. RESPONSE: This decision was made without hearing. No tapes are available. B. Appellants shall submit to the Planning Division the transcript no later than the close of the day five days prior to the date set for a de novo appeal hearing or, in on - the -record appeals, the date set for receipt of written arguments. Unless excused under DCC 22.32.024, an appellant's failure to provide a transcript shall cause the Board to decline to consider the appellant's appeal further and shall, upon notice mailed to the parties, cause the lower Hearings Body's decision to become final. RESPONSE: This decision was made without a hearing. No tapes are available, so no transcripts are available. C. An appellant shall be excused from providing a complete transcript if appellant was prevented from complying by: (1) the inability of the Planning Division to supply appellant with a magnetic tape or tapes of the prior proceeding; or (2) defects on the KING, BOB - NOTICE OF APPEAL OF 247 -17 -000217 -AD Page 11 of 12 magnetic tape or tapes of the prior proceeding that make it not reasonably possible for applicant to supply a transcript. Appellants shall comply to the maximum extent reasonably and practicably possible. RESPONSE: Appellant is properly excused. See above. IV. CONCLUSION Assistant Planner Nicole Mardell's Administrative Determination approves the instant application with conditions. Respectfully, the decision should not be upheld on appeal for the reasons stated herein. We ask that this appeal be heard de novo by the Board, and that this application be denied. Submitted this 25th day of August, 2017, by: lfC r YE,41i7ath A. Dickson Attorney for Appellant EAD/mis Cc: Client Encls: Exhibits attached as listed on attached Exhibit Schedule https://dicksonhatfield.serverdata.net/niatters documents/king robert matters - 3844/appeal of marijuana grow site - 217-17-000217-ad_2664- 6760/appeal bop 8.25.17.docx KING, BOB — NOTICE OF APPEAL OF 247 -17 -000217 -AD Page 12 of 12 LO N cV r ti O N LO N Q N N N LM 2 r ;V C a O M� o X W .l EXHIBIT B Mailing Date: Thursday, May 18, 2017 mi For Recording Stamp Only DECISION OF THE BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY FILE NUMBERS: 247 -16 -000600 -AD, 247-17-000036-A OWNER/APPLICANT: Rubio Real Estate Investments, LLC 2979 NW 171h St. Redmond, OR 97756 APPLICANT'S AGENT: Douglas R. White Oregon Planning Solutions 60762 River Bend Dr. Bend, OR 97702 APPLICANT'S Lisa Kiemp ATTORNEY: Bryant Emerson, LLP RECORD CLOSED: PO Box 457 247 -16 -000600 -AD, 247-17-000036-A Redmond, OR 97756 APPELLANT: Monika & Lance Platt 23095 Alfalfa Market Rd. Bend, OR 97701 APPELLANT'S Elizabeth Dickson ATTORNEY: Dickson Hatfield LLC 400 SW Bluff Drive, Suite 240 Bend, OR 97702 PROPOSAL: An appeal of an approved Administrative Determination to establish a marijuana production facility in the Exclusive Farm Use (EFU) tone. STAFF REVIEWER: Jacob Ripper, Associate Planner ADMINISTRATIVE DECISION ISSUED: January 11, 2017 APPEAL FILED: January 17, 2017 HEARING DATE: March 6, 2017 RECORD CLOSED: April 3, 2017 247 -16 -000600 -AD, 247-17-000036-A Document No. 2017-294 Exhibit B Page I of 7 w 0 i EXHIBIT B I. SUMMARY OF DECISION In this decision, the Board of County Commissioners ("Board") considers the appellant's appeal of the January 11, 2017 administrative Findings & Decision (file no. 247 -16 -000600 -AD; "Administrative Decision"). The Board exercised Its discretion to hear the appeal de novo. The Board received two Memoranda on the appeal from Associate Planner Jacob Ripper. The first was dated February 27, 2017 ("Pre -Hearing Memo") that identified and summarized the key issues in the Notice of Appeal, the findings made by the staff on those Issues In the Administrative Decision or subsequent to It In preparation for Board deliberation, the applicable evidenc b e in the record, and the arguments of the applicant and the appellants. The second staff memo was dated April 10, 2017 (the "Post -Hearing Memo") that identified and summarized the Ivey issues to be decided by the Board In addition to both the applicant and appellant's arguments. The Board's Decision in this appeal will refer to and Incorporate the Administrative Decision and summary of issues in both Staff Memoranda. On April 26, 2017, before deliberating on specific Issues, the Board noted that this is a case of first impression since it Is the first Board decision based on new code provisions adopted in June of 2016 allowing recreational marijuana grow operations. After Interpreting code provisions relevant to the pending issues, the Board found that the applicant failed to meet its burden to prove that the proposal satisfied all applicable criteria. The Board interpreted applicable code unsatisfied as follows; • The utility verification requirement of Deschutes County Code (DCC) 18.116.330(8)(15) was not met because the applicant failed to provide a statement from the Central Electric Cooperative ("CEC") verifying that CEC, was willing and able to provide electrical service for the operation proposed by the applicant. The Board was split on the sufficiency of the utility verification evidence that was provided, a March 15, 2017 letter from CEC referencing only the property address but not the proposed operation that is the subject of the pending application. Further, the CEC letter did not address such issues as the proposed operation's required electrical load or the timing of that electrical load. The Board interpreted the code to require such operational details to satisfy Deschutes County Code 18.116.330(8)(15). As discussed by the Board during their deliberations, the ambiguity regarding the sufficiency of utility verification was partially caused by the applicant's Initial reliance on materials submitted for an unrelated 2015 Conditional Use Permit for a Nonfarm Dwelling on the same property. Although approved, the aforementioned Nonfarm Dwelling has not yet been established. Relative to the subject marijuana production facility, the applicant's initial October 4, 2016 Application and Burden of Proof Statement attempted to rely on evidence submitted in the unrelated 2015 Nonfarm Dwelling application as a means of providing utility verification. Deschutes County staff noted this discrepancy In the Administrative Decision and thereby Imposed a condition requiring the applicant to provide "a statement from the electric utility company proposed to serve the marijuana production operation, stating that the electric utility company is able and willing to serve the operation." Ultimately, the applicant submitted the aforementioned March 15, 2017 letter from CEC.. However, as noted, that March 15th letter only references the property location and Is not specific to the proposed marijuana production operation. 247 -16 -000600 -AD, 24747-000036-A Document No. 2017-294 Page 2 of 7 Exhibit B Page 1 of 6 EXHIBIT B The Board interpreted applicable code satisfied as follows: The odor control requirement of DCC 1811 6,330(B)(I 0) was met because the applicant provided a letter from an engineer stating the odor control system would meet the requirements of the code, The Board was split on the sufficiency of the engineer's opinion, since it did not provide his qualifications, experience, methodology, or analysis of conclusion. The Board expressed their desire for applicants to include such detail in an engineer's statement offered to satisfy this code provision in subsequent applications. The water source requirement of DCC 18.116.330(6)(13) was deemed met because the applicant submitted sufficient documentation to satisfy the criterion. The Board was split on the sufficiency of the supplier evidence provided, since neither Avion (potable water supplier) nor Central Oregon irrigation District (irrigation water supplier) addressed the volume or timing of water that would be required by the operation, and further did not state whether they could provide that volume- or timing of supply. The Board expressed their desire for applicants to include such detail in water source documentation offered to satisfy this code provision in subsequent applications. • The noise requirements of DCG 18.116.330(11) were met because the applicant submitted sufficient documentation to satisfy the criterion. The Board was split on the sufficiency of the expert analysis provided, since it did not provide the expert's qualifications, experience, methodology, or analysis of conclusion. The Board expressed their desire for subsequent applications to include such detail in a statement offered to satisfy this code provision. • The prohibition in RCC 18,116.330(20)(a)(1) of a new dwelling in conjunction with a marijuana crop does not prohibit the previously approved non-farm dwelling for this site on or about May 12, 2014 In file 247 -15 -000103 -CU. • The access requirement in DCC 18.116.330(8)(a) was met because the applicant executed a previously approved property line adjustment after the staff Decision was made but before the close of the record, to provide the subject property frontage on and direct access to a county road, as required by the code. II. APPLICABLE STANDARDS AND CRITERIA: The Board adopts and incorporates by reference the description of the applicable standards and criteria set forth in Section 1. of the Findings & Decision. 11i, BASIC FINDINGS: The Board adopts and Incorporates by reference the code Interpretations, findings of fact, and conclusions of law set forth in the January 11, 2017 administrative Findings & Decision (file 247 -16 -000600 -AD) in Section iI. Basic Findings, subsections A (Location), B (Lot of Record), C (Zoning), D (Proposal), E (Site Description), F (Surrounding Land Uses), G (Land Use History), H (Public Agency Comments), I (Public Comments), and J (Review Period), with the following additions. 247 -16 -000600 -AD, 247-17-000036-A Page 3 of 7 Document No. 2017-294 Exhibit B Page 2 of 6 EXHIBIT B B. Lot of Record: The subject property is Parcel 2 of Minor Partition MP -83-13, as adjusted by the Property Line Adjustment 247 -15 -000280 -LL. E. Site Description: A deed describing subject tax lots 17-13-28-1601 and 17-13-33A-201 together was recorded on March 15, 2017 as OR 2017-09961. The subject property is now 22.27 acres In size, according to Assessment records. D. Land Use History: The application was submitted on October 4, 2016. It was deemed incomplete on November 2, 2016. After the applicant submitted additional information, the application was accepted and deemed complete on December 19, 2016. The 150th day on which the county must take final action on this application is May 18, 2017. An Administrative Determination which conditionally approved the application was issued January 11, 2017. An appeal from appellants was timely flied during the 12 -day appeal period on January 17, 2017. The Board decided to hear the appellant's appeal de novo in the Board's Order 2017- 001 dated January 23, 2017. A public hearing was held on March 6, 2017. The applicant was represented by Lisa Klemp of Bryant Emerson, LLP and the appellant was represented by Elizabeth Dickson of Dickson Hatfield, LLC. The Board heard testimony and allowed the parties to file post -hearing submissions. The record closed on April 3, 2017. The Board's review Included the record below before staff as well as the record, testimony, and written submissions In the proceedings on appeal before the Board. The Board conducted deliberations at the regular Business Meeting on April 26, 2017. IV. FINDINGS: A. The Board adopts and Incorporates by reference the code interpretations, findings of fact, and conclusions contained in the January 11, 2017 administrative Findings & Decision (file 247 -16 -000600 -AD) in Section 111. Concluslonary f=indings, except for the findings relating to the DCC Sections identified below, which are modified as follows: B. DCC 18.116.330(B)(8) Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or [... The record supports that the previous configuration of the tract consisted of two abutting tax lots (Assessor's Map 17-13-28, tax lot 1601 and Map 17-13-33A, tax lot 201) and were approved to be consolidated by the Property Line Adjustment file number 247 -15 -000260 -LL. The record Includes a recorded :deed (OR 2017-09961) which consolidates the two tax lots into one tax lot. The Board finds the subject property's current configuration has frontage on and direct legal access to Alfalfa Market Road, therefore, this criterion Is met. 247 -16 -000600 -AD, 247-17-0 0036-A Document No. 2017-294 Page 4 of 7 Exhibit B Page 3 of 6 EXHIBIT B C. DCC 18.1 16.330(B)(1 0) Odor. As used In DCC 18.116.330(B)(90), building means the building, including greenhouses, hoop houses, and other similar structures, used for marijuana production ormarUuana processing. a. The building shall be equipped with an effective odor control system which must at all times prevent unreasonable Interference of neighbors' use and enjoyment of their property. b. An odor control system is deemed permitted only after the applicant submits a report by a mechanical engineer licensed In the State of Oregon demonstrating that the system will control odor so as not.to unreasonably interfere with neighbors' use and enjoyment of their property. C. Private actions alleging nuisance or trespass associated with odor impacts are authorized, if at all, as provided In applicable state statute. d. The odor control system shall. 1. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The fiiter(s) shall be rated for the required CFM; or Y, Utilize an alternative method or technology to achieve equal to or greater odor mitigation than provided by (i) above. e. The system shall be maintained In working order and shall be in use. The Board acknowledges that the criteria of this section are discretionary, in terms of what constitutes "unreasonable Interference of neighbors' use and enjoyment of their property". The record includes two letters from Oregon -licensed Mechanical Engineer Robert James, PE, dated November 23 and November 29, 2016. The Board finds the applicant met these criteria. The Board also clarifies that odor control is an ongoing requirement and that the burden of compliance is on the applicant. The Board further ciarifies that In subsequent applications, an engineer's letter should explicitly identify that the engineer signing the letter is a mechanical engineer. D. DCC 18.116.330(B)(11) Noise. Noise produced by marijuana production and marijuana processing shall comply with the following: a. Sustained. noise. from.meohanical equlpme�rt y en for he0tjrlg, ventilation, air condition, *odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 90:00 p.m. and 7:00 a.m. the following day. b. Sustained noise from marijuana production is exempt from protections of DCG 9.92 and ORS 30.395, Right to Farm. intermittent noise for accepted farming practices is permitted. The Board finds the applicant meets criterion (a) above, however, there was a discussion at the deliberation as to N HVAC equipment would generate sustained noise overnight when heating is on in the winter. The Board expressed a desire for additional details in subsequent applications, especially in regard to controlling sustained mechanical noise from heating and ventilation equipment between 10:00 p.m. and 7:00 a.m. 247 -16 -000600 -AD, 247-17-000036-A Page 5 of 7 Document No, 2017-294 Exhibit B Page 4of6 EXHIBIT B E. DCC 18.116.330(B)(13) Wafer. The applicant shall provide: a. A copy of a water right permit, certificate, or other water use authorization from the Oregon Water Resource Department; or b. A statement that water is supplied from a public or private water provider, along with the name and contact Information of the water provider; or C. Proof from the Oregon Water Resources Department that the water to be used Is from a source that does not require a water right. The record contains materials demonstrating the property may be served by Avion Water Company, inc. Additionally, the property has access to seasonal irrigation water from the Central Oregon Irrigation District. The Board rinds the applicant meets these criteria above. The Board also notes that in subsequent applications, greater specificity in the water supply documentation Is desired in terms of Identifying the use associated with the water. F. DCC 18.116.330(B) Utility Verification. A statement from each utility company proposed to serve the operation, stating that each such company is able and willing to serve the operation, shall be provided. The Board finds the applicant failed to adequately provide evidence in the record to support the electric utility verification requirement and denies the application based on this criterion. The March 15, 2017 letter provided by the Central Electric Cooperative ("CEC") only identified the subject property as within the service area of CEC and notes that GEC will serve the location in accordance with their rates, policies, and available system capacity. In part because there Is already an approved but not yet established nonfarm dwelling use on the subject property, a utility statement simply identifying the property location and not identifying the proposed operation, or operational characteristics such as required electrical load and timing of such electrical loads is not sufficient evidence to approve the application. Although the March 1 e letter from CEC notes the property location, the Board finds that more specificity was needed from the applicant to establish that CEC is willing and able to serve the proposed marijuana production operation. G. DCC 18,116.330(B)(20) Prohibited Uses. a. in the ,EFU zone, the following uses are prohibited. 1. A new dwelling used In conjunction with a marijuana crop; [...] The record Indicates a nonfarm dwelling was approved prior to the application for marijuana production. In deliberations, the Board discussed with staff the differences between farm dwellings and nonfarm dwellings. The Board . rinds the two uses are separate land use processes and one does not preclude the other. The Board further finds the development of the nonfarm dwelling is not a prohibited use under this section. H. DCC 18.116.310, Traffic impact Studies In deliberations, the Board discussed with staff whi 247 -16 -000600 -AD, 247-17-000036-A Document No. 2017-294 at Studies are: required and uired when a use will cause Page 6 of 7 Exhibit B Page 5 of 6 EXHIBIT B V. DECISION Based on the findings of fact and conclusions of law set out above, the Board hereby denies the applicant's proposed marijuana production application and reverses on appeal the January 11, 2017 admin(stratiVe Findings & Decision (file 247 -16 -000600 -AD), which approved the application. Dated this day of May, 2017 Mailedtiils 149 day of May, 2017 BOARD OF COUNTY COMMISSIONERS FOR DESCHUTES COUNTY Tammy Baney, Ch t DeBone, Vlcq Chair K)'W=W4,A% Philip G. 015,nders3n, Commissioner tr THIS DECISION BECOMES FINAL WHEN SIGNED. PARTIES MAY APPEAL THIS DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS DECISION IS FINAL. 247 -16.000600 -AD, 247-17-000036-A Document No, 2017-294 Page 7 of 7 Exhibit B Page 6 of 6 Petition against marijuana production facility at 69188 Goodrich Road, Sisters, OR 97759 Owner: Norma and Richard Tewalt File ##: 247-17-000216-LR/247-17-000217-AD Applicant / Agent: Norma and Richard Tewalt From: The Below Signed Appellants as Neighbors to the Subject Property Date: August 25, 2017 WHEREAS, you are our elected representatives; and WHEREAS, it is universally accepted the first duty and responsibility of elected representatives is to provide for the safety and security of their constituency; and WHEREAS, the SOCC has been granted legal authority by the, State Legislature to place reasonable regulations on the time, place, and manner of production of marijuana in Deschutes County, pursuant to ORS 475B.340, and these must be consistent with the County Comprehensive Plan and Zoning Ordinances and applicable provisions of public health and safety laws; and WHEREAS, in the "Findings and Decision," it is stated, "The Deschutes County Code does not allow the Planning Division to approve or deny this application based on ... Previous code violations on the property, Impact of marijuana on neighboring pets and livestock, Increased crime and threat to safety of neighbors, or Potential negative effects on children in the area."; and WHEREAS, the Oregon legislature recognized and, by excluding marijuana production from protection of DCC 9.12 and ORS 30.3905, Right to Farm, publicly acknowledged that marijuana production is not equivalent to normal farming operations and requires special consideration and greater over -sight; and WHEREAS, based on results to date, it is now recognized and acknowledged by law enforcement agencies throughout the State that marijuana production has a history of frequently bringing increased crime and public safety issues, including threats of bodily harm, to a here -before safe neighborhood; and WHEREAS, the Applicants' initial application included "Phase I" which they withdrew once they were put on notice that a see-through, dilapidated, piecemealed structure only 30 feet from the neighbor's property and within a line -of -sight to the neighbor's residence was not going to be approved by the County, the Applicant withdrew "Phase 1," but indicated their preference for substandard quality of construction and an absence of concern for public health and safety; and WHEREAS, the Applicant's above described behavior indicate the Applicant has a lack of respect and consideration for the neighbors and neighborhood and the established codes; THEREFORE, for the reasons stated above and in our appeal, we the undersigned do respectfully request the BOCC to consider this appeal in the scope of their highest duties and responsibilities and give full consideration to "previous code violations on the property, Impact of marijuana on neighboring pets and livestock, Increased crime and threat to safety of neighbors, and potential negative effects on children in the area" and deny Norma and Richard Tewalt's Application for a marijuana production facility to be constructed at 69188 Goodrich Road, Sisters, OR 97759. A marijuana production facility does not belong in the Goodrich neighborhood, a well established family, normal -farming neighborhood. We plead with the BOCC to deny this application. Exhibit PETITION TO THE DESCi•!UTES COUNTY BOARD OF COUNTY COMMISSIONERS (BOCC) PAGE 4l OF PAGES Petition against marijuana production facility at 69188 Goodrich Road, Sisters, OR 97759 Name Street Address Phone ?�l� �2�C2'r�✓`,G.^-�.J 7 �e G� /' }/ ji �,%'"I ®? y(:. ._�7 �.../ 6 ."..._l 1 ' - i L � (-ro Gt Road 3 6 a -- c cj t v) C ooA4 I i04 5v - 5- /� 1 % � A� R `%J "4- ,f)7 ^ Exhibit 1 Pugs 2 f of 1 D PETITION TO THE VESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS (BOCC) PAGE 3 OF PAGES Petition against marijuana production facility at 69188 Goodrich Road, Sisters, OR 97759 Exhibit - P --rage _a_ of _10 Name Street Address Phone k600c) �JmuM JSC'A RA 3r o , a4' fC "` g775-. AtL LW _ -Ac k Coq -7 2 G z'r t, quid 9-7 Exhibit - P --rage _a_ of _10 PETITION TO THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS (BOCC) PAGE 4 OF S PAGES Petition against marijuana production facility at 69188 Goodrich Road, Sisters, OR 97759 Name Street Address Phone I C,? CLAA � s� s��ns _ LA l '6 t Ik l W a.AancL �'s�et fi� �'t7 5 541 �ca�k 3t5� PETITION TO THE DESCHUTES COUNTY BOARD OF COMMISSIONERS (BOCC) PAGE �' OF PAGa Signature Address Print name k� Exhibit__ PETITION TO THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS (BOCC) PAGE � OF � PAGES Petition against marijuana production facility at 69188 Goodrich Road, Sisters, OR 97759 Typed names corresponding to signatures on Page 2' Name Street Address Phone Adam Lee Jones 17625 Edmundson 541-595-8455 Marcia Reitman 17648 Edmundson 541-548-2136 Jessica Gellings 17660 Edmundson 541-419-5705 Dave Gellings 17660 Edmundson 541-419-5705 Dillon Hoffman 69555 Goodrich 541-306-0413 Laurie McCallum 69401 Goodrich 541-504-3149 Karen Edwards 69434 Goodrich 805-610-4180 Sheri Weatherby 69580 Goodrich 805-610-4180 Roy Weatherby 69580 Goodrich 805-712-0156 Reece Richardson 69765 Goodrich 541-548-3438 Lorna Richardson 69765 Goodrich 541-548-3438 Ralph Show 69785 Goodrich 541-280-0533 John Andrews 69875 Goodrich 541-728-8928 Joey Hougham 69725 Goodrich 541-923-6309 Traci Orr 69280 Goodrich 541-408-0839 Danny Lingo 17760 Edmundson 541-213-0650 Ken Whitlatch 69469 Carlton 541-504-0166 Jim Kreminski 17815 Edmundson 541-480-2291 Exhibit (�,, 1.0 PETITION TO THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS (BOCC) PAGE -1 OF � PAGES Petition against marijuana production facility at 69188 Goodrich Road, Sisters, OR 97759 Typed names corresponding to signatures on Page Name Street Address Phone Patti Adair 1800 Edmundson 310-924-1846 Robert Adair 1800 Edmundson 310-984-1847 Rand Reitman 17648 Edmundson 541-548-2136 Scott Edwards 69434 Goodrich 360-509-6551 Roland Merandy 69220 Goodrich 541-588-2259 Darla Merandy 69220 Goodrich 541-588-2273 Jack Addison 69820 Goodrich 541-419-2502 Stacy Hougham 69725 Goodrich 541-408-3815 Mary Claire Jones 17625 Edmundson 650-400-6332 Exhibit F'a rte _7 of '/ PETITION TO THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS (BOCC) PAGE t OF6 PAGES Petition against marijuana production facility at 69188 Goodrich Road, Sisters, OR 97759 Typed names corresponding to signatures on Page T Name Street Address Phone Cathie Raaf 18141 Wawona 541-504-3155 Larry Raaf 18141 Wawona 541-504-3155 Cody Lovely 18141 Wawona 541-504-3155 rNhibit....�.--- page of _P2 PETITION TO THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS (BOCC) PAGE 1 OF 'Z PAGES Petition against marijuana production facility at 69188 Goodrich Road, Sisters, OR 97759 Owner: Norma and Richard Tewalt File #: 247-17-000216-LR/247-17-000217-AD Applicant / Agent: Norma and Richard Tewalt From: The Below Signed Appellants as Neighbors to the Subject Property Date: August 25, 2017 WHEREAS, you are our elected representatives; and WHEREAS, it is universally accepted the first duty and responsibility of elected representatives is to provide for the safety and security of their constituency; and WHEREAS, the BOCC has been granted legal authority by the State Legislature to place reasonable regulations on the time, place, and manner of production of marijuana in Deschutes County, pursuant to ORS 4756.340, and these must be consistent with the County Comprehensive Plan and Zoning Ordinances and applicable provisions of public health and safety laws; and WHEREAS, in the "Findings and Decision," it is stated, "The Deschutes County Code does not allow the Planning Division to approve or deny this application based on ... Previous code violations on the property, Impact of marijuana on neighboring pets and livestock, Increased crime and threat to safety of neighbors, or Potential negative effects on children in the area."; and WHEREAS, the Oregon legislature recognized and, by excluding marijuana production from protection of DCC 9.12 and ORS 30.3905, Right to Farm, publicly acknowledged that marijuana production is not equivalent to normal farming operations and requires special consideration and greater over -sight; and WHEREAS, based on results to date, it is now recognized and acknowledged by law enforcement agencies throughout the State that marijuana production has a history of frequently bringing increased crime and public safety issues, including threats of bodily harm, to a here -before safe neighborhood; and WHEREAS, the Applicants' initial application included "Phase I" which they withdrew once they were put on notice that a see-through, dilapidated, piecemealed structure only 30 feet from the neighbor's property and within a line -of -sight to the neighbor's residence was not going to be approved by the County, the Applicant withdrew "Phase I," but indicated their preference for substandard quality of construction and an absence of concern for public health and safety; and WHEREAS, the Applicant's above described behavior indicate the Applicant has a lack of respect and consideration for the neighbors and neighborhood and the established codes; THEREFORE, for the reasons stated above and in our appeal, we the undersigned do respectfully request the BOCC to consider this appeal in the scope of their highest duties and responsibilities and give full consideration to "previous code violations on the property, Impact of marijuana on neighboring pets and livestock, Increased crime and threat to safety of neighbors, and potential negative effects on children in the area" and deny Norma and Richard Tewalt's Application for a marijuana production facility to be constructed at 69188 Goodrich Road, Sisters, OR 97759. A marijuana production facility does not belong in the Goodrich Exhibit neighborhood, a well established family, normal -farming neighborhood. We plead with the BOCC to deny this application. PETITION TO THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS (BOCC) PAGE 2 OF 2 PAGES Petition against marijuana production facility at 69188 Goodrich Road, Sisters, OR 97759 AA �k V' -W' �k" (LA -._ Exhibit. w BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK A4L ---"")Subject: voo�` " � �- �� E� o�Date: Name Address <. & Phone #s TV q Z,, E-mail address In Favor Neutral/Undecided Opposed Submittingwritten documents as art of testimony? Yes � No p If so, please give a copy to the Recording Secretary for the record. 06/06/2017 09:05 15413890721 BEND WATER HAULING PAGE 01/01 22166 Nelson Road .Vend, OR 97701-9790 Office (541) 382-0759 06/06/17 Richard & Norma Tewalt 69188 Goodrich Rd. Sisiters, Or. 97759 RE: Will Serve Letter Richard & Norma Tewalt have requested that Bend Water. Hauling, LLC deliver potable water to th address ni.ention.ed above. Web -,ave set up an account and will deliver to this location. If you have any questions or concerns please: contact us at tl�e office. Sincerely, Kimberlee Nunez Dispatcher/Member Lem Madluana Producer Exempt water Form TWI tleaettael Y htet I w MRM re w1a1entolt in OAR @434R5-MW4 fL1f D1 etd in wree as praer *a aw wwec of www dtenbtd iw rtk Rtrrtr hwwtMd aw in In Me aedfeetlot or attt/ors M aotorrwaw popttte Y t www Mt does no retptho t Meer see pvM* or an Ilfatb Rawl n Oft" MMw Rteew DopwotwtJOWRM TU desewsh Hw Y bawd it pro upot the irRrrtNo prwidi/ by M 1`etc OW lYfr twq Lief M tttr/iw t tIM wtdt M AMerwite NOW propawd water .vee p eat rtpl Timm t w OidRtf khmm" Mita a prtdtcorw t pradear't taptaowtdrt tdnR itwlititte"prwf. 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The ptwdwaer's vvp sd tww of ower doe oat ra*ba • wMw d& plonk w wrarade: s-.0 sty O l.e�iwt O ?b r -w ttmwy 0 smrge 114wd our wwr.ettw.r o�rw �l►srur.crr- � Dae:Z-9 - P41ttd L ram t�. ,U•i A t vox :Je tIlOW IR AC-G u \ 9 e �S �1 ooh C SGQA e. ry' yo' q4'_3���' todxH SODsq v�g 41ooM �\wf _ e i bloom 1�C�aM to x io = ID651 ScCu�c. ap 46 Was�c. �O h tb = too bloom ii ENGINEERING DATE: March 20, 2017 TO: Deschutes County Planning Officer CC: Norma Tewalt FROM: Jay Castino RE: Odor control for marijuana production To whom it may concern: This is a narrative report stating that Norma Tewalts's marijuana production facility at 69188 Goodrich RD Sisters, OR meets the odor control system requirement of DCC 18.116.330(B)(10) and complies with the noise requirements of DCC 18.116.330(B)(11). • Building Description o Ms. Tewalt's marijuana production facility is in an agricultural building. See architectural information provided by others for more detail. • HVAC system description o A conventional "all -air" split system furnace and A/C coil will be used to condition the space for the marijuana production facility. o In the normal mode of operation, it will condition and recirculate the air within the building; no air is exhausted from the building. o In the economizer mode of operation, it will intake fresh air from outside to condition the interior space and exhaust stale air back to the outside. ■ In this economizer mode, air will be exhausted from the building and will run through the odor control system before exiting the building (see Figure 1 on next page). Mechanical Engineering Consultants Building systems Design • Energy services • Environmental consulting • Machine design • Partner services 70 SW Century DR STE 100-156 Bend, OR 97702 Phone: (541) 728-3624 i Email: jjc@jjceng.com • Web: www.jjceng.com Page 1 of 3 JJCENGQ117 TEWALT ODR LUCS-OO.doc 0 • Odor control system o An activated carbon (charcoal) filter on the exhaust system will provide the odor control. o When the HVAC system goes into economizer mode, the activated carbon filters on the exhaust system will scrub the exhaust air (see Figure 1). o The activated carbon filters will be maintained and/or replaced per the manufacturer's suggested service intervals. o This odor control system will not reasonably interfere with neighbors' use and enjoyment of their property. Figure 1- section view diagram of HVAC system in economizer mode and odor control system. ,oust Mechanical Engineering Consultants Building systems Design o Energy services • Environmental consulting s Machine design ® Partner services 70 SW Century DR STE 100-156 Bend, OR 97702 Phone: (541) 728-3624 a Email: jjc@jjceng.com a Web: www.jjceng.com Page 2 of 3 JJCENGQ117 TEWALT ODR LUCS-OO.doc Noise requirements o The HVAC and odor control systems do not operate in a sustained manner. They operate intermittently, similar to the function of a normal residential furnace or heat pump. Further, the equipment specifications and our calculations indicate that the sound level will not be above 30 dba, as measured from any property line, between 10pm and 7am. Sincerely, . �-r*ZT- Jay J. Castino, PE Principal PROP N�E',pfs`Si 77686PE r, �gMES C ASS CEXPIRES 12/31/17 Mechanical Engineering Consultants Building systems Design 0 Energy services • Environmental consulting • Machine design • Partner services 70 SW Century DR STE 100-156 Bend, OR 97702 Phone: (541) 728-3624 • Email: jjc@jjceng.com • Web: www.jjceng.com Page 3 of 3 JJCENGQ117 TEWALT ODR LUGS-OO.doc ENGINEERING DATE: March 20, 2017 [revised September 6, 2017] TO: Deschutes County Planning Officer CC: Norma Tewalt FROM: ,Jay Castino RE: Odor control for marijuana production Introduction This is a narrative report for Norma Tewalt's marijuana production facility at 69188 Goodrich RD Sisters, OR. Qualifications I am a mechanical engineer licensed in Oregon #77686PE and Washington #55122. Experience I have provided mechanical engineering services for marijuana production facilities and other similar controlled environment applications throughout Oregon. Methodology • Building Description o Ms. Tewalt's marijuana production facility is in an agricultural building. See architectural information provided by others for more detail. • HVAC system description o A conventional "all -air" split system furnace and A/C coil will be used to condition the space for the marijuana production facility. o In the normal mode of operation, it will condition and recirculate the air within the building; no air is exhausted from the building. o In the economizer mode of operation, it will intake fresh air from outside to condition the interior space and exhaust stale air back to the outside. Mechanical Engineering Consultants Building systems Design • Energy services 0 Environmental consulting • Machine design * Partner services 70 SW Century DR STE 100-156 Bend, OR 97702 Phone: (541) 728-3624 • Email: jjc@jjceng.com • Web: www.jjceng.com Page 1 of 4 JJCENGQ117 TEWALT ODR LUCS-01 Aoc Q ■ In this economizer mode, air will be exhausted from the building and will run through the odor control system before exiting the building (see Figure 1). • Odor control system o An activated carbon (charcoal) filter on the exhaust system will provide the odor control. o When the HVAC system goes into economizer mode, the activated carbon filters on the exhaust system will scrub the exhaust air (see Figure 1). o Each grow room within the production facility will be equipped with an odor control system. A typical grow room can be 1000 sq. ft. and 10 ft. ceiling height. o Per DCC 18.116.330(B)(1 0)(d) the exhaust fan(s) shall be sized for cubic feet per minute (CFM) based on room volume divided by three. Based on the above mentioned typical grow room dimensions this is (1000 x 10)/3 = 3334 CFM, with the filters, in aggregate, rated for this CFM. o The activated carbon filters will be maintained and/or replaced per the manufacturer's suggested service intervals. o This odor control system will not reasonably interfere with neighbors' use and enjoyment of their property. Figure 1- section view diagram of HVAC system in economizer mode and odor control system. ,r�1 W W:Ww W.1 • Noise requirements o The HVAC and odor control systems do not operate in a sustained manner. They operate intermittently, similar to the function of a normal residential air conditioner or heat pump. Their outdoor equipment sound pressure levels can be about 70 dbA'. o DCC 18.1 16.330(B)(1 1)(a), requires noise no louder than 30 dbA at any property line, between 10pm and 7am. o As required in DCC 18.116.330(B)(6)(a), marijuana production facilities have a minimum setback of 100 ft. from the nearest property line. o Sound pressure is reduced by 6dbA each time the distance from the noise source is doubled; this is the inverse square law2. Therefore, if the source noise is 70 dbA, the setback distance is 100 ft, then the sound pressure level at the property line will be 70 - 20log(100/1) = 30 dbA which meets the noise requirement. o Typically, a marijuana production facility does not need heating from an HVAC system in the winter time; this is because the indoor lighting generally produces enough ambient heating to keep the indoor environment warm without using the HVAC system, even at night between 10pm and 7pm. ' Split System Cooling Product Data. (n.d.). Retrieved from http://www.trane.com/content/dam/Trane/Commercial/global/products-systems/equ ipment/un itary/sp 1 it- systems/spl it -systems- I-1-2-to-5-tons/22-1904-1 G-EN_03012016.pdf z The Inverse Square Law. (n.d.) Retrieved from http://www.engineeringtoolbox.com/inverse-square-law- d_890.html Analysis of Conclusion Norma Tewalt's marijuana production facility at 69188 Goodrich RD Sisters, OR meets the odor control system requirement of DCC 18.116.330(B)(10) and complies with the noise requirements of DCC 18.116.330(B)(11), as provided in the methodology section of this report. Sincerely, Jay J. Castino, PE Principal I,p�s`Si 7768GPE r ",Qr ✓gMES C�S� EXPIRES 12/31/17