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2017-811-Minutes for Meeting October 04,2017 Recorded 11/21/2017Recorded in Deschutes County CJ2017-811 Nancy Blankenship, County Clerk Commissioners' Journal 11/21/2017 4:34:40 PM IIIIIIIIIIIIIIIIIIII 11111111 1112017- 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 WORK SESSION DESCHUTES COUNTY BOARD OF COMMISSIONERS Allen Conference Room Wednesday, October 4, 2017 Present were Commissioners Anthony DeBone and Phil Henderson. Commissioner Tammy Baney was absent. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; Christopher Ogren, Administrative Intern; and Sharon Ross, Board Executive Secretary. One representative of the media was in attendance as well as several citizens. CALL TO ORDER: Vice -Chair DeBone opened the meeting at 1:32 p.m. ACTION ITEMS 1. Veteran's Service Office — Increased State Funding Erik Kropp, Deputy County Administrator and Keith McNamara, Veterans Services Officer presented the item. Mr. Kropp reported the Veteran's Services office is funded through revenues from the State of Oregon Department of Veterans Affairs and the County's General Fund. After the budget adoption this year, the state increased funding for county veteran services offices throughout the state and the portion to Deschutes County is $65,283. To account for the funding, the counties are required to reflect on planned expenditures. Mr. McNamara noted a few options for the funding would be to extend services to the La Pine area, provide assistance with transportation to medical appointments, upgrade office technology to keep up with electronic claims, and development of a social media campaign and a county benefits expo for veterans. The additional funds will be presented through a budget adjustment to this fiscal year. This increase in funding is expected annually. Another item to Minutes of Board of Commissioners' Work Session October 4, 2017 Page 1 of 6 announce was the office will also start outreach at the Veterans Outreach Ranch tomorrow. Veterans come to work on the ranch and do not live there. Mr. McNamara reported the nursing care beds should be open for veterans needing care by the end of the month. Commissioner DeBone commented on the social media and outreach and suggested including a branding effort that will resonate with the veteran's community. County Administrator Anderson noted the core function of the office is to assist veterans with benefits and at some point it may be appropriate to look at what our veterans office does and go beyond assistance for benefits. Another item of interest for the office is to have website access for veterans for VA claims and provide an e -benefits class for veterans. Discussion held on extension of services and if there is a need for additional staffing. Mr. Kropp commented maybe an added limited duration hire could be considered at this time. 2. Discussion and Consideration of Commenting on Nomination of the Central Oregon Canal for National Register of Historic Places This presentation was audio recorded. Matt Martin presented explaining a nomination to list a segment of the Central Oregon Canal as a historic district on the National Register of Historic Places has been submitted to the Oregon State Historic Preservation Office and asked the Board for their opinion on whether or not to comment. There is a 60 -day comment period and Deschutes County as a certified local government is afforded comment. The Historic Landmarks Commission has received testimony and recommendation will be provided to the National Register at the National Parks Service for final decision. The canal itself is operated and managed by Central Oregon Irrigation District but is asserted by adjacent homeowners to be located within an easement. Mr. Martin noted an e error in providing notice to the County; the required notice was not provided to Chair Baney but was incorrectly sent to the City of Bend Mayor. This error can extend the comment period by 60 -days. Commissioner DeBone commented that the last time the the Board commented on a historic designation (Pilot Butte canal), the County's position was not considered or even acknowledged. Discussion held on historical designations, maintenance and repair. Any maintenance to the structure requires review by the historic landmarks commission. The designation is for the canal feature and bed and banks not the water itself. Discussion held on public access points. There are 35 properties that will be affected. Commissioners Henderson and DeBone would like to hear from COID. Mr. Martin stated the information from the testimony heard on Monday night at the historic landmarks commission can be shared with the Board. Commissioner DeBone noted interest in the process of the completion through the historic landmarks commission and requests the discussion come back on October 11. CDD Staff will facilitate a site visit for Commissioners Henderson and DeBone. Minutes of Board of Commissioners' Work Session October 4, 2017 Page 2 of 6 3. Thornburgh Resort / Remand Proceedings This presentation was audio recorded. Nick Lelack, Community Development Department and Adam Smith, Assistant Legal Counsel presented. On September 18, Thornburgh Resort issued a remand under state law and Deschutes County has 120 days to complete the process. This will be a matter that will be referred to a hearings officer. Staff recommends the Board establish parameters via an Order. Staff recommend a one -word change in the Order. The hearing is tentatively scheduled for Monday, October 30. After decision by the hearings officer there is a 12 -day appeal period and then Board has an opportunity to hear or not hear. HENDERSON: Move approval of Order 2017-036 as amended DEBONE: Second VOTE: HENDERSON: Yes BANEY: Absent, excused DEBONE: Vice chair votes yes. Motion Carried 4. Possible Marijuana Production Appeal Cynthia Smidt, Community Development Department presented this item. The applicant is requesting administrative determinations and site plan review to establish a marijuana production and processing facility on a 55.8 acre parcel in the Exclusive Farm Use Zone on Highway 126 outside of Redmond. Staff noted the concern with various issues with an incomplete application. With the 150 -day clock and currently we are at day 120. The clock begins when the application is deemed "complete." The application process was delayed a bit as the applicant needed a traffic analysis. The applicant has been out of the county and has been unable to be reached by phone. If the Board calls up now instead of going with the hearings officer the first hearing could be either October 30 or November 1. Commissioners Henderson and DeBone are both supportive of hearing the appeal. HENDERSON: Move approval of 2017-040 DEBONE: Second VOTE: HENDERSON: Yes BANEY: Absent, excused. DEBONE: Vice -chair votes yes. Motion Carried Minutes of Board of Commissioners' Work Session October 4, 2017 Page 3 of 6 OTHER ITEMS • Marijuana Evaluation: Matt Martin, Community Development Department, presented the revised draft for review. Focus groups for community outreach and interviews with stakeholders can be planned for the next few weeks. The target would be representatives that have a license with OLCC and invitations for general public would be going out to notice area around the licensed facilities. There are 56 property owners that will receive an invitation to participate. The 8 license holders will be contacted. These will be meetings that are open to the public and held in Barnes and Sawyer. Commissioner DeBone inquired on a press release that noted the focus group dates and times instead which would cover the public notice requirements. The format of discussion will need to be specified and shaped to bulleted items. Mr. Martin will do a direct mailing to the adjacent property owners close to a licensed operation. Commissioner Henderson is interested in hearing the testimony. Discussion held on public meeting attendance and not as a participant. Commissioner DeBone commented on having invitations for the focus groups and is not opposed to having public meetings. The focus groups and interviews may be pushed back from middle of October but want to complete the process by December. Discussion held on having a joint meeting with the Planning Commission. A Work Session discussion will be held before the Planning Commissioner meeting. This item will be on the agenda of November Stn • Commissioner DeBone requested information on the budget committee applications • Commissioner Henderson asked to revisit the request of support from the Sunriver La Pine Economic Development for their annual luncheon. This was a community event to celebrate economic development. Commissioner Henderson committed a sponsorship of $300. The Board supported a discretionary grant with $150 contribution from each Commissioner Henderson and DeBone. HENDERSON: Move approval DEBONE: Second Vote: HENDERSON: Yes BANEY: Absent, excused DEBONE: Vice -Chair votes yes. Motion Carried • Forest Plan Revision: Commissioner DeBone attended the Eastern Oregon Counties Association meeting yesterday. The main purpose of the meeting was to define county priorities for the Blue Mountain Forest Plan which guides the management of the Malheur, Wallowa -Whitman, and Umatilla National Forests. Ed Keith, County Forester was invited to the Work Session to explain the process and how it relates to Deschutes County. Part of the concerns counties had with the Blue Mountain plan as is being proposed revolve around the impact of cattle Minutes of Board of Commissioners' Work Session October 4, 2017 Page 4 of 6 grazing. Mr. Keith said there is little grazing in the Deschutes National Forest compared to extensive grazing of the past. There is still some grazing allotments on the eastern part of the forest. The plan for Deschutes National Forest was meant to cover ten to fifteen years and it is well past due for revision. Mr. Keith expects forest plan revision should start fairly soon for the Deschutes National Forest. Our current plan was approved in 1990. Commissioner DeBone reported another meeting on the topic will be held on Monday, October 16th in Pendleton and further discussions maybe held during the annual AOC conference in Eugene in November. Commissioner Henderson inquired if there will be a review on the fires this year. Mr. Keith commented there will be a team review that will be done to determine what needs to happen to stabilize soils before the fall rains. • County Administrator Anderson reported the 2018 Board Retreat has been scheduled for January 30th at the Juvenile Department. Supporting documents for review will be submitted well in advance. • County Administrator Anderson inquired if the Board wanted to sponsor a table at the Bend Chamber Economic Forecast Breakfast on November 1. The board expressed support of a table. • County Administrator Anderson stated the regularly scheduled joint meeting with the City of Sisters is scheduled for October 25. A draft agenda from the City of Sisters has suggested updates on EDCO and initial meeting the Sisters country visioning. Commissioner Henderson would like to hear on the fire impacts on businesses and evacuations. Ed Keith, County Forester and Alison Green, Project Wildfire will be invited. At the time of 3:29 p.m., the Board went into Executive Session under ORS 192.660 (2) (e) Real Property Negotiations. The Board came out of Executive Session at 4:12 p.m. OTHER ITEMS Continued: • County Administrator Anderson reviewed the draft agenda for the Joint Meeting with the City of La Pine. Items to include are discussions on exchange agreement for the County letting go of jurisdiction within the City in exchange for lands. A discussion on county owned land and road maintenance costs will need to occur. Commissioner DeBone suggested having an update from the Sheriff's Office about public safety. Another item to include would be an update from Economic Development. Also to include would be Health Services for an update on services in the community. Minutes of Board of Commissioners' Work Session October 4, 2017 Page 5 of 6 ADJOURN: Being no further discussion, the meeting adjourned at 4:30 p.m. DATED this O Day of if` cr1!' Commissioners. Recording Secretary 2017 for the Deschutes County Board of Tammy Baney, Cha. Anthony DeBone, Vice Chair Philip G. Heerson, Commissioner Minutes of Board of Commissioners' Work Session October 4, 2017 Page 6 of 6 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ WORK SESSION AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:30 PM, WEDNESDAY, OCTOBER 4, 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 addressed 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. Work Sessions allow the Board to discuss items in a less formal setting. Citizen comment is not allowed, although it may be permitted at the Board's discretion. If allowed, citizen comments regarding matters that are or have been the subject of a public hearing process will NOT be included in the official record of that hearing. Work Sessions are not normally video or audio recorded, but written minutes are taken for the record. CALL TO ORDER ACTION ITEMS 1. Veterans' Service Office - Increased State Funding - Erik Kropp, Deputy County Administrator 2. Discussion and Consideration of Commenting on Nomination of the Central Oregon Canal for National Register of Historic Places - Matthew Martin, Senior Planner 3. Thornburgh Resort / Remand Proceedings / Order - Peter Gutowsky, Planning Manager 4. Possible Marijuana Production Appeal - Cynthia Smidt EXECUTIVE SESSION 5. Executive Session under ORS 192.660 (2) (e) Real Property Negotiations At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. Board of Commissioners Work Session Agenda Wednesday, October 4, 2017 Page 1 of 2 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. ADJOURN 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.orq/meetinqcalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Work Session Agenda Wednesday, October 4, 2017 Page 2 of 2 fuelanes 0008 c4 uineJ aseeici 1Page # of Pages fl\,4 ) k (A % - ri. Name Agency Mailing Address City (Please Print) Work Session 11, v- ---) D lb. \3 -4. ,k IA Oi Zip Phone # e-mail address c-no3 c oibi›nd Gaic, 'IC IES o -< Deschutes County Board of Commissioners 1300 NW WaII St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of October 4, 2017 DATE: September 27, 2017 FROM: Erik Kropp, Administrative Services, 541-388-6584 TITLE OF AGENDA ITEM: Veterans' Service Office - Increased State Funding RECOMMENDATION & ACTION REQUESTED: See attached staff report. ATTENDANCE: Erik Kropp, Deputy County Administrator; Keith MacNamara, Veterans Service Officer SUMMARY: See attached staff report. Deschutes County Department of Administration P. O. Box 6005, Bend, OR 97708-6005 1300 NW Wall St., Suite 200, Bend OR 97701-1960 (541) 388-6584 - Fax (541) 385-3202 www.deschutes.org Date: September 26, 2017 To: Board of County Commissioners From: Erik Kropp, Deputy County Administrator Keith MacNamara, Veterans Service Officer Re: Increased State Funding for Veterans' Service Office The Veterans' Service Office (VSO) is funded by a mix of revenue from the State of Oregon Department of Veterans' Affairs (ODVA) and the County's General Fund. After the County adopted its FY 17-18 Budget, the State of Oregon increased funding for county veteran service offices throughout the state. Please see the attached "2017 Legislative Session Highlights" overview published by the Oregon Department of Veterans' Affairs. Deschutes County's share of this increased funding for FY 17-18 is $65,283. The table below provides a summary of the adopted budget for the Veterans' Service Office for the current and last two fiscal years and identifies the new state revenue for FY 17-18. Staff would like to discuss with the Board ideas on how best to expand or enhance VSO services with the additional revenue. Veterans Service Office Budget (Revenue) FY 15-16 FY 16-17 FY 17-18 County General Fund $ 317,879 $ 325,273 $ 332,345 State Payments $ 98,121 $ 97,400 n/a n/a $ 96,940 $ 65,283 Additional State Payments (new revenue) Total Revenue $ 416,000 $ 422,673 $ 494,568 To account for the additional funds, ODVA is requiring counties to process budget adjustments reflecting the additional revenue as well as planned expenditures. State law (ORS 406.460) does not allow counties to supplant county general funds with state funds, unless the county is going through systematic budget reductions. ODVA provided examples of expenditures for the new funds: add staff, increase a part-time position to full-time, add a new outreach office location, update office technology, etc. Currently, there is not a need for additional staff in the VSO - an additional position was added in FY 15- 16. Below is a proposed list of new or enhanced services that could be funded by the additional revenue from the state: 1. Coordinate with the La Pine veterans outreach (all volunteer facility) to assist veterans with hardships to determine eligibility for VA benefits and other local resources. 2. Work with the Deschutes County Health Services Department's Homeless Outreach Coordinator to assist veterans who are homeless. 3. Work with the Deschutes County Health Services Department's Suicide Prevention Coordinator to enhance efforts to assist veterans. 4. Develop an outreach program to assist veterans with transportation needs to attend medical appointments in Portland and Central Oregon. In the past, using a grant from ODOT, Deschutes County VSO provided veterans Cascades East Transit vouchers for transportation to medical appointments. 5. Upgrade office technology to improve claims processing. 6. Purchase AV (audio visual) equipment for outreach presentations. 7. Develop a social media outreach campaign for veterans. 8. Rent office space at the Central Oregon Veterans Ranch for outreach services. 9. Partner with local veterans service providers to hold a benefits expo for veterans. At your Work Session, staff will seek Board input on this list and solicit other ideas. After discussion with the Board, staff will prepare a budget adjustment for the VSO. OREGON DEPARTMENT VETERANS' AFFAIRS OREGON SALUTES OUR FOUR GENERATIONS OF VETERANS AND THEIR FAMILIES Measure 96 passed last November with a resounding 84% approval by Oregonians and now dedicates 1.5% of net lottery revenues to better serve our veterans and their families. As a result of this broad citizen support and the bipartisan leadership of the Governor and Legislature this Session, Oregon is making historic investments in local and statewide veteran services. Thank you to our veterans' community and partners, elected leaders and all Oregonians for their incredible advocacy and support — together, we will ensure that veterans and their families thrive in Oregon. GENERAL FUND AND LOTTERY FUND FOR OREGON VETERANS PASS-THROUGH TO COUNTIES, NATIONALSERVICE ORGS ANO -COMMUNITY 3;✓.. PARi'N RS .. There is $26.1 million in combined General Fund and Lottery Funds for services to veterans in the 2017-19 biennium (prior biennial funding for veteran services was $10.4 million General Fund). These essential resources help fund statewide veteran services as well as pass through funding to local partners like County Veteran Service Offices, National Service Organizations and community non -profits. • $4.5 million to double the current level of funding for county veteran service officers and national service organizations $4.1 million to secure Oregon's veteran home loan program for future generations $3.9 million to sustain county veteran service office funding and enhance statewide veteran services $1.5 million to support veterans' housing and homelessness prevention efforts • $1.2 million to establish a grant fund to support student veteran success on campus • $555,000 to establish a grant fund to support non-profit and community partner efforts • $350,000 to support a veterans' crisis and suicide prevention hotline • $245,000 to establish a veteran volunteer program • $2.3 million to establish a reserve balance in the veteran services fund MORE INFORMATION ABOUT THE 2017 LEGISLATIVE SESSION CAN BE FOUND ONLINE AT WWW,OREGON.GOV/ODVA/PAGES/VETSLEG,ASPX j OREGON DEPARTMENT o/'VETERANS' AFFAIRS In addition to the existing General Fund and new Lottery Funds for veteran services, there are other significant investments made for Oregon's veterans and their families in this biennial budget. They include additional funding for mental health resources and capital construction projects. MENTAL HEALTH $2.5 million invested through Oregon Health Authority to improve veterans' access to mental health resources CAPITAL CONSTRUCTION $2.5 million authorized for Oregon Veterans' Home facility improvements in Lebanon and The Dalles $10.5 million authorized for a third Oregon Veterans Home $250,000 authorized for the Vietnam Veterans Memorial Wall replica project in Southern Oregon VETERAN POLICY BILLS COMMUNITY SERVICES HB 2891 — Establishes a new Veteran Services Grant Fund to better support non- profits and community partners serving veterans and their families HB 2908 — Creates a veteran volunteer progra m HEALTH CARE SB 81 — Targets efforts to help veterans better navigate health care resources HONOR AND RECOGNITION HB 2100 — Designates Highway 20 as the Oregon Medal of Honor Memorial Highway HB 2880 — Expands public buildings required to display the POW/MIA flag SB 992 — Designates the third Friday in September as Oregon POW/MIA Recognition Day SB 993 — Designates August 7th of each year as Oregon Purple Heart Recognition Day HB 3207 — Designates part of Interstate 5 as Atomic Veteran Memorial Highway LICENSE PLATES HB 2149 — Sets one-time $15 vehicle registration fee for former POWs RECREATION SB 116 — Eliminates state forest user fees for service connected disabled veterans TRIBAL VETERAN SB 80 — Focuses outreach and support to Oregon's tribal veterans HB 2405 — Adds tribal governments to local and regional governments that are eligible to apply for state park grants to construct or restore veterans and war memorials STUDENT VETERANS HB 2565 — Streamlines process to ensure veterans receive priority registration at community colleges and universities HB 3423 — Allows flexibility for Oregon National Guard service members to participate in Oregon Promise grants SB 143 — Establishes a grant program to support student veteran success on college and university campus MORE INFORMATION ABOUT THE 2017 LEGISLATIVE SESSION CAN BE FOUND ONLINE AT WWW.OREGON.GOV/ODVA /PAGES/VETSLEG..ASPX TES D ,g.: -< Deschutes County Board of Commissioners 1300 NW WaII St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of October 4, 2017 DATE: September 29, 2017 FROM: Matthew Martin, Community Development, 541-330-4620 TITLE OF AGENDA ITEM: Discussion and Consideration of Commenting on Nomination of the Central Oregon Canal for National Register of Historic Places RECOMMENDATION & ACTION REQUESTED: Discuss and Consider Commenting on Nomination of the Central Oregon Canal for National Register of Historic Places SUMMARY: A nomination to list a segment of the Central Oregon Canal as a historic district on the National Register of Historic Places has been submitted to the Oregon State Historic Preservation Office (SHPO). The purpose of this item is to provide the Board a summary related to the nomination of determine if the Board wants to submit comments. Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM DATE: September 28, 2017 TO: Deschutes County Board of Commissioner FROM: Matthew Martin, AICP, Senior Planner RE: Central Oregon Canal Nomination for the National Register of Historic Place The purpose of this memorandum is to provide a summary related to the nomination of a segment of the Central Oregon Canal for the National Register of Historic Places to assist the Board of Commissioners (Board) in determining how or if to submit comments. This summary includes: A. Nomination Overview B. Nomination Review Schedule C. Canal Ownership/Easement A. NOMINATION OVERVIEW A nomination to list a segment of the Central Oregon Canal as a historic district on the National Register of Historic Places has been submitted to the Oregon State Historic Preservation Office (SHPO). As shown on the attached vicinity map (Attachment 1), the proposed district is located southeast of the City of Bend and generally bound by Ward Road to the west and Gosney Road to the east. The materials received from SHPO include: • August 16, 2017, Cover Letter from SHPO (Attachment 2) • Agenda for the October 20, 2017 Meeting of the State Advisory Committee on Historic Preservation (Attachment 3) • July 21, 2017, Memo from SHPO to Patricia Kliewer, Preparer (Attachment 4) • National Register Nomination Evaluation Sheet (Attachment 5) • National Register of Historic Placer Registration Form (nomination)1 Deschutes County as a Certified Local Government (CLG) is afforded the opportunity to review and comment on the nomination. 1 Due to the size of the electronic version of the National Register of Historic Places Registration Form (16MB) it is not attached. The document can be found at the following link: http://www.oregon.gov/oprd/HCD/NATREG/docs/sachp docs/CentralOregonCanalHD SACHP Draft.pdf Quality Services Performed zrwitlr Pride B. NOMINATION REVIEW SCHEDULE 10/2/17 The Deschutes County Historic Landmarks Commission (HLC) is scheduled to review the nomination. 10/4/17 A work session with the Board is scheduled to discuss the nomination. Staff will provide a verbal report on any comments and/or recommendations made by the HLC. The Board can determine what, if any, comments or action to take. 10/20/17 The State Advisory Committee on Historic Preservation (SACHP) is scheduled to review the nomination. For comments to be considered by SACHP, responses from the County must be submitted in advance of this meeting. Next Following the meeting on October 20th, SACHP will make a recommendation Steps to the State Historic Preservation Officer to approve or deny the document, or choose to table the issue for a future meeting. If recommended for approval or denial, the document will be held by SHPO for a 90 -day comment period. The State Historic Preservation Officer will then make a recommendation to the National Park Service (NPS), the federal agency responsible for the administration of the National Register of Historic Places. The NPS will review the document for 45 calendar days. C. CANAL OWNERSHIP/EASEMENT The Central Oregon Canal is operated by the Central Oregon Irrigation District (COID) via an easement. The regulations applicable to the National Register of Historic Places state: "The term owner or owners means those individuals, partnerships, corporations or public agencies holding fee simple title to property. Owner or owners does not include individuals, partnerships, corporations or public agencies holding easements or less than fee interests (including leaseholds) of any nature." (36 CFR 60.3) Based on this definition, the owners of the underlying real property are owners of the canal, not COID. Nevertheless, Craig Horrell, COID Director, submitted a memo on September 7, 2017 addressing the nomination (Attachment 6). Attachments: 1. Proposed Historic District Vicinity Map 2. 8/16/17 Cover Letter from SHPO 3. Agenda for the 10/20/17 Meeting of the SACHP 4. 7/21/17 Memo from SHPO to Patricia Kliewer, Preparer 5. National Register Nomination Evaluation Sheet 6. 9/7/17 Memo from Craig Horrell, COID Attachment 1 Proposed Central Oregon Canal Historic District Vicinity Map �., a > ;,. ,w"{."'. '.>' Mt n?' i"„ ;-'I?�: •'fM r>".r ,.,...^F< .. .�„ :/;,,.• .y, .. .. .,.;�>y . . 'S? • t!'' E, '7R �.♦ [ f.•1 .:..i<Fw , ✓ fJ/ / y♦ S `Nt.,•ta .i i:ft si.•1�.`. 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'4•';'; ° ; f �:.. ,:. �..3 • • a�r>.3� ss' i6 /40 �;:ta'?;::ui::�%, Attachment 2 Kate Brown, Governor August 16, 2017 Mr. Matthew Martin Deschutes County Historic Landmarks Commission PO Box 6500 117 NW Lafayette Ave Bend, OR 97708 :Dear Mr. Martin: Parks and Recreation Department State Historic Preservation Office 725 Summer St NE Ste C Salem, OR 973014266 Phone (503) 986-0690 Fax (503) 986-0793 www.oregonheritage.org ig67.4 Nature HISTORY Discovery The State Advisory Committee on Historic Preservation will review the following property for nomination to the National Register of Historic Places at its next meeting in Salem, Oregon, on October 20, 2017: CENTRAL OREGON CANAL HISTORIC DISTRICT (WARD ROAD - GOSNEY ROAD SEGMENT) BEND Staff contact: Jason Allen, Survey Program Coordinator, (503)986-0579 :Enclosed you will find a CLG evaluation form. Please return the form with your review board's comments to the State Historic Preservation Office as soon as possible before the State A.dvisory Committee meeting date. You are invited to attend the forthcoming meeting of the State Advisory Committee on Historic Preservation. The date and. location of the meeting are given on the agenda enclosed. If questions concerning th.e National Register nomination process arise, please contact the coordinator listed. below the property information. Sincerely, — . ntstme Curran Xputy State Historic Preservation Officer Encl. Attachment 3 egon Parks and Recreation Department State Historic Preservation Office 725 Summer St NE Ste C Salem, OR 97301-1266 Phone (503) 986-0690 Fax (503) 986-0793 State Advisory Committee on Historic Preservation www.oregon.heritage,org Meeting Agenda North Mall Office Building, Room 124 A and B 725 Summer Street NE Salem, OR 97301 Kole Brown, Governor V;;I',,i'•':Zif")' \ , Arettirai HIETOY IlltscoYe Friday, October 20, 2017 MEET North Mall Office Building, Room 124 8:30 Leaving from North Mall Office Building TOUR Oregon Supreme Court Building 9:00 1163 State Street TOUR Salem Train Station Baggage Depot 10:00 500 13th Street SE TOUR Roth/McGilchrist Building 11:00 102-110 Liberty Street SE WORKING LUNCH (NMOB) 12:00 Presentation and Discussion: Review: Application of the National Register Significance Criteria and Criteria Considerations Ian Johnson and Matt Diederich Discussion Review of Committee rules; looking ahead to rules revisions, Fall 2017 Ian Johnson Presentation Oregon Heritage All-Star Communities Kuri Gill This location is accessible to persons with disabilities. Special accommodations for the hearing Impaired require advance notification to the State Historic Preservation Office "' regon Parks and Recreation Department State Historic Preservation Office 725 Summer St NE Ste C Salem, OR 97301-1266 Phone (503) 9864)690 Fax (503) 986-0793 State Advisory Committee on Historic Preservation www.oregonheritage.org Meeting Agenda North Mali Office Building, Room 124 A and B 725 Summer Street NE Salem, OR 97301 Kate Brown, Governor BEGIN BUSINESS MEETING 1. Opening remarks and introductions 2. Discussion of issues of Interest and concern to the public not on the agenda 3 Approval of agenda 4. Approval of minutes of previous meeting 5. Update from the Deputy SHPO and Associate Deputy SHPO 6. Review of properties proposed for listing in the National Register of Historic Places: Julie Central Oregon Canal Historic District Jason Bend vety, Deschutes County Proponent: Private Party Steve Spring Valley School Jason Zena vcty, Polk County Proponent: Spring Valley Community Center (6.C";',"6(9'•;/'; isiaToyew 2:30 2:45 3:45 END BUSINESS MEETING 4:30 This location is accessible to persons with disabilities, Special accommodations for the hearing impaired require advance notification to the State Historic Preservation Office '" • It appears that the section heading, "Location, Geography and Geology of the Pilot Butte Canal" On page 4 should be "of the Central Oregon Canal." Please correct this error. • Please clarify the following: Pp. 9, "District Boundary" section, 1st paragraph, sixth line — "...within the west half and the northest quarter..." — is this meant to be northeast, or northwest? • Elements within the district that are originally built outside the Period of Significance cannot be classified as contributing to the district. This seems to be the case with Bear Creek Ranch Bridge (1928), and possibly Burt Chute, which seems like it may have been built after the arrival of Mr. Burt on the property in 1921 (no specific date is given for this structure). Please review the contributing and non-contributing elements within the district and classify with respect to the Period of Significance established for the district. To address this, the Period of Significance can be adjusted to a later (but still defensible) closing date, or the elements postdating the close of the Period of Significance can be reclassified as non-contributing. Be sure to adjust maps, etc. to reflect any changes made. Requested Revisions • As much as possible, please place special focus on describing character -defining elements/features in the nominated area, such that when defining the significance of these in Section 8 the relationship is easy for the reader to understand. • Consider integrating all of the location information, including the elevation, geology, nearby development, etc. into a single discussion under the heading "Setting." • Please consider relocating the discussion of the field survey employed to support the nomination from Section 7 (pp.12) to Section 10 or an appendix. Section 8, Significance Required Revisions • Please begin the Period of Significance in 1905, the date of construction. The period of significance cannot predate the construction of the nominated segment. • The close of the Period of Significance is linked to the transfer of the system to COID, but it is not readily apparent from the justification why this is a suitable breaking. On pp. 47 of the nomination, it is noted that COID made adjustments to the canal to increase flow. Could this event be used to establish the close of the period of significance? • It appears that the nomination lacks the required Statement of Significance Summary Paragraph section at the beginning of the narrative portion of Section 8. Please reinsert that part of the form, and provide a single, brief paragraph that establishes the significance of the nominated segment. See our guide "Preparing National Register Nominations in Oregon" for guidance on this topic. • The opening paragraph of Statement of Significance indicates that the Central Oregon Canal, being the largest conveyor of water on the Central Oregon Project, is directly related to the founding of Bend and Redmond. Since Redmond is on the Pilot Butte Canal, and the nominated segment is well beyond Bend's city limits, it is not clear how the nominated segment, specifically, relates to the founding of these cities. The association with the settlement of downstream communities/areas like Powell Butte and Alfalfa, however, is unique to the Central Oregon Canal and relevant to the nominated segment, and should be emphasized. • The nomination appears to assert that the nominated segment is both representative of the Central Oregon Canal, and unique within the Central Oregon Canal, which seems to be internally at odds. Please clarify how the nominated segment relates to the rest of the Central Oregon Canal with reference to its physical presentation. • As written, the nomination effectively establishes the eligibility of the Central Oregon Canal. However, because the nomination focuses on a segment of the Central Oregon Canal, a district within a district, please orient the comparative analysis to provide comparison with other segments of the Central Oregon Canal, rather than comparing the Central Oregon Canal with other canals in the upper Deschutes basin. Include explicitly what the reader is to take away from the comparisons, in terms of the uniqueness and significance of the nominated segment. Requested Revisions • The significance of the nominated segment is explicitly established in the very last heading in Section 8 (pp.111-113). It would greatly aid the reader to understand the significance of this specific segment if this discussion were moved forward in Section 8, addressed as early as possible. • Consider scaling back on the volume of information regarding the Pilot Butte Canal, except that which is relevant to establish the relationship between the Central Oregon Canal and the Pilot Butte Canal. Briefly establish the historical relationship, then focus on the development of the Central Oregon Canal, and increasingly zero in on the development and significance of the nominated segment. This will help to keep the argument for significance focused and readily apparent to the reader. • Consider scaling back the detail provided in the "Original Settlers" discussion (pp. 102- 103) to include just the information that is directly relevant to establishing the significance of the nominated segment. Section 10, Boundary Description and Justification Required Revisions • Please review the justification for the eastern and western boundaries established for the nominated segment, and consider how these can be strengthened. For example, while the nomination asserts that west of the boundary the setting is increasingly suburban, that change doesn't appear to happen until the vicinity of Rigel Way, and the intervening stretch appears to demonstrate several of the character -defining features described in the nomination. The eastern boundary justification should be explicitly addressed. If it is the presence of the Ward Road and Gosney Road bridges that defines the boundaries, please state this explicitly, and relate that to integrity. If there is a change in the character of the canal after Gosney Road, please be explicit as to what that character change is. Please Note: All required revisions must be thoroughly addressed in order for the nomination to move forward to the next regular meeting of the State Advisory Committee on Historic Preservation (SACHP). The preparer may or may not choose to address suggested revisions; however, a copy of this document will be made available to the SACHP. Please submit revised nominations elec.:tronic aj , in a. Word document. to jason,allran@ori Qon.gpy or mail it in on a CD. The SHPO may make additional changes before submitting the draft to the SACHP. REVISIONS ARE DUE BY AUGUST 14, 2017 Attachment 4 State Historic Preservation Office 725 Summer St. N.E., Suite C Salem, OR 97301 MEMORANDUM DATE: July 21, 2017 TO: Patricia Kliewer, preparer FROM: Jason Allen, National Register Program, State Historic Preservation Office RE: Revisions for the Central Oregon Canal Historic District (Ward Road — Gosney Road Segment) Thank you for submitting the Central Oregon Canal Historic District (Ward Road — Gosney Road Segment) for listing in the National Register. Below is a list of required revisions to address and recommended items to consider before the nomination is forwarded to the State Advisory Committee on Historic Preservation (SACHP) for consideration. In addition to these revisions, please take time to thoroughly address any typos, spelling and punctuation errors, and ensure that capitalization and abbreviations are consistent throughout. Please feel free to contact me with any questions at (503) 986-0579 or jason.allen@oregon.gov. General Requested Revisions • Please maintain a division between physical descriptive elements in the nomination (Section 7) and historical contextual elements of the nomination (Section 8) for ease of reading and to eliminate repetition. For example, the discussion of the purpose of the Central Oregon Canal in Section 7 (pp.8-9) would be better discussed in Section 8. Likewise, the description of the area on pp.47 in Section 8 is more relevant in Section 7, "Setting." Where possible, refer to previous sections instead of repeating information. • As written the nomination includes excellent research; however, some of the information is not required to make the case for listing the nominated segment. Consider trimming the information to include that which is directly relevant to characterizing and establishing the historical significance of the nominated segment specifically to sharpen the argument for listing. • Wherever appropriate, consider referencing maps to assist the reader in locating the nominated segment within the larger irrigation system, and specific elements within the nominated segment. Section 7, Description Required Revisions • Please shorten the Section 7 summary to a single, brief paragraph that captures the key descriptive elements of the nominated segment. See our guide "Preparing National Register Nominations in Oregon" for guidance on this topic. Please generally note the presence of non -historic residence and non -permanent elements within the nominated area in the summary paragraph, with specific mention that these are non-contributing to the nominated district. Attachment 5 NATIONAL REGISTER NOMINATION EVALUATION SHEET Certified Local Governments / Historic Landmark Commissions The following property is being nominated to the National Register of Historic Places and will be reviewed by the State Advisory Committee on Historic Preservation (SACHP) at its meeting on 10/20/2017. PROPERTY NAME: CENTRAL OREGON CANAL HISTORIC DISTRICT (WARD ROAD - GOSNEY ROAD SEGMENT) ADDRESS: OK Concerns BEND, DESCHUTES COUNTY INTEGRITY: Major alterations or additions? New materials? Altered setting? Moved? etc. DESCRIPTION: Is the property adequately described? Have contributing and non-contributing OK Concerns - features been clearly identified? OK Concerns OK Concerns OK Concerns SIGNIFICANCE and CONTEXT: Has the appropriate criterion been used? Has it been justified? Is the context sufficient in breadth and depth to support the claims of significance? FACTS AND Are the appropriate and best sources used? Are key dates and facts SOURCES: accurate? SUPPORTING Adequate photos, maps, drawings, etc.? MATERIALS: The Commission recommends that the property or properties appear to meet the National Register criteria and should be listed in the National Register. The Commission recommends that the property or properties do not appear to meet the National Register criteria and should not be listed in the National Register. Return to: Oregon State Historic Preservation Office ATTN: National Register Coordinator �.............,_._...... .._.._—.........__....... 725 Summer Street, N.E., Suite C Signature of Commission Chair (or Designee) Date Salem, OR 97301 Name of Local Historic Preservation Commission Attachment 6 IP CENTRAL ©RECON MEMO To: Matt Martin, Deschutes County From: Craig Horrell, COID Date: September 7, 2017 RE: Historic Nomination of COID Canal Dear Matt, Thank you for your inquiry about COID's position regarding the historic nomination of the section of the Central Oregon Canal between Ward Road and Gosney Road. We have not been provided a copy of the nomination, so the following are only our preliminary concerns. 1. Conflict with MPD/other nominations COID recently completed a multi-year study and preparation of a Multiple Property Document that provided a comprehensive analysis of the historic resources that make up the irrigation systems within our region. That process resulted in a formal MPD approved by the National Park Service, as well as nomination of important and representative sections of the Pilot Butte Canal and Central Oregon Canal at Redmond and Brasada Ranch. Our thorough, systematic process reflected an enormous investment of time and money in order to thoroughly study, document, and preserve important historic resources. In contrast, the piecemeal "hostile nomination" of COID canal sections by those opposed to conservation projects lack the study, documentation, analysis, and holistic approach that COID has taken. If SHPO allows this piecemeal nomination process to proceed, it will undermine the efficacy and value of the MPD process and discourage entities like COID from investing in thorough study and analysis of historic resources. This is bad policy and bad precedent. 2. COID Ownership COID owns the canal as well as significant parcels of the adjacent land. COID acquired its interest in the Central Oregon Canal thorough Carey Act irrigation rights-of-way more than 100 years ago. In addition, COID owns in fee title several parcels of land adjacent to the canal in this section. Despite our ownership, we have yet to receive a copy of the nomination and have not been consulted. Again, SHPO's allowance of hostile nominations without the consent or approval of property owners is seriously problematic and the County should discourage this precedent. CENTRAL DREGRN DISTRICT 3. Lack of Historic Value The canal section between Ward and Gosney Roads may be the single section of canal that presents COID with the largest maintenance and operational challenges. Over the years, we have had constant maintenance challenges in this section. We have faced problems with burrowing animals, erosion, and ground collapse that have required COID to add rip rap, perform excavation, add soil, and/or make other modifications on a nearly annual basis. There are at least eight different sections of this stretch that have been substantially rebuilt in the last 10-15 years. In addition, we have repeatedly Tined this canal section with collected silt, such that very little of this section reflects its original character. Thus, unlike other sections of the canal, this particular section has Tess historic value and does not reflect its original construction. Instead, this is a section that has been constantly altered and worked on to try to address the thorny geology and other conditions that present ongoing maintenance challenges. This raises another concern, which is that over the years COID has repeatedly had to make emergency repairs to this section of canal. To the degree that historic nomination might preclude or impair our ability to make rapid emergency repairs (i.e., by adding large amounts of rip rap or backfill materials in the event of a collapse or breach), this could present a significant danger of harm to property or safety. 4. Conflict with Conservation In addition, we are implementing a system improvement plan to eventually pipe most of the Central Oregon Canal. This piping will allow COID to obtain substantial water conservation savings, allowing us to shore up flow in the Deschutes River, assist junior water rights holders, and meet the habitat demands of endangered and threatened species. SHPO seems to take a myopic view about historic nominations, without consideration of competing and important community values. The risk is that the historic nomination process will become a tool for obstruction of conservation, potentially tying up conservation projects in needless red tape. We are concerned that this particular nomination has very little to do with the historic value of this section of canal, and much more to do with the desire of a few property owners to preserve a water feature that they enjoy. As the County comments on this proposal, it should consider the larger context and the overall community benefit that comes from water conservation projects. While we do not have a present funding source to pipe the Ward to Goseny Roads section, COID does anticipate seeking such funding and, if successful, will look to pipe this section at some point in the future. We trust that the County recognizes COID's appreciation and commitment to historic preservation. In large and small ways, COID celebrates its history and role in the development of Central Oregon. As an example, as part of the demolition at the old Cline Falls hydro facility, we have preserved sections of the original structure and are designing a kiosk to tell the story of that noteworthy site. Our MPD and nominations of sections of the Central Oregon and Pilot Butte canals were meaningful efforts to celebrate and preserve important components of our history. At the same time, just as the telegraph eventually gave way to telephone lines and fiber optic cable, our community must recognize that open, unlined, leaky canals are not the most efficient or appropriate way to convey water across lava rock in a high desert. Oregon Kate Brown, Governor October 4, 2017 Hon. Tammy Baney Chair, Deschutes County Commission 1300 NW Wall Street Bend, OR 97703 Dear Commissioner Baney: Parks and Recreation Department State Historic P-rescrvatiOffice 725 Summer St NE Ste C Salem, OR 97301-.1266 Phone (50 3) 986-0690 fax (503) 986-0793 www.oregonheritage.org The State Advisory Committee on Historic Preservation (SACHP) will review the following property for nominations to the National Register of Historic Places at its next meeting in Salem, Oregon, on Friday, October 20, 2017: CENTRAL OREGON CANAL HISTORIC DISTRICT BEND vety., DESCHUTES COUNTY A private party is sponsoring the nomination of a segment of the Central Oregon Canal that occurs, in part, on your property. The canal segment nominated for listing includes only the elements of the Central Oregon Canal National Register nomination. The nominated area extends 50 feet in both directions from the centerline of the canal. A complete electronic copy of the nomination may be found online at httr://www.oreoon.gov/o rd/HCD/NATREG/docs/sachs docs/CentralOre_onCanalHD SACHP D.raft.pdf Under the rules governing the National Register nomination process, our office is required to notify the chief elected official of the jurisdiction within which the nominated property occurs no less than 60 days prior to the hearing of the SACHP at which the nomination will be heard by that body. Due to an error on our part, notification was sent to the Mayor of Bend, and not to you as the Chair of the Deschutes County Commission, an error we discovered this morning. As such, the Commission has two choices moving forward with regard to this nomination: 1. The Commission may choose to review and comment on the nomination as it otherwise would, waiving the Chair's 60 -day notification requirement; or 2. The Commission may choose to invoke its right, due to the administrative error on the part of our office, to cause the nomination to be removed from the SACHP's hearing agenda. Again, we apologize for our error. Please advise our office as soon as you have come to a decision on how you wish us to proceed. You are invited to attend the forthcoming meeting of the State Advisory Committee on Historic Preservation. The date and location of the meeting are given on the agenda enclosed. If questions concerning the National Register nomination process arise, please contact Jason Allen, Survey Program Coordinator, at (503) 986-0579. Sincerely, hristine Curran Deputy State Historic Preservation Officer Deschutes County Board of Commissioners 1300 NW WaII St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Work Session of October 4, 2017 DATE: September 19, 2017 FROM: Peter Gutowsky, Community Development, 541-385-1709 TITLE OF AGENDA ITEM: Thornburgh Resort / Remand Proceedings / Order RECOMMENDATION & ACTION REQUESTED: Staff respectfully requests the Board of County Commissioners issue Order 2017-036 to allow a Hearings Officer to receive additional testimony required to comply with a LUBA remand pertaining to Thornburgh Destination Resort and their Final Master Plan (FMP). Staff understands that the remand issue associated with Lower Whychus Creek is the last unresolved item pertaining to the FMP. ATTENDANCE: Peter Gutowsky, AICP, Planning Manager SUMMARY: Thornburgh Resort initiated a Land Use Board of Appeals (LUBA) remand. Co n liin llunity Deve epment Department Planning Di"Vision Bu:[rind, Safety Division Erit.ircmrnei1t,91 SOil$ DiVi$EUmm P,0.. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone: (541) 388-6575 Fax: (54 1) 305-1764 http://Www.deschutes.arg/cd Memorandum TO: Deschutes County Board of Commissioners FROM: Peter Gutowsky, AICP, Planning Manager DATE: September 19, 2017 SUBJECT: Thornburgh Resort / LUBA Remand / Remand Proceedings / Order 2017-036 I. REQUEST On September 18, 2017, Thornburgh Resort initiated a Land Use Board of Appeals (LUBA) remand (file no. 247-17-000761-A). Staff respectfully requests the Board of County Commissioners (Board) issue Order 2017-036 to allow a Hearings Officer to receive additional testimony required to comply with a LUBA remand pertaining to Thornburgh Destination Resort and their Final Master Plan (FMP). Staff understands that the remand issue associated with Lower Whychus Creek, discussed in detail below, is the last unresolved item pertaining to the FMP. Deschutes County Code (DCC) 22.34.040, Proceedings on Remand, grants the Board discretion on remand to: • Reopen the record in instances in which it deems to be appropriate; • Enable a remanded application for a land use permit to be modified to address issues involved in the remand to the extent that such modifications would not substantially alter the proposal and would not have a significantly greater impact on surrounding neighbors; and, • Allow parties to raise new, unresolved issues that relate to new evidence directed toward the issue on remand If additional testimony is required to comply with it.' 11. LUBA REMAND On December 2, 2015, a Hearings Officer denied approval of the Thornburgh Destination Resort FMP, concluding that there is insufficient evidence in the record to conclude that the 106 cubic feet per second (cfs) of added water to Whychus Creek offsets the .01dC temperature change associated with groundwater pumping and the possible impacts on refugia. The Board declined to exercise discretionary review and Thornburgh Resort appealed to LUBA. LUBA issued a 1 DCC 22.34.040. https://weblink.deschutes.org/public/0/doc/4133/Pagel.aspx Qua Ser°uu ces 1'crt remand on September 23, 2016 for a Hearings Officer's failure to consider relevant evidence in the Gould FMP record, misunderstanding the question to be resolved on remand, and refusing to consider new evidence. Specifically, • The Hearings Officer needs to consider any evidence from the Gould FMP record that is called to his attention if it is relevant to the Whychus Creek remand issue.2 • The Hearings Officer needs to consider new evidence to the extent it was relevant to his inquiry regarding Lower Whychus Creek on remand.3 • The Hearings Officer failed to resolve the inconsistent positions by opponents' expert Yinger and the applicant's expert TetraTech. The Hearings Officer must provide a better explanation for why he found Tetra Tech's testimony unpersuasive. TetraTech took the position that even though the mitigation water may be slightly warmer than the lost spring flow at Alder Springs, the mitigation water is still cool water and would reduce Yinger's projected thermal impacts. • The issue is limited to whether the increased water usage of the resort during the summer months will result in a violation of the no net loss/degradation standard in Lower Whychus Creek below Alder Springs, or be fully mitigated by the 106 acre-feet of additional in - stream flow. Cross -Petition On cross -petition for review before LUBA, Gould also asserted five cross -assignments of error and one single contingent cross -assignment of error. LUBA, and ultimately the Oregon Court of Appeals and Oregon Supreme Court rejected all of them. 1. Cross Assignment of Error — FMP Remand Proceedings should not have been initiated because the Conceptual Master Plan (CMP) approval has expired. Decision: All requirements of the Conceptual Master Plan (CMP) approval are now requirements of the county's FMP approval. The FMP approval has effectively incorporated and displaced the CMP approval. The error is denied. 2. Cross Assignment of Error — Petitioner DeLashmutt does not have standing to appeal to LUBA. Decision: DeLashmutt made the required personal appearance to have standing to appeal to LUBA. The error is denied. 2 LUBA No. 2015-017. Page 21, lines 3-5. The Gould FMP is shorthand for Gould v. Deschutes County, 59 Or LUBA 435 (2009), affd 233 Or App 623, 227 P3d 758 (2010). 3 Ibid. Page 26, line 15-18. "We conclude that the second hearings officer erred in concluding that LUBA's remand did not require that he consider new evidence to the extent it was relevant to his inquiry regarding Lower Whychus Creek on remand." -2- 3. Cross Assignment of Error — Thornburgh did not initiate the remand proceedings. Decision: DeLashmutt's request was sufficient to initiate the remand proceedings. The error is denied. 4. Cross Assignment of Error — Central Land and Cattle Company (CLCC) is not a property party to initiate or pursue the FMP remand. Decision: CLCC is entitled to pursue this matter on remand from LUBA as the successor in interest to the FMP applicant Thornburgh Resort. The error is denied. 5. Cross Assignment of Error — The Terrestrial Wildlife Management Plan and Off -Site Habitat Mitigation and Monitoring Plan lack necessary specificity. Decision: Findings supported by substantial evidence and the arguments advanced in the fifth cross -assignment of error provide no basis for remand. The error is denied. 6. Contingent Cross Assignment of Error — Changed Conditions Warrant Requiring a New Destination Resort. Decision: A change in ownership is not a change in the "approved plan." Gould identifies no changes in the "approved" plan. The error is denied. III. BACKGROUND Land History The Thornburgh Destination Resort has a long history. The conceptual master plan (CMP) application submitted by Thornburgh Resort Company, LLC (TRC) was denied by the Deschutes County Hearings Officer in a decision dated November 9, 2005 (CU -05-20). The Board initiated a review of the denial. That decision was also appealed by Nunzie Gould (hereafter Gould) and Steve Munson (Munson) to the Deschutes County Board of Commissioners (Board). (A-05-16). By a decision dated May 10, 2006, the Board approved the CMP. Gould and Munson appealed the Board's decision to the Land Use Board of Appeals ("LUBA"). (Nos. 2006-100 and 101). LUBA remanded the Board's decision on May 14, 2007. Gould v. Deschutes County, 54 Or LUBA 2005 (2007). Opponent and Munson appealed LUBA's decision to the Court of Appeals seeking a broader remand scope. (A135856). On November 7, 2007, the Court of Appeals reversed and remanded LUBA's decision. Gould v. Deschutes County, 216 Or App 150, 171 P3d 1017 (2007). The result of this decision was that the Board's decision in CU -05-20 approving the CMP was remanded to the county for further proceedings. On April 15, 2008 the Board issued its decision on remand again approving the CMP (Document No. 2008-151). Gould and Munson appealed the Board's decision to LUBA on May 6, 2008 (No. 2008-068). On September 11, 2008, LUBA affirmed the Board's decision. Gould v. Deschutes County, 57 Or LUBA 403 (2008). Opponent and Munson appealed LUBA's decision to the Court of Appeals (A140139). On April 22, 2009 the Court of Appeals affirmed LUBA's decision. Gould v. Deschutes County, 227 Or App 601, 206 P3d 1106 (2009). Gould and Munson appealed the Court of Appeals' decision to the Oregon Supreme Court (S057541). On October 9, 2009, the Supreme Court denied review. Gould v. Deschutes County, 347 Or 258, 218 P3d 540 (2009). On December 9, 2009 the Court of Appeals issued its appellate judgment. The result of these decisions was the CMP received final approval as of December 9, 2009. -3- Based on the Board's April 15, 2009 decision approving the CMP for the Thornburgh Destination Resort, TRC submitted an amended application for approval of the final master plan (FMP) on April 21, 2008 (M-07/MA-08-6). By a decision dated October 8, 2008, the Hearings Officer approved the FMP. Gould and Munson appealed to the Board, who declined to hear it. Gould and Munson then appealed that decision to LUBA (No. 2008-203). On September 9, 2009 LUBA remanded the County's decision for further proceedings. Gould v. Deschutes County, 59 Or LUBA 435 (2009). TRC appealed LUBA's decision to the Court of Appeals (A143430). On February 24, 2010 the Court of Appeals affirmed LUBA's decision. Gould v. Deschutes County, 233 Or App 623, 227 P3d 759 (2010). LUBA issued its notice of appellate judgment on August 17, 2010 remanding the County's decision. On August 15, 2011, the review on remand of the FMP was initiated by TRC. On November 1, 2011, Loyal Land Company sought a declaratory ruling that the April 15, 2008 CMP had been timely initiated. The hearings officer found the CMP was timely initiated. The Board declined to exercise discretionary review and the opponent appealed to LUBA. On appeal, LUBA remanded that decision (LUBA No 2012-042, January 8, 2013). LUBA's decision was affirmed by the Court of Appeals, without opinion. Gould v. Deschutes County, 256 Or App 520, 301 P3d 978 (2013). On remand, the hearings officer found the CMP was not timely initiated. TRC appealed the hearings officer's decision to the Board, which issued a declaratory ruling that the April 15, 2008 CMP decision was "initiated" before the two-year deadline for doing so expired. Gould appealed the decision to LUBA. On appeal, LUBA remanded the declaratory ruling of the Board that a CMP for destination had been "initiated" within the county code's time limitations. (LUBA No 2015-080, January 30, 2015). Gould appealed to the Court of Appeals, contending that LUBA erred by deferring to the county's implausible interpretation of a code provision that addressed whether a CMP had been "initiated." The Court reversed and remanded stating that the express language of the county code requires Defendant substantially exercise the permit conditions as a whole, and any failure to initiate development by fully complying with the conditions should not be the fault of the applicant, a determination of which must be based on more than just the complexity of the process. The Court also held that the County could not interpret the county code contrary to a prior LUBA order in this same litigation, as the lower tribunal was bound to follow the appellate court's ruling. (A158835). On September 25, 2015, Central Land and Cattle Company, LLC asked Deschutes County to conduct proceeding on remand of its approval of the Thornburgh Destination Resort Final Master Plan in application 247-15-000529-A; M-07-2; MA -08-6. The hearings officer denied approval of the Thornburgh Destination Resort Final Master Plan. The Board declined to exercise discretionary review and Central Land and Cattle Company, LLC appealed to LUBA. On appeal, LUBA remanded that decision (LUBA No 2015-107, September 23, 2016). It also determined that the FMP approval effectively incorporates and displaces the CMP approval. Gould appealed to the Court of Appeals. LUBA's decision was affirmed by the Court of Appeals, without opinion. Central Land and Cattle Company, LLC et al v. Deschutes County and Gould, 283 Or App 286, A163359, (2016). Gould appealed to the Oregon Supreme Court. The Court of Appeals decision was affirmed by the Oregon Supreme Court, without opinion (S064684, 2017). Attachment Order 2017-036 -4- LEGAL COUNSEL For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Allowing a Hearings Officer to Consider New Evidence Relevant to LUBA No. 2015-107 and File No. 247-17-000761-A ORDER NO. 2017-036 WHEREAS, the Land Use Board of Appeals ("LUBA") issued a final opinion and order, LUBA No. 2015-017, remanding Thornburgh Destination Resort ("Thornburgh") Final Master Plan ("FMP'); and WHEREAS, LUBA issued a remand for a Hearings Officer's failure to consider relevant evidence in the original FMP record, misunderstanding the question to be resolved on remand, and refusing to consider new evidence related to Lower Whychus Creek; and WHEREAS, Kameron DeLashmutt, the applicant, initiated the LUBA remand in File No. 247-17- 000761-A; and WHEREAS, Section 22.34.040(A) of the Deschutes County Code allows the Board of County Commissioners ("Board") discretion to reopen the record in instances in which it deems to be appropriate; and WHEREAS, LUBA has directed the County to answer the following question on remand: "[W]hether the increased water usage of Thornburgh Resort during the summer months will result in a violation of the no net loss/degradation standard in Lower Whychus Creek below Alder Springs, or be fully mitigated by the 106 - acre feet of additional in -stream flow." Central Land and Cattle Co. v. Deschutes County, Or LUBA (LUBA No. 2015-107, 9/23/2016) at lines 4-8, page 23 of LUBA's slip opinion. WHEREAS, the Board wishes to allow the parties to present new evidence related to question on remand set out above; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. The Board hereby reopens the record of the Thornburgh FMP application to allow parties to submit and its hearings officer to consider new evidence related to the issue whether the increased water usage of Thornburgh Resort during the summer months will result in a violation of the no net loss/degradation standard in Lower Whychus Creek below Alder Springs, or be fully mitigated by the 106 acre-feet of additional in -stream flow. Section 2. The hearings officer on remand shall not accept evidence on any other issues unless allowed by DCC 22.34.040(C). PAGE 1 OF 2 - ORDER NO. 2017- 036 Dated this of , 2017 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON ATTEST: TAMMY BANEY, Chair ANTHONY DEBONE, Vice Chair Recording Secretary PHILIP G. HENDERSON, Commissioner PAGE 2 OF 2 - ORDER No. 2017- 036 Community Development Department Planning Division Building Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 (541) 388-6575 Fax (541) 385-1764 http,//www.deschutes.org/cd FINDINGS AND DECISION FILE NUMBERS: 247 -17 -000172 -AD, -000173-SP, and -000180-AD APPLICANT: Evolution Concepts, LLC 915 SW Rimrock Way, Suite 201 Redmond, Oregon 97756 PROPERTY ATP, LLC OWNER: 21330 Young Avenue Bend, Oregon 97701 ENGINEER/ Tim Weishaupt, P.E. SURVEYOR: Sun Country Engineering & Surveying 920 SE Armour Road Bend, Oregon 97702 REQUEST: The applicant is requesting Administrative Determinations and Site Plan review to establish a marijuana production and processing facility on a 55.8 -acre parcel in the Exclusive Farm Use Zone — Tumalo/Redmond/Bend Subzone. STAFF CONTACT: Cynthia Smidt, Associate Planner I. APPLICABLE CRITERIA: Title 18, Deschutes County Zoning Ordinance Chapter 18.16. Exclusive Farm Use Zone Chapter 18.84. Landscape Management Combining Zone Chapter 18.124. Site Plan Review Chapter 18.116. Supplemental Provisions Title 22, Deschutes County Development Procedures Ordinance II. BASIC FINDINGS: A. LOCATION: The subject property has an assigned address of 4800 SW Highland Avenue (State Highway 126), Redmond and is identified on Deschutes County Assessor's Map No. 15-13-18, as Tax Lot 2400. Orality Services Perfot-,ned with Pride B. LOT OF RECORD: The subject property is recognized by Deschutes County as a legal lot of record based on file LM -05-168. This decision was not appealed. C. ZONING: The subject property is zoned Exclusive Farm Use Zone — Tumalo/Redmond/Bend Subzone (EFU-TRB). The property is also within the Landscape Management (LM) Combining Zone. D. SITE DESCRIPTION: The subject property is approximately 55.8 acres and irregular in shape. The site has varying terrain with native vegetation including juniper trees and groundcover (grasses and shrubs) and irrigated pasture. The subject property has 22.4 acres of water rights. Highland Avenue/Highway 1261 abuts the property along its northern boundary, which provides primary access to the site. The property is currently developed with a 1946 single-family dwelling and several accessory structures (e.g. barn, shed, and greenhouse).2 According to the Flood Insurance Rate Map for Deschutes County and the National Wetlands Inventory, respectively, the subject property is not located in the 100 -year flood plain and does not contain wetlands. E. SURROUNDING LAND USES: The area surrounding the subject property consists of mostly developed and vacant rural residential properties and farm -zoned parcels. Residentially zoned parcels are located to the east and northeast, across Highland Avenue. To the north, south, and west are farm -zoned parcels, either developed or vacant, and with some farm uses occurring. The urban growth boundary associated with the city of Redmond is located at the intersection of Highland Avenue/Hwy 126 and SW Helmholtz Way, which is approximately 1,000 feet to the east of the subject property. Zoning in the area is a mixture of Multiple Use Agricultural (MUA-10), and Exclusive Farm Use, and Urban Holding (UH -10). F. PROPOSAL: The applicant is requesting approval of an Administrative Determination to establish a marijuana production facility (grow) on the subject property. The applicant is also requesting an Administrative Determination and Site Plan review for marijuana processing facility. In particular, the applicant states the following regarding the proposed production and processing: This application requests approval for a site plan to develop multiple marijuana production facilities (greenhouses) and processing. The proposal is to convert the existing approximately 4200 square foot building into processing and office/storage space, and add (4) additional production buildings of approximately 5,208 square feet each, in phases, with 2,450 square feet of production area (canopy) each, for a total of just under 9,800 square feet of production area, and a total building area of 28,056 sf. The proposed production and processing site will be located in the northwestern region of the property. The applicant proposes to establish the four production greenhouses to the 1 The location of the subject property is approximately where the road name changes to/from Highland Avenue and Highway 126. 2 County Assessor's records show two dwellings on the property, including one established in 2006. County records do not show permits for the second dwelling. However, in 2006, through permits LM -05-168 and AG -05-114, an agricultural building was established on the property intended for "farm equipment storage," horse stalls, and hay storage. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 2 west of the existing agricultural building. The proposed parking area will be located between the production buildings and the processing building. As indicated by the applicant, each production building will be 5,208 square feet for a total of 20,832 square feet for all four buildings. The existing agricultural building is approximately 4,200 square feet. The total building area for all five buildings will be 25,082 square feet (staff believes the applicant miscalculated this total building area). G. LAND USE HISTORY: The subject property has had the following land use permit history: file LM -05-168, a site plan review for an agricultural building (barn). H. PUBLIC AGENCY COMMENTS: The Planning Division mailed notice to several agencies and received the following comments: 1. Central Electric Cooperative (CEC): The following comments were received on March 29, 2017. The proposed site is in an unallocated area as determined by the PUC and I believe is presently being served by Pacific Power. If the owner is interested in using Central Electric Cooperative for their power needs, the applicant will need to apply for a new electrical service by calling 541- 548-2144, provide electrical load and demand requirements for this activity. CEC will determine if capacity is available. 2. Central Oregon Irrigation District: Comments and a map were submitted by Dan Downing with the Central Oregon Irrigation District on April 4, 2017. The comments are below. COID FACILITIES: • COID has four separate canals that run through the subject's property o 8-7 has a ROW of 30' with an additional 20' ROW for a road. • Road ROW changes sides mid -way through property o 8-7-3 has a ROW of 20' o 8-7-3-0-1 has two canals, each has a 20' ROW • Do not build or encroach upon COID's ROW • If a crossing of COID's facility is needed, contact the District for a crossing permit. COID WATER RIGHTS: • Subject's property has 22.4 acres of COID water rights • Contact COID if greenhouse structures are to be placed outside of a mapped water right • Contact COID if non -greenhouse structures are to be placed on a mapped water right COID POLICY STATEMENTS • Read the following statement on marijuana grow operations COID response to Community Development Notice for Proposed Marijuana Production: Central Oregon Irrigation District (COID) serves this property with the above specified amount of irrigation water during the irrigation season of April 1 sr 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 3 through October 31St at a rate of up to 6 gallons per minute per acre. This water cannot be used for irrigation during the winter months. If the recreational marijuana production facility is a greenhouse proposed to be built on top of the COID water right, land -user must allow COID annual access to the structure to document beneficial use of the water right. Structures on a water right for any purpose other than greenhouse operations is not allowed. **Plot Plan is required to assist COID in determining if the proposed structure will be located on the water right or if a water transfer should be filed to get water to it. 3. Deschutes County Assessor: The following comments were submitted by Nora Wallace, Assessment Technician III, on March 28, 2017. This property is in farm deferral. 4. Deschutes County Building Safety Division: Randy Scheid, Building Safety Director, submitted the following comments on March 27, 2017. The Deschutes County Building Safety Division code required Access, Egress, Setbacks, Fire & Life Safety, Fire Fighting Water Supplies, etc. will be specifically addressed during the plan review process for any proposed structures and occupancies. All Building Code required items will be addressed, when a specific structure, occupancy, and type of construction is proposed and submitted for plan review. 5. Deschutes County Transportation Planner: Peter Russell, Senior Transportation Planner submitted the following comments on March 29, 2017. I have reviewed the transmittal materials for 247-17-000172-AD/173-SP/180- AD for a marijuana production (growing) and processing operation in the Exclusive Farm Use (EFU) and Landscape Management zones at 4800 SW Highland, aka 15-13-18, Tax Lot 2400. 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 applicant's site plan shows there will be 20,832 square feet of greenhouses for cannabis production and support. The resulting trip rate would be 81 daily trips (3.56 X 22.832). The applicant has proposed repurposing an existing 4,200 - square -foot building for marijuana processing. Deschutes County uses Manufacturing (Land Use 140) when assessing marijuana processing operations, which has a weekday trip rate of 3.82 trips per 1,000 square feet. The processing operation would thus generate 16 daily trips (3.82 X 4.2). The entire grow and processing operation would generate 97 daily trips (81 + 16). Deschutes County Code (DCC) at 18.116.310(C)(3)(b) states traffic analysis is required if the proposed use will generate between 50-200 new weekday trips. The proposed land use will meet that threshold and therefore a Traffic Site Report is required. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 4 On page 10 of the burden of proof the applicant indicates a preference for using Nursery, Wholesale (Land Use 818) from the ITE manual and to use number of employees as the trip generation variable, rather than square feet. Staff, in consultation with the Road Department, rejects this approach for the following reasons. First, the ITE's summary of the Warehouse category states "Warehouses are primarily devoted to the storage of materials, but they may also include office and maintenance areas." (Page 191, 9th edition). Under Deschutes County code all marijuana grow operations must occur indoors. The structures used in the grow operations include plants at various stages of development, in essence storing them. Due to the high monetary value of each plant, many operations are labor intensive in the caring, nurturing, growing, and harvesting operations. Thus, grow operations can have several employees. As with any land use category, trips to/from the site include employees, delivery vehicles, utility readers, parcel package services, etc. Second, the ITE summarizes Nursery Wholesale as "characterized by seasonal variations in trip characteristics." By contrast, marijuana grow operations occur indoors, often in climate -controlled settings, and thus can generate trips year-round unlike Wholesale Nursery. Second, the County uses square -footage of buildings when determining transportation effects, rather than employees. This is because the County has a review role in the regulation of types and size of land uses and building permits. The County does not review or regulate number of employees. An applicant could claim minimal traffic impacts based on a handful of employees, but then have staff several times larger with resulting traffic impacts. As staff relayed at the pre -application conference, the County has decided to use the Warehouse category for marijuana production and the Manufacturing category for marijuana processing. The application should be deemed incomplete until a Site Traffic Report is submitted to the County. Board Resolution 2013-020 sets a (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 would result in 7.3 p.m. peak hour trips (0.32 X 22.832). Thus the applicable SDC for the grow operation would be $27,349 (7.3 X $3, 852). The ITE indicates Manufacturing generates 0.73 trips per 1,000 square feet, which would result in 3.1 p.m. peak hour trips (0.73 X 4.2) Thus the applicable SDC for the processing operation would be $11,941 (3.1 X $3, 852). The total SDC for the marijuana grow and processing operation would be $39,290 ($27,349 + $11,941). 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. The applicant proposes to use Nursery (Wholesale) for the SDC calculation. For the same reasons stated above regarding traffic studies, the County bases its SDC on size of buildings when it comes to marijuana grow operations. Additionally, state law at ORS 223.301 does not allow the number of employees to be used when determining SDCs.... The applicant can choose to follow the County's SDC appeal process as described in Res. 2013-020, Section 12 as the SDC is not part of the land use approval. STAFF COMMENT: The applicant provided a Site Traffic Report performed by Joe Bessman of Transight Consulting, LLC and dated September 18, 2017. The report 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 5 provided five methods for determining the estimated trip generation for the proposed use. Peter Russell submitted the following comments on September 19, 2017 in response to the report. Since this application includes site plan review, the traffic requirements of DCC 18.116.310 apply whereas most marijuana production applications are reviewed under DCC 18.116.330(8)(8) which only requires proof of legal access for production sites where the mature canopy will exceed 5,000 square feet. Regarding the ITE category to use for trip generation rates, the Planning and Road Department have selected Warehouse. The Board affirmed that decision in an April work session. The applicant has provided four different methodologies for trip generation. Staff accepts methodology#3, which uses the County's method of square footage of devoted to production and processing. In turn production is analyzed using the Warehouse category and processing is analyzed using the Manufacturing category. This results in 100 daily trips and 9 p.m. peak hour trips. Staff does have one question in that the TIA references 2,450 square feet for unenclosed outdoor production. Staff was under the impression all marijuana production had to be enclosed by either greenhouses or other structures as DCC 18.116.330(B)(2)(c) prohibits in all zones any outdoor production or processing. Staff uses the same trip generation categories for traffic analysis and transportation system development charges (SDCs). BOCC Resolution 2013- 020 establishes an SDC rate of $3, 937 per p.m. peak hour trip. The applicable SDC based on the traffic analysis above is $35,433 (9 X $3,937). If the applicant wishes to appeal the SDC, that is done through a Road Department process as outlined in Board Resolution 2013-020, Section 12. The SDC is due prior to issuance of a certificate of occupancy. If a certificate of occupancy is not required, then the SDC is due within 60 days of the land use decision becoming final. 6. Deschutes County Road Department: In response to the above noted Site Traffic Report submitted by the applicant, Chris Doty, Director, provided the following comments on September 19, 2017. To the extent that Mr. Bessman has submitted an analysis that takes issue with the County's trip generation policy regarding the trip generation of MJ related facilities, I do feel compelled to respond regarding that particular element of the study. As have others, Mr. Bessman points to the Nursery (Wholesale) land use category in the ITE manual as a more analogous land use for an MJ grow facility versus the County's preferred use of the Warehouse category. While it may sound like a better fit, there are reasons why I rejected the Nursery land use in crafting the County's trip generation assumptions for MJ grow operations. 1. Use of the Nursery land use requires use of the number of employees as the trip generation variable. This requires significant speculation and cannot be verified or permitted. Use of the number of employees would not produce a consistent rate that could be fairly and consistently 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 6 applied to different applications. For example, the last MJ grow application which proposed use of the Nursery land use category suggested that only 5 (max) employees would be required for 20,000 SF of grow space (Synergy Concepts, 7171 SW Quarry Avenue). This application states that 15 (max) employees would be required for less than 30,000 SF of indoor grow space. That is a 100% difference (on an employee per square foot basis) between two MJ grow operations. 2. Use of acreage as the variable is also highly speculative as most MJ grow operations do not use but a fraction of their site for active use. In his report, Mr. Bessman assumes a highly speculative and very generous 6.7 acres of actively used space to back into a calculation of 4 peak hour trips. At 30,000 SF of total grow space and 6.7 acres of site, this is not remotely close to analogous to the Wholesale Nursery land use as that would mean the California nurseries noted in the report only grow nursery stock on 10% of the land. Acreage is not a reasonable land use variable by which to calculate trip generation for MJ use. 3. The third variable provided in which to calculate trip via the Nursery use is gross floor area. Mr. Bessman adequately notes that this is not an appropriate variable. Use of this variable would produce a calculation of 270 peak hour trips for this site — which is clearly unreasonable. As stated in the within the attached January 23, 2017 MJ technical memo (policy), the Warehouse use is not a perfectly analogous land use for an MJ grow, but I believe it to be a reasonable placeholder until such time that an ITE or local trip generation rate can be developed and approved. 7. Pacific Power: The following comments were submitted by the applicant on June 12, 2017. This is to advise you that Pacific Power has electrical distribution facilities near Tax Lot 2400 in SEC. 18, T. 15S. R.13E., W. M. in Deschutes, Oregon; and Pacific Power has certified rights to provide electrical energy in this area. For a Cannabis Grow operation, with an estimated load provided by the customer of 3000 amps 277/480 v. three phase, approx. load of 2 Megawatts. Pacific Power will provide electric service to this project within a reasonable time after service is applied for. These extensions are provided under our Rules and Regulations as filed with the Oregon State Public Utilities Commissioners. These Rules and Regulations require that under some situations, the developer or customer will be required to participate in the line extension costs. Please be aware that single customers of 1 Megawatt or larger will require the completion of an engineering study to determine impacts on the electric system and any construction necessary to serve the load. Electric service to this project is in accordance with the Rates, Rules and Regulations of Pacific Power's files Electric Tariff. 8. Redmond Fire and Rescue: Comments were submitted by Clara Butler, Deputy Fire Marshal, on March 30, 2017. Ms. Butler's comments are below. The following fire code requirements will apply to the processing facility. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 7 WATER: Area without Fire Hydrants: • NFPA 1142 Requirements o If the structure is being built in an area without a public water supply system, then the water flow requirements will come from NFPA 1142. o Note: The following information will need to be provided in order to determine accurate water flow requirements. ■ Building height, length and width ■ Use of the building ■ Type of construction ■ Whether the structure 100 sq ft or larger and within 50 feet of any other structures • Structures with Automatic Sprinkler systems — 2012 NFPA 1142 Chapter 7 o The authority having jurisdiction shall be permitted to waive the water supply required by this standard when a structure is protected by an automatic sprinkler system that fully meets the requirements of NFPA 13 or NFPA 13D o Note: Contact Deschutes County Building plans review staff for other options. ACCESS: • Premises Identification — 2014 OFC 505.1 o Approved numbers or addresses shall be placed on all new and existing buildings in such a position as to be plainly visible and legible from the street or road fronting the property. Said numbers shall contrast with their background and visible at night. Number/letter shall be a minimum of 4" high and a 0.5" stroke width. • Fire Apparatus Access Roads — 2014 OFC Section 503 & Appendix D o Fire apparatus access roads shall extend to within 150 ft of all portions of the building as measured by an approved route around the exterior of the building. o Fire apparatus access roads shall have an unobstructed width of not less than 20 feet and an unobstructed vertical clearance of not less than 13 feet 6 inches. o Fire apparatus roads shall be designed and maintained to support the imposed loads of 70,000 lbs and shall be surfaced so as to provide all- weather driving capabilities. o The required turning radius of a fire apparatus access road shall be 30 feet inside and 50 feet outside. o The grade of the fire apparatus access roads shall be within the limits established by the fire code official (10%). • Fire Lanes — 2014 OFC 503.3 & Appendix D o Approved signs or other approved notices shall be provided for fire apparatus access roads to identify such roads or prohibit the obstruction thereof. Such signs or notices shall be kept in legible conditions at all times. The stroke shall be 1 inch with letters 6 inches high and read "No Parking Fire Lane". Spacing for signage shall be every 50 feet. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 8 • Recommended to also (in addition to Fire lane signs) paint fire lane curbs in bright red paint with white letters. o Appendix D Section 103.6.1 Roads 20-26 Ft. Wide: Shall have Fire Lane signs posted on both sides of a fire lane. o Appendix D Section 103.6.2 Roads more than 26 Ft. Wide: Roads 26-32 ft wide shall have a Fire Lane signs posted on one side of the road as a fire lane. • Aerial Access Roads — 2014 OFC Appendix D, Section 105 o Buildings or portions of buildings or facilities exceeding 30 feet in height above the lowest level of fire department vehicle access shall be provided with approved fire apparatus access roads and capable of accommodating fire department aerial apparatus. Overhead utility and power lines shall not be located within the aerial fire apparatus access roadways. At least one of the required access routes meeting this condition shall be located within a minimum of 15 feet and a maximum of 30 feet from the building, all access roads shall have an unobstructed width of not less than 26 feet and shall be positioned parallel to one entire side of the building. • Dead -Ends — 2014 OFC Section 503.2.5 o Dead-end fire apparatus access roads in excess of 150 feet in length shall be provided with an approved area for turning around fire apparatus. Contact Redmond Fire & Rescue for requirements. o OFC Table D103.4 Dead Ends over 750 Feet- Require special approval. If approved, there shall be a turn -around no more than every 1000 feet with a bulb of 60 feet across and the width of the road shall be a minimum of 26 ft clear for fire apparatus. • Additional Access — 2014 OFC Section 503.1.2 o The fire code official is authorized to require more than one fire apparatus access road based on the potential for impairment of a single road by vehicle congestion, conditions or terrain, climatic conditions or other factors that could limit access. • Emergency Access Road Gates — 2014 OFC Appendix D 103.5 o Minimum 20 feet wide. o Gates shall be swinging or sliding type. o Shall be able to be manually operated by one person. o Electric gates shall be equipped with a means of opening by emergency personnel & approved by fire official. o Locking devices shall be fire department Knox Key Switch purchased from A-1 Lock, Safe Co., Curtis Safe & Lock, on line at www. knoxbox. com, or contact Redmond Fire & Rescue for an order form. o Section 503.3: Install a sign on the gate "No Parking -Fire Lane" • Key Boxes — 2014 OFC Section 506.1 o An approved key box shall be installed on all structures equipped with a fire alarm system and /or sprinkler system. Approved key boxes can only be purchased at A-1 Lock Safe Co., Curtis Safe and Lock, on line at www. knoxbox. com, or contact Redmond Fire & Rescue for an order form. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 9 • Commercial & Industrial Development — 2014 OFC Appendix D 104 o Buildings exceeding three stories or 30 feet in height shall have at least 2 means of fire apparatus access for each structure. o Where 2 access roads are required, they shall be placed not less than Y2 the length of the overall diagonal dimension of the property or area to be served, measured in a straight line between accesses. 9. The following agencies did not respond or had no comments: CenturyLlnk, Deschutes County Environmental Soils Division, Deschutes County Property Address Coordinator, Deschutes County Sheriff, Oregon Department of Agriculture, Oregon Department of Environmental Quality, Oregon Department of Transportation, Oregon Liquor Control Commission, and Watermaster — District 11. I. PUBLIC COMMENTS: The Planning Division sent notice of this proposal to all property owners within 750 feet of the subject property. Seven comments were submitted in opposition of the proposal that included the following concerns: • Overall neighborhood livability • Environmental impacts (e.g. water and electricity usage) • Property values • Odor, noise, and lighting • Safety • Traffic impacts J. NOTICE REQUIREMENT: The applicant complied with the posted notice requirements of Section 22.24.030(B) of Deschutes County Code (DCC) Title 22. The applicant submitted a Land Use Action Sign Affidavit, dated May 2, 2017, indicating the applicant posted notice of the land use action on May 2, 2017. K. REVIEW PERIOD: The application was submitted to the Planning Division on March 16, 2017. An incomplete application letter was sent on April 14, 2017. The applicant responded with additional information by June 12, 2017. The Planning Division deemed this application complete and accepted it for review on June 12, 2017. The 150th day on which the County must take final action on this application is November 9, 2017. III. FINDINGS AND CONCLUSIONS: Title 18, Deschutes County Zoning Ordinance. A. CHAPTER 18.16. EXCLUSIVE FARM USE ZONE 1. Section 18.16.020. Uses 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 applicant is proposing marijuana production on the subject property, a use permitted outright subject to compliance with the applicable provisions of DCC 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 10 18.116.330. Compliance with the provisions of DCC 18.116.330 is addressed later in the decision. 2. Section 18.16.025. Uses Permitted Subject to the Special Provisions Under DCC Section 18.16.038 or DCC Section 18.16.042 and a Review Under DCC Chapter 18.124 where applicable. 1. A facility for the processing of farm crops, or for the production of biofuel as defined in ORS 315.141, if the facility is located on a farm operation that provides at least one-quarter of the farm crops processed at the facility, or an establishment for the slaughter, processing or selling of poultry or poultry products pursuant to ORS 603.038. FINDING: The applicant proposes to use an existing agricultural building for marijuana processing of marijuana produced on-site. At least one-quarter of the marijuana produced on-site as measured by weight is to be processed at the facility in any calendar year. The proposed processing facility is to be located in an existing agricultural building and siting standards are compliant with this use. As a condition of approval, the applicant shall assure that at least one-quarter of the farm crops processed at the facility in any calendar year, measured by weight, are produced at the farm operation on the subject property. In addition, the applicant shall provide to the Planning Division written documentation of compliance with the requirement in paragraph DCC 18.16.025(1) by submitting processed crop summaries to the Planning Division on request, and no less frequently than on an annual basis by January 31 of each year. 1. If a building is established or used for the processing facility or establishment, the farm operator may not devote more than 10,000 square feet of floor area to the processing facility or establishment, exclusive of the floor area designated for preparation, storage or other farm use. FINDING: According to the applicant, the existing 4,200 square foot agricultural building will be used for processing and total floor area devoted to processing will not exceed more than 10,000 square feet. This standard is met. 2. A processing facility or establishment must comply with all applicable siting standards but the standards shall not be applied in a manner that prohibits the siting of the processing facility. FINDING: Staff finds that the processing facility, as proposed and conditioned, can comply with all applicable siting standards identified in this decision and that these applicable standards have not been be applied in a manner that prohibits the siting of the processing facility. 3. The County shall not approve any division of a lot or parcel that separates a processing facility or establishment from the farm operation on which it is located. FINDING: No division of a lot or parcel is proposed. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 11 L. Marijuana processing, subject to the applicable provisions of DCC 18.16.025(1) and 18.116.330. FINDING: The applicant is proposing marijuana processing on the subject property, which is a use permitted subject to compliance with the applicable provisions of DCC 18.16.025(1), 18.116.330, and additional sections of 18.16 identified below. In addition, the proposal is subject to compliance with relevant sections DCC 18.124. Compliance with these provisions is addressed in this decision. 2. Section 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 marijuana production facility will be established in four greenhouses and processing facility will be established in an existing agricultural building. The greenhouses will be approximately 16 feet in height. For reference, the existing agricultural building is approximately 28 feet based on County records. 3. Section 18.16.070. Yards. A. The front yard shall be a minimum of:• 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector street, and 100 feet from a property line fronting on an arterial street. B. Each side yard shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with side yards adjacent to property currently employed in farm use, and receiving special assessment for farm use, the side yard shall be a minimum of 100 feet. C. Rear yards shall be a minimum of 25 feet, except that for a nonfarm dwelling proposed on property with a rear yard adjacent to property currently employed in farm use, and receiving special assessment for farm use, the rear yard shall be a minimum of 100 feet. D. In addition to the setbacks set forth herein, any greater setbacks required by applicable building or structural codes adopted by the State of Oregon and/or the County under DCC 15.04 shall be met. FINDING: The applicant is proposing four new production buildings (greenhouses). In addition, the applicant is proposing to use an existing agricultural building for marijuana processing. All structures are or will be located in the northwestern region of the property. Highland Avenue is classified as an arterial street. Based on the revised site plan submitted on June 12, 2017, the proposed production related buildings will have at least 500 feet for the front (north) yard setback. The production buildings will have side yard setbacks from the east and west property boundaries of at least 1,100 feet and approximately 100 feet, respectively. The rear (south) yard setback will be at least 1,300 feet. For reference, the existing agricultural building was established in 2006 according to County records (see permits LM -05-168 and AG -05-114). According to the submitted application materials, the existing building has an approximate 450 foot front (north) yard setback from Highland Avenue; side yard setbacks from the east and west property boundaries are approximately 970 feet and 300 feet, respectively; and the rear (south) 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 12 yard setback is approximately 1,300 feet. No exterior alterations to the agricultural building are proposed. These criteria are satisfied. B. CHAPTER 18.84. LANDSCAPE MANAGEMENT COMBINING ZONE 1. Section 18.84.020. Application of Provisions. The provisions of this chapter shall apply to all areas within one-fourth mile of roads identified as landscape management corridors in the Comprehensive Plan and the County Zoning Map. The provisions of this chapter shall also apply to all areas within the boundaries of a State scenic waterway or Federal wild and scenic river corridor and all areas within 660 feet of rivers and streams otherwise identified a landscape management corridors in the comprehensive plan and the County Zoning Map. The distance specified above shall be measured horizontally from the centerline of designated landscape management roadways or from the nearest ordinary high water mark of a designated landscape management river or stream. The limitation in this section shall not unduly restrict accepted agricultural practices. FINDING: Highland Avenue/Highway 126 located north of the subject property, is identified on the County Zoning Map as the landscape management feature in the area. The marijuana production and processing facility is proposed within four new greenhouses and one existing agricultural building. The agricultural building was established in 2006, which included LM Zone review through file LM -05-168. The applicant does not propose an addition to this structure. The design and construction of the greenhouses does not require a building permit. According to DCC 18.84.050, the LM Zone is not applicable for structures not requiring a building permit. C. CHAPTER 18.124. SITE PLAN REVIEW 1. Section 18.124.030. Approval Required. A. No building, grading, parking, land use, sign or other required permit shall be issued for a use subject to DCC 18.124.030, nor shall such a use be commenced, enlarged, altered or changed until a final site plan is approved according to DCC Title 22, the Uniform Development Procedures Ordinance. B. The provisions of DCC 18.124.030 shall apply to the following: 1. All conditional use permits where a site plan is a condition of approval; 2. Multiple family dwellings with more than three units; 3. All commercial uses that require parking facilities; 4. All industrial uses; 5. All other uses that serve the general public or that otherwise require parking facilities, including, but not limited to, landfills, schools, utility facilities, churches, community buildings, cemeteries, mausoleums, crematories, airports, parks and recreation facilities and livestock sales yards; and 6. As specified for Flood Plain Zones (FP) and Surface Mining Impact Area Combining Zones (SMIA). 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 13 FINDING: The marijuana processing is considered an industrial use.3 However, the proposed processing represents a small fraction of the total use at the site while the proposed marijuana production is considered the dominate use on the property. Therefore, staff finds that the use of the land is not primarily for the manufacture, processing, storage or wholesale distribution of products, goods or materials, which would make it a commercial use4. Nevertheless, since the proposed use is a use that requires parking facilities, the provisions of this chapter are applicable. 2. Section 18.124.060. Approval Criteria. Approval of a site plan shall be based on the following criteria: A. The proposed development shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. FINDING: The subject property is approximately 55.8 acres, irregular in shape, and has varying topography. Throughout the property, the vegetation includes juniper woodlands with native groundcover and irrigated pasture, which includes 22.4 acres of water. The site is developed with a single-family dwelling and several accessory structures in the northern region of the property. At least two irrigation canals run through the property. Highland Avenue abuts the property to the north. Access to the property is taken from an existing access point along Highland Avenue. The subject property is surrounded by farm and residential properties. Rural developed residential lots are located to the east and northeast, across Highland Avenue. Farm -zoned parcels, developed or vacant, are located to the north, south, and west. Farm -zoned properties are in either nonfarm use or farm use, which may include irrigated pasture and livestock grazing. The City of Redmond is located to the east of the property including its associated urban growth boundary (UGB). The Redmond UGB is approximately 1,000 feet east of the property boundary, at the intersection of Highland Avenue/Hwy 126 and SW Helmholtz Way. The applicant is proposing a marijuana production and processing facility on the property. The processing facility, which is subject to site plan review, will be located in the northwestern region of the property in an existing 4,200 square foot agricultural building. The existing agricultural building is over 450 feet south of Highland Avenue and over 600 feet from the closest residential use, which is just beyond Highland Avenue to the north. The applicant plans to remodel the existing agricultural building for marijuana processing. To the west of the agricultural building will be four greenhouses for marijuana production and a parking area. The project will include establishing a parking and maneuvering area adjacent to the production and processing buildings. Removal of vegetation will only occur within the building area 3 DCC 18.04.030 - "Industrial use" means the use of land primarily for the manufacture, processing, storage or wholesale distribution of products, goods or materials. It does not include commercial uses. 4 DCC 18.04.030 - "Commercial use" means the use of land primarily for the retail sale of products or services, including offices. It does not include factories, warehouses, freight terminals or wholesale distribution centers. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 14 for the parking lot5. Mature juniper trees and other vegetation and existing topography throughout the property will be retained. Based on this information, staff believes the proposed marijuana processing within the existing building and marijuana production as proposed will relate harmoniously to the existing development, minimizing visual impacts and preserving natural features including views and topographical features. B. The landscape and existing topography shall be preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected. FINDING: The applicant is proposing a marijuana processing on the property, including associated parking and maneuvering areas. The proposed improvements will be sited in areas previously cleared of vegetation and adjacent to the existing accessory structure. The proposal will require removal of vegetation only within the building area for the parking lot. Mature juniper trees and other vegetation and existing topography throughout the northwestern region of the property will be retained. No other impacts to landscape and existing topography are proposed. This criterion is met. C. The site plan shall be designed to provide a safe environment, while offering appropriate opportunities for privacy and transition from public to private spaces. FINDING: The applicant is proposing a marijuana processing facility, which includes clustering existing and proposed greenhouses together in the northwestern region of the property. Access to the site is taken from Highland Avenue approximately 450 feet to the north. Parking and maneuvering areas will be located between the existing agricultural building and four proposed greenhouses. The layout of the existing driveway together with the proposed parking areas, loading area, and structures provides appropriate opportunities for privacy and transition from public to private spaces. Marijuana processing of extracts can include unusual levels of fire safety hazard but the subject property is located in the Redmond Fire and Rescue District, who commented on this application. As a condition of approval, the use shall comply with the applicable building, fire, and OLCC safety standards. This standard is met. D. When appropriate, the site plan shall provide for the special needs of disabled persons, such as ramps for wheelchairs and Braille signs. FINDING: The County Building Safety Division will review specific ADA requirements during building permit review. E. The location and number of points of access to the site, interior circulation patterns, separations between pedestrians and moving and parked vehicles, and the arrangement of parking areas in relation to buildings and structures shall be harmonious with proposed and neighboring buildings and structures. 5 This does not include any clearing for the marijuana production facility because this aspect of the proposal is not being reviewed under DCC 18.124). 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 15 FINDING: The applicant proposes to continue to use the existing access from Highland Avenue/Hwy 126 to reach the proposed facility and parking area, with pedestrian access to the marijuana processing facility in the existing building. Based on the site plan submitted by the applicant, staff finds that the circulation pattern and arrangement of parking areas shall be harmonious with proposed and neighboring buildings and structures. F. Surface drainage systems shall be designed to prevent adverse impacts on neighboring properties, streets or surface and subsurface water quality. FINDING: The proposed processing facility will not significantly increase impervious surface area on the subject property. Furthermore, there is no evidence in the record that the site has a history of adversely impacting the surface water drainage pattern in the area. The submitted site plan shows the subject property will be designed, graded, and improved to direct the flow of stormwater to areas located on the property. Staff finds the proposed design prevents adverse impacts on the neighboring properties, streets, and surface and subsurface water quality. G. Areas, structures and facilities for storage, machinery and equipment, services (mail, refuse, utility wires, and the like), loading and parking and similar accessory areas and structures shall be designed, located and buffered or screened to minimize adverse impacts on the site and neighboring properties. FINDING: Based on the size of the property, consolidated building footprint, existing vegetation, topography, and development on the property, the applicant indicates the proposed development will be adequately buffered and screened. The parking area will be located between the existing agricultural building and the proposed greenhouses, and thus the structures provide a buffer from the neighboring property to the east and west. Natural vegetation, topography, and existing development provide screening between the facility and all surrounding residences and neighboring properties. Staff finds that the site layout, as conditioned, will be designed, located, buffered or screened to minimize adverse impacts on the site and neighboring properties. H. All above -ground utility installations shall be located to minimize adverse visual impacts on the site and neighboring properties. FINDING: Utilities necessary for this project, including sewer, water and electricity will be located underground or otherwise screened to minimize adverse visual impacts. 1. Specific criteria are outlined for each zone and shall be a required part of the site plan (e.g. lot setbacks, etc.) FINDING: Each zone affecting the subject property is identified in this decision. The applicable criteria for each zone are addressed in the findings above. J. All exterior lighting shall be shielded so that direct light does not project off-site. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 16 FINDING: As a condition of approval, all exterior lighting shall be shielded so that direct light does not project off-site. K. Transportation access to the site shall be adequate for the use. 1. Where applicable, issues including, but not limited to, sight distance, turn and acceleration/deceleration lanes, right-of-way, roadway surfacing and widening, and bicycle and pedestrian connections, shall be identified. 2. Mitigation for transportation -related impacts shall be required. 3. Mitigation shall meet applicable County standards in DCC 17.16 and DCC 17.48, applicable Oregon Department of Transportation (ODOT) mobility and access standards, and applicable American Association of State Highway and Transportation Officials (AASHTO) standards. FINDING: The Deschutes County Road Department, Deschutes County Transportation Planner, or Oregon Department of Transportation identified no transportation infrastructure deficiencies or requirements. 3. Section 18.124.070. Required Minimum Standards. A. Private or shared outdoor recreation areas in residential developments. FINDING: The proposal does not involve residential development. Staff finds this criterion does not apply. B. Required Landscaped Areas. 1. The following landscape requirements are established for multi -family, commercial and industrial developments, subject to site plan approval: a. A minimum of 15 percent of the lot area shall be landscaped. b. All areas subject to the final site plan and not otherwise improved shall be landscaped. FINDING: The applicant is proposing a marijuana processing facility, which is an industrial use. However, staff finds that the siting of this use in a 4,200 square foot structure is part of a marijuana related operation that includes over 20,000 square feet dedicated to the marijuana production farm use does not make the primary use of the 55.8 -acre property "industrial development". Moreover, the primary use of the property will continue to be marijuana production, which is not an industrial use and is not subject to site plan review. Staff finds that these criteria do not apply to this proposal. 2. In addition to the requirement of DCC 18.124.070(B)(1)(a), the following landscape requirements shall apply to parking and loading areas: a. A parking or loading area shall be required to be improved with defined landscaped areas totaling no less than 25 square feet per parking space. b. In addition to the landscaping required by DCC 18.124.070(B)(2)(a), a parking or loading area shall be separated from any lot line adjacent to a roadway by a landscaped strip at least 10 feet in width, and from any other lot line by a landscaped strip at least five feet in width. c. A landscaped strip separating a parking or loading area from a street shall contain: 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 17 1) Trees spaced as appropriate to the species, not to exceed 35 feet apart on the average. 2) Low shrubs not to reach a height greater than three feet zero inches, spaced no more than eight feet apart on the average. 3) Vegetative ground cover. d. Landscaping in a parking or loading area shall be located in defined landscaped areas which are uniformly distributed throughout the parking or loading area. e. The landscaping in a parking area shall have a width of not less than five feet. f. Provision shall be made for watering planting areas where such care is required. g. Required landscaping shall be continuously maintained and kept alive and attractive. h. Maximum height of tree species shall be considered when planting under overhead utility lines. FINDING: The parking area is not adjacent to a property line or roadway, as it is located over 100 feet from any such boundary and surrounded by native landscaping and irrigated pasture in excess of the required landscaping above. As a condition of approval, the landscaping in the vicinity of the parking adjacent to the buildings used for marijuana processing shall be continuously maintained and kept alive and attractive. C. Nonmotorized Access. 1. Bicycle Parking. The development shall provide the number and type of bicycle parking facilities as required in DCC 18.116.031 and 18.116.035. The location and design of bicycle parking facilities shall be indicated on the site plan. FINDING: Compliance with DCC 18.116.031 and 18.116.035 is discussed in findings for those sections, below. 2. Pedestrian Access and Circulation: a. Internal pedestrian circulation shall be provided in new commercial, office and multi -family residential developments through the clustering of buildings, construction of hard surfaced walkways and similar techniques. FINDING: This criterion does not apply, as the facility is not a commercial, office, or multi -family residential development. b. Pedestrian walkways shall connect building entrances to one another and from building entrances to public streets and existing or planned transit facilities. Onsite walkways shall connect with walkways, sidewalks, bikeways, and other pedestrian or bicycle connections on adjacent properties planned or used for commercial, multi -family, public or park use. c. Walkways shall be at least five feet in paved unobstructed width. Walkways which border parking spaces shall be at least seven feet wide unless concrete bumpers or curbing and landscaping or other 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 18 similar improvements are provided which prevent parked vehicles from obstructing the walkway. Walkways shall be as direct as possible. d. Driveway crossings by walkways shall be minimized. Where the walkway system crosses driveways, parking areas and loading areas, the walkways must be clearly identifiable through the use of elevation changes, speed bumps, a different paving material or other similar method. e. To comply with the Americans with Disabilities Act, the primary building entrance and any walkway that connects a transit stop to building entrances shall have a maximum slope of five percent. Walkways up to eight percent slope are permitted, but are treated as ramps with special standards for railings and landings. FINDING: The applicant is proposing a marijuana processing facility in conjunction with the marijuana production on the subject property. The proposed facility includes the clustering of existing and proposed greenhouses in the northwestern region of the property. There are no designated pedestrian walkways along the roadway, adjacent to the site, or on the site itself. The submitted application materials does not illustrate pedestrian walkways for the proposed facility. Based on the decision of file CU -14-7, the Hearings Officer makes the following finding: ...these criteria have limited application to the applicants' proposal inasmuch as there is only one commercial use proposed for the subject property, and there will be a single building for that use. Therefore, I find there is no need to apply these criteria to require particular pedestrian circulation or walkways on the property. Staff finds that the present application is similar in regards that there is a single building proposed for the marijuana processing facility and thus no pedestrian walkways under these criteria are required. D. Commercial Development Standards... FINDING: The proposed facility is not a commercial development. These criteria do not apply. 4. Section 18.124.090. Riqht of Way Improvement Standards. Any dedications or improvements to the road right of way required under DCC 18.124 shall meet the standards for road right of way improvements set forth in DCC Title 17 and any standards for right-of-way improvements set forth in DCC Title 18 for the particular zone in question. FINDING: The Deschutes County Road Department, Deschutes County Transportation Planner, nor Oregon Department of Transportation identified transportation infrastructure deficiencies or requirements. D. CHAPTER 18.116, SUPPLEMENTARY PROVISIONS 1. Section 18.116.020. Clear vision areas. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 19 A. In all zones, a clear vision area shall be maintained on the corners of all property at the intersection of two streets or a street and a railroad. A clear vision area shall contain no planting, fence, wall, structure or temporary or permanent obstruction exceeding three and one-half feet in height, measured from the top of the curb, or, where no curb exists, from the established street centerline grade, except that trees exceeding this height may be located in this area provided all branches and foliage are removed to a height of eight feet above the grade. B. A clear vision area shall consist of a triangular area on the corner of a lot at the intersection of two streets or a street and a railroad. Two sides of the triangle are sections of the lot lines adjoining the street or railroad measured from the corner to a distance specified in DCC 18.116.020(B)(1) and (2). Where lot lines have rounded corners, the specified distance is measured from a point determined by the extension of the lot lines to a point of intersection. The third side of the triangle is the line connecting the ends of the measured sections of the street lot lines. The following measurements shall establish clear vision areas within the County: 1. In an agricultural, forestry or industrial zone, the minimum distance shall be 30 feet or at intersections including an alley, 10 feet. 2. In all other zones, the minimum distance shall be in relationship to street and road right-of-way widths as follows: Right -of -Way Width Clear Vision 80 feet or more 20 feet 60 feet 30 feet 50 feet and less 40 feet FINDING: Based on the submitted site plan, no clear vision area will be obstructed with this proposal. Staff believes this criterion is met. 2. Section 18.116.030. Off Street Parking and Loading. A. Compliance. No building or other permit shall be issued until plans and evidence are presented to show how the off-street parking and loading requirements are to be met and that property is and will be available for exclusive use as off-street parking and loading. The subsequent use of the property for which the permit is issued shall be conditional upon the unqualified continuance and availability of the amount of parking and loading space required by DCC Title 18 FINDING: The off-street parking requirements for the proposed processing facility are addressed below. B. Off -Street Loading. Every use for which a building is erected or structurally altered to the extent of increasing the floor area to equal a minimum floor area required to provide loading space and which will require the receipt or distribution of materials or merchandise by truck or similar vehicle, shall 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 20 provide off-street loading space on the basis of minimum requirements as follows: 1. Commercial, industrial and public utility uses which have a gross floor area of 5,000 square feet or more shall provide truck loading or unloading berths subject to the following table: Sq. Ft. of Floor Area No. of Berths Required Less than 5,000 0 5,000-30,000 1 30,000-100,000 2 100,000 and over 3 3. A loading berth shall contain space 10 feet wide, 35 feet long and have a height clearance of 14 feet. Where the vehicles generally used for loading exceed these dimensions, the required length of these berths shall be increased. FINDING: The proposed primary marijuana production use is a farm use and does not require a loading berth. The proposed marijuana processing use is most similar to an industrial use in nature and requires compliance with this standard. The proposed marijuana processing will occupy 4,200 square feet in area falling below the threshold for requiring a loading berth. Therefore, no berth is required. C. Off -Street Parking. Off-street parking spaces shall be provided and maintained as set forth in DCC 18.116.030 for all uses in all zoning districts. Such off-street parking spaces shall be provided at the time a new building is hereafter erected or enlarged or the use of a building existing on the effective date of DCC Title 18 is changed. D. Number of Spaces Required. Off-street parking shall be provided as follows: 7. Industrial. Use Requirements Manufacturing establishment 1 space per employee on the largest working shift Storage warehouse, wholesale establishment, rail or trucking freight terminal 1 space per 2,000 sq. ft. of floor area 9. Other uses not specifically listed above shall be provided with adequate parking as required by the Planning Director or Hearings Body. The above list shall be used as a guide for determining requirements for said other uses. FINDING: The applicant is proposing a marijuana processing facility, which is an industrial use. As stated in a foregoing finding, staff finds that the siting of this industrial use as accessory to the primary farm use of marijuana production. The proposed 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 21 marijuana production is a farm use and farm uses are not included on the uses specifically listed in Section 18.116.030(D). Farm uses are typically not subject to the parking requirements of this section. Moreover, marijuana processing is not specifically listed in this section. The use also includes office and storage space. The uses are comparable to what is described under DCC 18.116.030(D)(7) since the property facilities include agricultural buildings and greenhouses. However, because the proposed use is a combined facility, staff finds the application of (D)(9) is applicable here. The applicant has provided the following parking analysis for the proposed use: The proposed use is not specifically listed in this section. The use is might most be similar to 'warehouse", which would require 10 spaces for 20,000 square foot of building area. This will also be sufficient to provide for the "1 space per employee on the largest working shift" standard, as the owner anticipates only 5 staff members might be on site at any given time. As shown on the tentative plan, ten parking spaces are proposed for the use. In a revised burden of proof statement, the applicant indicated that the number of staff onsite would be approximately 5 to 10. In the above analysis, the applicant is only taking into consideration the total area of the greenhouses, which is 20,832 square feet. However, the combined total of all buildings is closer to 25,000 square feet, which would result in 13 required vehicle parking spaces. Nevertheless, since the number of employees on the largest working shift is 10, staff finds the proposed 10 spaces provides adequate parking and thus satisfies criterion under (D)(9). E. General Provisions. Off -Street Parking. 1. More Than One Use on One or More Parcels. In the event several uses occupy a single structure or parcel of land, the total requirement for off- street parking shall be the sum of requirements of the several uses computed separately. 2. Joint Use of Facilities. The off-street parking requirements of two or more uses, structures or parcels of land may be satisfied by the same parking or loading space used jointly to the extent that it can be shown by the owners or operators of the uses, structures or parcels that their operations and parking needs do not overlap at any point of time. If the uses, structures or parcels are under separate ownership, the right to joint use of the parking space must be evidence by a deed, lease, contract or other appropriate written document to establish the joint use. FINDING: No other uses or businesses will be sharing the proposed off-street parking spaces. Therefore, these criteria are not applicable. 3. Location of Parking Facilities. Off-street parking spaces for dwellings shall be located on the same lot with the dwelling. Other required parking spaces shall be located on the same parcel or another parcel not farther than 500 feet from the building or use they are intended to serve, measured in a straight line from the building in a commercial or industrial zone. Such parking shall be located in a safe and functional manner as determined during site plan approval. The burden of proving the existence of such off -premise parking arrangements rests upon the applicant. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 22 FINDING: All required parking spaces are located on the same parcel and closer than 500 feet from the building they are intended to serve. 4. Use of Parking Facilities. Required parking space shall be available for the parking of operable passenger automobiles of residents, customers, patrons and employees only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. FINDING: A condition of approval has been added to ensure compliance. 5. Parking, Front Yard. Required parking and loading spaces for multi- family dwellings or commercial and industrial uses shall not be located in a required front yard, except in the Sunriver UUC Business Park (BP) District and the La Pine UUC Business Park (LPBP) District and the La Pine UUC Industrial District (LPI), but such space may be located within a required side or rear yard. FINDING: The required parking spaces for the proposed marijuana facility will be located over 450 feet south and located outside of the required front yard. Therefore, staff believes this criterion is not applicable. 6. On -Street Parking Credit. Notwithstanding DCC 18.116.030(G)(2), within commercial zones in the La Pine Planning Area and the Terrebonne and Tumalo unincorporated communities, the amount of required off-street parking can be reduced by one off-street parking space for every allowed on -street parking space adjacent to a property up to 30% of the required off-street parking.... FINDING: The applicant is not requesting off-street parking credit. This criterion is not applicable. F. Development and Maintenance Standards for Off -Street Parking Areas. Every parcel of land hereafter used as a public or private parking area, including commercial parking lots, shall be developed as follows: 1. Except for parking to serve residential uses, an off-street parking area for more than five vehicles shall be effectively screened by a sight obscuring fence when adjacent to residential uses, unless effectively screened or buffered by landscaping or structures. FINDING: The proposed parking area will have over five spaces so this criterion applies. The parking area will be located between the existing agricultural building and the proposed greenhouses, and thus the structures provide a buffer from the neighboring properties to the east and west. Natural vegetation, topography, and existing development provide screening between the facility and all surrounding residences and neighboring properties. Based on this information, staff finds this standard is met. 2. Any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in a residential zone. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 23 FINDING: The subject property is located within the EFU Zone and is bordered on two sides — south and west — by EFU-zoned properties. To the east and north, beyond Highland Avenue, are residentially -zoned properties. Substantial vegetation is established along the north and east sides of the subject property, which will provide a screen. To ensure compliance, any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in a residential zone. 3. Groups of more than two parking spaces shall be located and designed to prevent the need to back vehicles into a street or right of way other than an alley. FINDING: Based on staff's review of the parking lot design, vehicle parking is approximately 450 feet from Highland Avenue. Staff finds the parking spaces are located and designed to prevent vehicles from backing into a street or right-of-way. 4. Areas used for standing and maneuvering of vehicles shall be paved surfaces adequately maintained for all weather use and so drained as to contain any flow of water on the site. An exception may be made to the paving requirements by the Planning Director or Hearings Body upon finding that: a. A high water table in the area necessitates a permeable surface to reduce surface water runoff problems; or b. The subject use is located outside of an unincorporated community and the proposed surfacing will be maintained in a manner which will not create dust problems for neighboring properties; or c. The subject use will be in a Rural Industrial Zone or an Industrial District in an unincorporated community and dust control measures will occur on a continuous basis which will mitigate any adverse impacts on surrounding properties. FINDING: The subject property is located outside of an unincorporated community. The applicant proposed parking spaces will be graveled and maintained in a manner in which it will not create dust problems for the neighboring properties. Staff finds this standard can be met through a condition of approval requiring the areas used for vehicle standing and maneuvering associated with the marijuana processing use shall be constructed with a surface that is adequately maintained for all weather use and maintained in a manner that will not create dust problems for neighboring properties. 5. Access aisles shall be of sufficient width for all vehicular turning and maneuvering. FINDING: The access aisles are proposed at a minimum width of 24 feet, allowing for two-way traffic. Staff finds that this is sufficient width for all vehicular turning and maneuvering. 6. Service drives to off-street parking areas shall be designed and constructed to facilitate the flow of traffic, provide maximum safety of traffic access and egress and maximum safety of pedestrians and vehicular traffic on site. The number of service drives shall be limited to 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 24 the minimum that will accommodate and serve the traffic anticipated. Service drives shall be clearly and permanently marked and defined through the use of rails, fences, walls or other barriers or markers. Service drives to drive in establishments shall be designed to avoid backing movements or other maneuvering within a street other than an alley. FINDING: The existing driveway, access aisles, and parking areas will be sufficient, as conditioned, to accommodate service vehicles coming to this site. The drive aisles are well marked and defined by the rock surface of the drive. The buildings are located a significant distance from public right-of-way, thereby preventing backing movements or other maneuvering within the street. 7. Service drives shall have a minimum vision clearance area formed by the intersection of the driveway centerline, the street right of way line and a straight line joining said lines through points 30 feet from their intersection. FINDING: The driveway connection at Highland Avenue observes these requirements. 8. Parking spaces along the outer boundaries of a parking area shall be contained by a curb or bumper rail placed to prevent a motor vehicle from extending over an adjacent property line or a street right of way. FINDING: The proposed parking area is not located near any property boundary or street right-of-way. No curb or bumper rail is required to prevent a motor vehicle from extending over an adjacent property line or a street right of way. G. Off -Street Parking Lot Design. All off-street parking lots shall be designed subject to County standards for stalls and aisles as set forth in the following drawings and table: (SEE TABLE 1 AT END OF CHAPTER 18.116) 1. For one row of stalls use "C" + "D" as minimum bay width. 2. Public alley width may be included as part of dimension "D," but all parking stalls must be on private property, off the public right of way. 3. For estimating available parking area, use 300-325 square feet per vehicle for stall, aisle and access areas. 4. For large parking lots exceeding 20 stalls, alternate rows may be designed for compact cars provided that the compact stalls do not exceed 30 percent of the total required stalls. A compact stall shall be eight feet in width and 17 feet in length with appropriate aisle width. FINDING: The County standards for stalls and aisles as set forth in Table 1. As designed, the parking lot and all parking spaces comply with the standards set forth in Table 1. The standards in Table 1 include parking stall dimensions of 9 to 10 feet wide by 20 feet long for a 90 -degree parking angle and 9 to 10 feet wide by 19.8 to 20.5 feet long for a 45 -degree parking angle. The bay width for two-way traffic and one row and two rows of parking stalls shall be 44 feet and 64 feet, respectively. The applicant proposes parking to include one row of four 90 -degree parking stalls. The applicant's site plan illustrates the 10 parking spaces and adequate room for 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 25 access aisles and maneuvering areas. The proposed dimensions for each 90 -degree non -accessible parking space will be nine feet by 20 feet. Access aisles are proposed at a minimum width of 24 feet, allowing for two-way traffic. 3. Section 18.116.031. Bicycle Parking. New development and any construction, renovation or alteration of an existing use requiring a site plan review under DCC Title 18 for which planning approval is applied for after the effective date of Ordinance 93-005 shall comply with the provisions of DCC 18.116.031. A. Number and Type of Bicycle Parking Spaces Required. 1. General Minimum Standard. a. All uses that require off-street motor vehicle parking shall, except as specifically noted, provide one bicycle parking space for every five required motor vehicle parking spaces. b. Except as specifically set forth herein, all such parking facilities shall include at least two sheltered parking spaces or, where more than 10 bicycle spaces are required, at least 50 percent of the bicycle parking spaces shall be sheltered. c. When the proposed use is located outside of an unincorporated community, a destination resort, and a rural commercial zone, exceptions to the bicycle parking standards may be authorized by the Planning Director or Hearings Body if the applicant demonstrates one or more of the following: i The proposed use is in a location accessed by roads with no bikeways and bicycle use by customers or employees is unlikely. ii. The proposed use generates less than 50 vehicle trips per day. No existing buildings on the site will accommodate bicycle parking and no new buildings are proposed. iv. The size, weight, or dimensions of the goods sold at the site makes transporting them by bicycle impractical or unlikely. v. The use of the site requires equipment that makes it unlikely that a bicycle would be used to access the site. Representative examples would include, but not be limited to, paintball parks, golf courses, shooting ranges, etc. FINDING: The subject property and proposed use are located outside of an unincorporated community, a destination resort, and a rural commercial zone, thereby eligible for exceptions to the bicycle parking standards. The subject property has frontage on and legal direct access from Highland Avenue, also known as Highway 126. Highway 126 does not have bike lanes and is not specifically designated as a bikeway. In addition, the proposed marijuana production and inputs to that production would typically be delivered by truck and transporting them by bicycle would be impractical or unlikely. Based on this information, Staff finds the proposal is allowed an exception to the bike parking standards. 4. 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. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 26 FINDING: The applicant has proposed marijuana production in an EFU zone. This criterion is met. B. Marijuana production and marijuana processing. Marijuana production and marijuana processing shall be subject to the following standards and criteria: 1. Minimum Lot Area. a. In the EFU and MUA-10 zones, the subject legal lot of record shall have a minimum lot area of five (5) acres. FINDING: The subject property is 55.8 acres in size. This standard is met. 2. Indoor Production and Processing. a. In the MUA-10 zone, marijuana production and processing shall be located entirely within one or more fully enclosed buildings with conventional or post framed opaque, rigid walls and roof covering. Use of greenhouses, hoop houses, and similar non -rigid structures is prohibited. b. In the EFU zone, marijuana production and processing shall only be located in buildings, including greenhouses, hoop houses, and similar structures. c. In all zones, marijuana production and processing are prohibited in any outdoor area. FINDING: The subject property is located in the EFU zone. As shown on the submitted site plan and specified by the applicant, all production and processing will be located within the existing building and the proposed greenhouses. This standard is met. 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. FINDING: As allowed under Section (d) above, the subject property qualifies for up to 20,000 square feet of mature plant canopy based on the parcel size of 55.8 acres. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 27 The applicant proposes approximately 9,800 square feet in mature plant canopy area in four production greenhouses. This standard is 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 above criteria applies to properties within the MUA-10 Zone. The subject property is within the EFU Zone. This standard is not applicable. 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 marijuana production facility will operate under no more than one OLCC permit. Staff includes this requirement as a condition of approval. 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. FINDING: The marijuana production and processing facility will be established in four greenhouses and one existing agricultural building on the property. The four greenhouses intended for production will be located near the western property boundary, setback a minimum of 100 feet. The greenhouses will also have a front (north) setback of approximately 500 feet, a rear (south) setback of at least 1,300 feet, and an east side setback of at least 1,100 feet. The existing agricultural building intended for processing has an approximate 450 foot front (north) yard setback from Highland Avenue; side yard setbacks from the east and west property boundaries are approximately 970 feet and 300 feet, respectively; and the rear (south) yard setback is approximately 1,300 feet. These standards is met. 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. FINDING: The submitted application materials show the proposed greenhouses and existing agricultural building will be no less than 300 feet from off-site dwellings in the area. Although a building permit application was not submitted to Deschutes County prior to submission of this marijuana production and processing application, the applicant demonstrated that the proposed processing facility will be approximately 340 feet from the building footprint for the dwelling approved on neighboring property, tax lot 1100, to the west (see files MC -05-4, CU -02-108, and DR -09-10). This criterion is satisfied. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 28 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 applicant is not requesting an exception to the required setback requirements. 7. Separation Distances. Minimum separation distances shall apply as follows: a. The use shall be located a minimum of 1000 feet from: i. A public elementary or secondary school for which attendance is compulsory under Oregon Revised Statutes 339.010, et seq., including any parking lot appurtenant thereto and any property used by the school; ii. A private or parochial elementary or secondary school, teaching children as described in ORS 339.030(1)(a), including any parking lot appurtenant thereto and any property used by the school; iii. A licensed child care center or licensed preschool, including any parking lot appurtenant thereto and any property used by the child care center or preschool. This does not include licensed or unlicensed child care which occurs at or in residential structures; iv. A youth activity center; and v. National monuments and state parks. b. For purposes of DCC 18.116.330(6)(7), all distances shall be measured from the lot line of the affected properties listed in DCC 18.116.330(B)(7)(a) to the closest point of the buildings and land area occupied by the marijuana producer or marijuana processor. c. A change in use of another property to those identified in DCC 18.116.330(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: i. Pending a local land use decision; ii. Licensed or registered by the State of Oregon; or iii. Lawfully established. FINDING: Fifty-four properties are wholly or partially within 1,000 feet of the subject property. None of these properties is in a use described in this section or is subject to subsection (c). There is no public or private school, licensed child care center, youth activity center, national monument or state park located within 1000 -feet of the exterior boundaries of the subject property. As a result, the subject property complies with the separation distances mandated by this section. 8. Access. Marijuana production over 5,000 square feet of canopy area for mature marijuana plants shall comply with the following standards. a. Have frontage on and legal direct access from a constructed public, county, or state road; or b. Have access from a private road or easement serving only the subject property. c. If the property takes access via a private road or easement which also serves other properties, the applicant shall obtain written consent to 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 29 utilize the easement or private road for marijuana production access from all owners who have access rights to the private road or easement. The written consent shall: i. Be on a form provided by the County and shall contain the following information; ii. Include notarized signatures of all owners, persons and properties holding a recorded interest in the private road or easement; iii. Include a description of the proposed marijuana production or marijuana processing operation; and iv. Include a legal description of the private road or easement. FINDING: The subject property has frontage on and legal direct access from Highland Avenue, also known as Highway 126, which is an Oregon Department of Transportation facility, constructed to the standards of the department. The applicant has provided proof of legal access as documented through a deed, recorded with the County Clerk's Office in Volume 135, Page. 96 and Volume 141, Page 351. 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: The applicant has proposed to limit visible lighting outside the structure from 7:00 p.m. to 7:00 a.m. To ensure compliance, staff includes these criteria as conditions of approval. 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: i. Consist of one or more fans. The fan(s) shall be sized for cubic feet per minute (CFM) equivalent to the volume of the building (length multiplied by width multiplied by height) divided by three. The filter(s) shall be rated for the required CFM; or 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 30 iL 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 submitted a May 8, 2017 revised narrative report stamped by mechanical engineer Jay J. Castino. Staff confirmed Mr. Castino's certificate number on the Oregon State Board of Examiners for Engineering and Land Surveying's website, which lists Mr. Castino's license information and identifies him as a mechanical engineer. Mr. Castino provides the following information regarding the proposed facility: • Building Description o Mr. Jenkins' 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 NC 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...). • 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. o The odor control system has one or more fans that are sized for cubic feet per minute (CFM) equivalent to the volume of the building divided by three and the filter(s) are rated for the CFM, per DCC 18.116.330(8)(10)(d). Based on the submitted letter from Mr. Castino, the proposed odor control system will satisfy the requirements of DCC 18.116.330(B)(10)(d)(ii) above. As indicated, the letter confirms capable compliance with this section odor control. Compliance with this criterion can be met through the applicant's ability to comply with an ongoing condition of approval that the applicant's 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. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 31 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 letter from Jay Castino of JJC Engineering, a mechanical engineer licensed in the State of Oregon, also addresses noise impacts from the proposed use. Pertinent excerpts of his letter are provided below: • 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. Staff finds the Engineer's statements satisfy the requirements of this section. These criteria can be met. As an ongoing condition of approval, sustained noise from mechanical equipment used for heating, ventilation, air conditioning, odor control, fans and similar functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the following day. 12. Screening and Fencing. The following screening standards shall apply to greenhouses, hoop houses, and similar non -rigid structures and land areas used for marijuana production and processing: a. Subject to DCC 18.84, Landscape Management Combining Zone approval, if applicable. b. Fencing shall be finished in a muted earth tone that blends with the surrounding natural landscape and shall not be constructed of temporary materials 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. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 32 FINDING: Highland Avenue/Hwy 126, located north of the subject property, is identified on the County Zoning Map as the landscape management feature in the area. The northern half of the property, including the marijuana production and processing facility, is located within the LM Zone associated with the road. The marijuana production and processing facility are proposed within four new greenhouses and one existing agricultural building. The agricultural building was established in 2006, which included LM Zone review through file LM -05-168. The applicant does not propose an addition to this structure. The design and construction of the greenhouses does not require a building permit and thus the LM Zone is not applicable as addressed above. The applicant is not proposing any new fencing or razor wire. However, if fencing is required or desired in the future, the applicant sates the fencing will comply with this section. The applicant proposes to retain screening vegetation as part of this project. As an ongoing condition of approval, the existing tree and shrub cover screening the development from the public right-of-way and adjacent properties shall be retained to the maximum extent possible. This criterion will be met. 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: As indicated by the applicant and confirmed through comments from Central Oregon Irrigation District, the subject property contains 22.4 acres of irrigation water for use during the irrigation season of April 1 to October 31. During the off- season, November 1 to March 30, the applicant is purchasing water from ABC Lightning, LLC. This standard 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. FINDING: The subject property is within the boundaries of the Redmond Fire and Rescue District. This standard is met. 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: Dan McDevitt from Pacific Power provided the following comments on June 8, 2017. This is to advise you that Pacific Power has electrical distribution facilities near Tax Lot 2400 in SEC. 18, T. 15S. R. 13E., W.M. in Deschutes, Oregon; and Pacific Power has certified rights to provide electrical energy in this area. For 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 33 a Cannabis Grow operation, with an estimated load provided by the customer of 3000 amps 227/480 v. three phase, approx. load of 2 Megawatts. Pacific Power will provide electrical service to this project within a reasonable time after service is applied for. These extensions are provided under our Rules and Regulations as filed with the Oregon State Public Utilities Commissioners. These Rules and Regulations require that under some situations, the developer or customer will be required to participate in the line extension costs.... 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 proposes security cameras with this proposal. The applicant acknowledges the requirement noted above. The proposed security cameras will be directed to record only the subject property. To ensure compliance, staff includes it as a condition of approval. 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 acknowledges this requirement. Staff includes this requirement as a condition of approval. 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. Therefore, this standard is not applicable. 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. FINDING: The subject property does not presently have an established grow site. 20. Prohibited Uses. a. In the EFU zone, the following uses are prohibited: i. A new dwelling used in conjunction with a marijuana crop; ii. A farm stand, as described in ORS 215.213(1)(r) or 215.283(1)(o), used in conjunction with a marijuana crop; 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 34 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. b. In the MUA-10 Zone, the following uses are prohibited: i. Commercial activities in conjunction with farm use when carried on 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: i. Guest Lodge. ii. Guest Ranch. iii. Dude Ranch. iv. Destination Resort. v. Public Parks. vL Private Parks. vii. Events, Mass Gatherings and Outdoor Mass Gatherings. viii. Bed and Breakfast. ix. Room and Board Arrangements. FINDING: The applicant has indicated that none of the prohibited uses identified in this section are proposed. As a condition of approval, the uses listed in DCC 18A16.330(20) shall be prohibited on the subject property so long as marijuana production is conducted on the site. D. Annual Reporting 1. An annual report shall be submitted to the Community Development Department by the real property owner or licensee, if different, each February 1, documenting all of the following as of December 31 of the previous year, including the applicable fee as adopted in the current County Fee Schedule and a fully executed Consent to Inspect Premises form: a. Documentation demonstrating compliance with the: i. Land use decision and permits. ii. Fire, health, safety, waste water, and building codes and laws. iii. State of Oregon licensing requirements. b. Failure to timely submit the annual report, fee, and Consent to Inspect Premises form or to demonstrate compliance with DCC 18.116.330(C)(1)(a) shall serve as acknowledgement by the real property owner and licensee that the otherwise allowed use is not in compliance with Deschutes County Code; authorizes permit revocation under DCC Title 22, and may be relied upon by the State of Oregon to deny new or license renewal(s) for the subject use. c. Other information as may be reasonably required by the Planning Director to ensure compliance with Deschutes County Code, applicable State regulations, and to protect the public health, safety, and welfare. d. Marijuana Control Plan to be established and maintained by the Community Development Department. e. Conditions of Approval Agreement to be established and maintained by the Community Development Department. f. This information shall be public record subject to ORS 192.502(17). 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 35 FINDING: Compliance with the annual reporting requirements of this section shall be a condition of approval. IV. TRANSPORTATION SYSTEM DEVELOPMENT CHARGES: Board Resolution 2013-020 sets a transportation system development charge rate of $3,937 per p.m. peak hour trip, which, in this case is nine (9). Therefore, the applicable SDC based on the traffic analysis dated September 18, 2017 by Transight Consulting, LLC is $35,433 (9 X $3,937). The SDC in this application will be triggered prior to certificate of occupancy if a building permit is required or within 60 days of the land use decision becoming final. V. CONCLUSION: Based on the foregoing findings and conclusions, staff concludes that the proposed marijuana production and processing facility can comply with the applicable standards and criteria of the Deschutes County zoning ordinance if conditions of approval are met. Other permits may be required. The applicant is responsible for obtaining any necessary permits and meeting the requirements of the Deschutes County Building Safety Division and Deschutes County Environmental Soils Division, as well as obtaining any required state and federal permits. VI. DECISION: APPROVAL, subject to the following conditions of approval. VII. CONDITIONS OF APPROVAL: A. This approval is based upon the application, site plan, specifications, and supporting documentation submitted by the applicant. Any substantial change in this approved use will require review through a new land use application. B. The applicant shall assure that at least one-quarter of the farm crops processed at the facility in any calendar year, measured by weight, are produced at the farm operation on the subject property. In addition, the applicant shall provide to the Planning Division written documentation of compliance with the requirement in paragraph DCC 18.16.025(1) by submitting processed crop summaries to the Planning Division on request, and no Tess frequently than on an annual basis by January 31 of each year. C. Off-street parking areas used to fulfill the requirements of DCC Title 18 shall not be used for loading and unloading operations except during periods of the day when not required to take care of parking needs. D. Required parking space shall be available for the parking of operable passenger automobiles of residents, customers, patrons and employees only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 36 E. The areas used for vehicle standing and maneuvering associated with the marijuana processing use shall be constructed with a surface that is adequately maintained for all weather use that is not cinder and maintained in a manner that will not create dust problems for neighboring properties. The surfacing of the areas used for vehicle standing and maneuvering associated with the marijuana processing use shall be completed prior to initiating the marijuana processing use, the proposed use triggering this requirement. In addition, prior to initiation of the use, all parking spaces shall be gravel surfaced, all parking -adjacent drive aisles shall be gravel surfaced to 24 -foot width, and all two-way drive aisles to be gravel surfaced to 24 -foot width. Any signed one-way vehicle circulation drives shall be gravel surfaced to a minimum of 20 -foot width. The applicant shall submit written confirmation that the required surfacing has been completed. F. At all times, the following lighting standards shall apply: 1. Inside building lighting used for marijuana production shall not be visible outside the structure 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. Light cast by exterior light fixtures other than marijuana grow 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. G. The odor control systems described in the May 8, 2017 letter shall be equipped on the building as described and must at all times prevent unreasonable interference of neighbors' use and enjoyment of their property. The odor control system shall be maintained in working order and shall be in use at all times. H. At all times, the following noise standards shall apply: 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. I. At all times, the following fencing standards shall apply: Fencing shall be finished in a muted earth tone and shall not be constructed of temporary materials such as plastic sheeting, hay bales, tarps, etc. J. At all times, the following screening standards shall apply: 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. K. The landscaping in the vicinity of the parking adjacent to the buildings used for marijuana processing shall be continuously maintained and kept alive and attractive. 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 37 L. At all times, the following standards shall apply to security cameras: Security cameras shall be directed to record only the subject property and public rights-of-way, except as required to comply with requirements of the OLCC. M. At all times, the following standards shall apply to waste management: Marijuana waste shall be stored in a secured waste receptacle in the possession of and under the control of the OLCC licensee. N. The following shall apply regarding prohibited uses: The uses listed in DCC 18.116.330(20) shall be prohibited on the subject property so long as Marijuana Production and Processing are conducted on the site. O. The following annual reporting standards shall apply: The annual reporting requirements of DCC 18.116.330(D) shall be met. P. The use shall comply with the applicable building, fire, and OLCC safety standards. VII. DURATION OF APPROVAL: The Applicant shall obtain all required permits and initiate the use within two (2) years following the date this decision becomes final, or obtain an extension of time pursuant to Section 22.36.010 of the Deschutes 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 ;./71 Written by: Cynthia Smidt, Associate Planner Reviewed eter Gutowsky, Planning Manager 247 -17 -000172 -AD, -000173-SP, and -000180-AD, Evolution Concepts Page 38 Deschutes County Files 247-17-000172-AD/173-SP/180-AD 4800 SW Highland Ave (Highway 126), Redmond SW HIGHLANDAVE 5'.:. S PL AVESW JUNIPER S {&/&/ 0 2 w SW OBSIDIAN AVE REDMOND qq9 AVE »: I-SWQUARTZ AVE< E PL \//\ y>\ ,Z7 Park Park� Dos chutes County 7 1.1ss s NOAA \ri O � � :o,ono,00aeo,..ovo 01 Co Ir> munity Development Department Planning Division Building Safety Division ErWirarimentar Sods Div siart P.O. Box 5005 117 NW Lafayette Avenue Bend,, Oregon 97708-6005 (541) 388-5575 Fax (541) 385-1764 http://wwwr.deschutes.ard/cd MARIJUANA EVALUATION Revised Draft: September 28, 2017 2 Focus Groups: Detailed Regulation Review (Week of October 16) 1. Marijuana industry representatives including those that have received land use approval and with an Oregon Liquor Control Commission (OLCC) license. 2. Members of the public within the notice area of locally approved marijuana production sites and with an OLCC License, and participated in the related land use process. Stakeholder Interviews (Conducted October 10-20) Individual interviews will be conducted with the following groups and individuals addressing specific areas of involvement or expertise. • Members of the Marijuana Advisory Committee (MAC) not participating in the focus groups. • Agency and Service Providers • OLCC • Oregon Department of Agriculture • Oregon Water Resource Department • County Building Division • County Road Department • County Sheriff's Office • Fire Districts/State Fire Marshall • Irrigation districts (Three Sisters, Tumalo, Central Oregon, North Unit, Swalley) • Electrical utility providers (Pacific Power, Midstate Electric Co -Op, Central Electric Co -Op) Public Comment Period (October 9 -November 1) The County's marijuana webpage will provide an email address to submit written comments. Mailed comments will also be accepted. Planning Commission Work Session (November 2 or 9) • Presentation of existing conditions report • Summary of stakeholder interviews, focus groups, and written comments • Opportunity for Planning Commissioner comments Board of County Commissioners Work Session (November 6 or 8) • Presentation of existing conditions report • Summary of stakeholder interviews, focus groups, Planning Commission work session, and public comments • Determine next steps