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2017-884-Minutes for Meeting November 06,2017 Recorded 12/21/2017Recorded in Deschutes County Nancy Blankenship, County Clerk Commissioners' Journal CJ2017-884 12/21/2017 11:01:06 AM bra 2017-884miiiiumumiiiuii For Recording Stamp Only Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97703-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS Monday, November 6, 2017 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Tammy Baney and Anthony DeBone. Commissioner Phil Henderson was absent. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle, County Counsel; and Sharon Ross, Board Executive Secretary. No representatives of the media were in attendance. CALL TO ORDER: Chair Baney called the meeting to order at 10:03 a.m. PLEDGE OF ALLEGIANCE CITIZEN INPUT: None was offered. CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent Agenda. DEBONE: Move approval of item 2 BANEY: Second. Minutes of Board of Commissioners' Business Meeting November 6, 2017 Page 1 of 5 VOTE: DEBONE: Yes. HENDERSON: Absent, excused. BANEY: Chair votes yes. Motion Carried Consent Agenda Items: 1. Consideration of Chair Signature of Document No. 2017-609, Amendment 1 to OHA Intergovernmental Agreement 153121 2. Consideration of Chair Signature of Document NO. 2017-662, Amendment 2 to OHA Intergovernmental Agreement 154109 ACTION ITEMS Consent Agenda I as pulled for discussion: Consideration of Chair Signature of Document No. 2017-609, Amendment 1 to OHA Intergovernmental Agreement 153121 James Wood and Nancy Tyler, Health Services presented this item. Commissioner Baney inquired on the housing services provided to the community through this agreement. Ms. Tyler noted the services are available for those with struggles with mental health, substance use disorders, and problem gambling. DEBONE: Move approval BANEY: Second. VOTE: DEBONE: HENDERSON: BANEY: Yes. Absent, excused. Chair votes yes. Motion Carried 3. Consideration of Signature of Document No. 2017-663, a Personal Services Contract with Parametrix, Inc. for Phase II Services for the Old Bend Redmond Highway SW Canal Blvd, Tumalo Road and Deschutes Market Road Cody Smith, County Engineer presented the item for consideration. This increase in traffic presents increase in safety concerns. The department selected Parametrix and phase 1 was completed in August of this year. The phase 2 intent is start the design of all five intersection improvements. ODOT will also support a portion of funding for this project. The Road Department has the project update for public viewing and comment. Minutes of Board of Commissioners' Business Meeting November 6, 2017 Page 2 of 5 DEBONE: Move approval BANEY: Second. VOTE: DEBONE: HENDERSON: BANEY: Yes. Absent, excused. Chair votes yes. Motion Carried 4. PUBLIC HEARING: Wildlife Area Combining Zone Amendments Peter Gutowsky, Community Development Department presented the opening statements. No conflicts were disclosed; no challenges of the Board were voiced. Chair Baney opened the public hearing. Mr. Gutowsky reviewed the staff report including background and history of this item. At this time, Chair Baney asked for any public comment. Sara Gregory, wildlife habitat biologist with Oregon Department of Fish and Wildlife. Ms. Gregory commented on the state mandate to protect and promote wildlife values. One of the struggles in Deschutes County is growing human population. Ms. Gregory spoke on deer winter range and studies to track their movement and habitat features that they chose. Ms. Gregory noted it is hard for ODFW to support this text amendment because of the habitat values that would be impacted. Commissioner DeBone observed that in one instance, the church events are summer time events and do not take place during winter deer range. Ms. Gregory spoke on the footprint on the land with foraging during the summer and biologically it is important to keep that in tact. • Robert Perry, representing Redmond Patriots. Since 2010 they have provided community education on many topics. Mr. Perry and spoke on human rights to religion before the rights of the deer. • Jonathan Shephard, worship leader. Mr. Shephard spoke on the context of our basic rights and the Oregon Bill of Rights. • Tony Oliver, lives on 74th street in Redmond. Churches aren't seasonal. She has been to an activity at the Shephard's place and she spoke to the migration of deer. • Lucy Brakett, asked if the meeting can be video taped. Ms. Brakett has been to the property for a wedding and she personally knows of eight home churches in the county. She has seen deer foraging and they don't seem stressed. Ms. Bracket noted there is more stress and impact on deer with the marijuana grow operations. Minutes of Board of Commissioners' Business Meeting November 6, 2017 Page 3 of 5 • Rich Stanfield, lives on Brosterhouse. He sees deer in the area all of the time and noted deer live more in the city than in the county now. • Ray Romero, professional wildlife biologist. In regards to his representation, Mr. Shephard asked him to look at his property. Wildlife needs to be looked at in different sections for food, shelter, and water. He recognizes the winter range and agrees to an extent with the state biologist. Mr. Romero doesn't see any impact on the deer on the Shepherd property and instead noted general concern on the increase of deer population with increase of deer habitat. Mr. Romero supports the first amendment right on churches and the amendments need to be looked at as filters and is in favor of the home churches do continue and would need to look at the amendments. Commissioner Baney noted this public hearing is not about one particular property but is regarding a text amendment for all applicable lands of Deschutes County. Commissioner DeBone noted the wildlife species and legislative amendment for a proposed text change for the entire county. • Carol MacBeth, spoke on the public process on plan amendments. Central Oregon Landwatch remains opposed to the original text amendment that was proposed by the Planning Commission and they hope the Board will follow the recommended text amendment by the Planning Commission. She read the amendment that is agreeable. • John Shephard, noted the events of the past five years and is unfortunate. Mr. Shephard spoke on home churches on private land and deer populations. Mr. Shephard spoke on destroying wildlife by wilderness restrictions and difficulties in fighting wildfires which impacts wildlife. Mr. Shephard noted there are many issues that impact wildlife and it is not Shephardsfield's fault. Mr. Shephard spoke on his permits for wedding and the deer are not on the property during the event season proving no impact. Commissioner Baney asked Mr. Shephard what was imposed upon you with time, place, and manner and did he find it reasonable. Mr. Shephard has a problem with seasonal restrictions that are proposed. Commissioner DeBone inquired if Mr. Shephard was in favor of the proposed text change. Mr. Shephard noted the burden would be placed on him to demonstrate and can't support. Mr. Shephard does not like to threaten, however he warned that if this prohibition remains the issue will be taken to court. Patty Adair, looked at details of the property and is here to support Mr. Shephard's church. She spoke on the impact of wolves on the wildlife population. Ms. Adair spoke on the property improvements done by Mr. Shephard for the deer. Minutes of Board of Commissioners' Business Meeting November 6, 2017 Page 4 of 5 • Bill Kuhn, lives in the winter deer range. When it comes time to enforce wildlife habitat Deschutes County has had trouble enforcing and spoke on wildlife area combining zone. We must presume that when the land owners purchased this property when they knew it was in the wildlife area combining zone. Did they purposely know there were going to violate the land use? He asks the board to pass a text amendment to protect all creatures great and small. • Ramona and Dave Hulick — Commented their religious liberty is at risk and Deschutes County needs to be mindful of this. Chair Baney closed the oral portion of the hearing to allow for Commissioner Henderson to review the video for testimony and left the written record open, Chair Baney asked for a timeline. Mr. Gutowsky suggested leaving the written record open for two weeks to November 20 and then to continue the hearing to the last week of November or first week of December. OTHER ITEMS: None were offered. ADJOURN: Being no further items to come before the Board, the meeting was adjourned at 12:27 p.m. DATED this Day of Q _Q 2017 for the Deschutes County Board of Commissioners. Tammy Baney, it Anthony DeBone, Viceghair AT /AJ6 �-�- Philip G. enderson, Commissioner R ording Secretary Minutes of Board of Commissioners' Business Meeting November 6, 2017 Page 5 of 5 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 AM, MONDAY, NOVEMBER 6, 2017 Barnes and Sawyer Rooms - Deschutes Services Center — 1300 NW Wall Street — Bend Pursuant to ORS 192.640, this agenda includes a list of the principal subjects anticipated to be considered or discussed at the meeting. This notice does not limit the ability of the Board to address additional subjects. Meetings are subject to cancellation without notice. This meeting is open to the public and interested citizens are invited to attend. Business Meetings are usually recorded on video and audio, and can be viewed by the public live or at a later date; and written minutes are taken for the record. CALL TO ORDER PLEDGE OF ALLEGIANCE CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when the Board Chair calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing not being conducted as a part of this meeting will NOT be included in the official record of that hearing. If you offer or display to the Board any written documents, photographs or other printed matter as part of your testimony during a public hearing, please be advised that staff is required to retain those documents as part of the permanent record of that hearing. CONSENT AGENDA 1. Consideration of Chair Signature of Document 2017-609, Amendment 1 to OHA Intergovernmental Agreement 153121 2. Consideration of Chair Signature of Document 2017-662, Amendment 2 to OHA Intergovernmental Agreement 154109 Board of Commissioners Business Meeting Agenda Monday, November 6, 2017 Page 1 of 2 ACTION ITEMS 3. Consideration of Signature of Document No. 2017-663, a Personal Services Contract with Parametrix, Inc. for Phase II Services for the Old Bend Redmond Hwy, SW Canal Blvd, Tumalo Rd, and Deschutes Market Rd ("Bend - Redmond")Corridor Improvement Project - Cody Smith, County Engineer 4. PUBLIC HEARING: Wildlife Area Combining Zone Amendments - Peter Gutowsky, Planning Manager OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. ADJOURN To watch this meeting on line, go to: www.deschutes.org/meetings Please note that the video will not show up until recording begins. You can also view past meetings on video by selecting the date shown on the website calendar. Deschutes County encourages persons with disabilities to participate in all programs and activities. To request this information in an alternate format please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.org/meetingcalendar (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Board of Commissioners Business Meeting Agenda Monday, November 6, 2017 Page 2 of 2 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/ AGENDA REQUEST & STAFF REPORT For Board of Commissioners Business Meeting of November 6, 2017 DATE: October 31, 2017 FROM: Peter Gutowsky, Community Development, 541-385-1709 TITLE OF AGENDA ITEM: PUBLIC HEARING: Wildlife Area Combining Zone Amendments The Board of County Commissioners is conducting a public hearing on November 6, 2017 to consider Comprehensive Plan and zoning text amendments relating to Deschutes County's Wildlife Area Combining Zone. t L r Community Development Department Planning Division 8ullding Safety Division Environmental Soils Division P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005 Phone; (541) 388-6575 Fax, (541) 385-1764 http://vvww.deschutes.org/cd MEMORANDUM TO: Deschutes County Board of Commissioners FROM: Peter Gutowsky, AICP, Planning Manager DATE: October 31, 2017 SUBJECT: Wildlife Area Combining Zone Amendments / Deliberation The Board of County Commissioners (Board) is conducting a public hearing on November 6, 2017 to consider amendments relating to Deschutes County's Wildlife Area Combining Zone. The amendments were provided to the Board at their November 1 work session.' I. PRIOR WRITTEN TESTIMONY As a courtesy, staff is providing the Board with written correspondences entered into the record to date. All but one, an October 27 email correspondence from John Shepherd, were submitted to the Planning Commission during their public hearing process. The written testimony is organized alphabetically (Attachment). Four support the amendments. • Dalton • Perry • Romero • Shepherd Thirty-eight oppose. • Addy • Albright • Blakeslee • Borgers • Boyd • Brocker • Clark • Cloudas • Dewey • Drucker • Eagle • Elshoff • Laferriere • Fizz • Lakin • Furry • Lipsitz • Gould • Loughney • Hamper • Mayer and Morales • Jewett and Graham • Meredith • Jinings (DLCD) • Morton • Kerry • Olin • Kriegh • Rippberger • Kruse • Roche • Kuhn • Ryter 1 http://deschutescountyor.igm2.com/Citizens/FileOpen.aspx?Type=1&ID=1719&Inline=True Quality j Services Plerf orrt:ed with Pride • Sickler • Winchel Wylie • Thompson • Wuerthner Attachment Written testimony -2- From: Michelle Addv To: Peter Gutowskv Subject: Don"t weaken wildlife protections Date: Thursday, October 5, 2017 11:04:05 AM Sent from my Whone From: Adam Albriaht To: Peter Gutowsky Subject: Don"t weaken wildlife protections Date: Tuesday, October 3, 2017 3:39:28 PM Hi Peter, I'm writing to ask that you maintain the protection of the Metolius Mule Deer winter range and not allow it to be impinged upon by a privately owned wedding venue that portrays itself as a Church. In the coming years and decades it's especially important to balance the pressures of developments of all sorts with the needs of our native wildlife and ecosystems. Please stand strong on this issue. Thank you, Adam Albright 321 NW Drake Rd. Bend, OR 97703 From: Jeannie Blakeslee To: Peter Gutowskv Subject: Wildlife Habitat Protection Date: Friday, October 6, 2017 12:40:30 PM I am opposed to any weakening of current land use laws that protect our wildlife and their habitats Allowing commercial events to occur on lands designated as habitat is inconsistent with present land use laws. The laws apply to everyone, including landowners who propose for-profit activities, such as establishing a "church" on protected lands. Changing the wildlife code to accommodate landowners' proposed for-profit projects would potentially result in long-term negative environmental impacts. These impacts would reach far beyond the specific "church" project being proposed, and sets a very unfortunate precedent. Once commercial activities are allowed on protected lands, it becomes much easier for additional shifts towards development to occur, and the habitat would be lost. Fiscal interest and expediency will have its own cost. I urge the County personnel to seriously consider denial of the landowners' proposal. Sincerely, Jeannie Blakeslee From: Jann and Mark Boraer To: Peter Gutowskv Subject: Don"t weaken wildlife protections Date: Friday, October 6, 2017 10:47:52 AM Hi Peter, My name is Mark Borgers. I don't want to see our deer range degraded. - Our deer populatIon is dw1,,,ndliJirtg. It is more important than ever to protect habitat frond the disruption and degradation associated with additional development. - Deer are as rnuch a part of Ceirftrafl Oregon as the Three Sisters and the Deschutes River, Critical habitat should not be lost to further development. - Allowing churches in the winter range sets a dangerous precedent for our s wildlife. If churches are alIovrtsed, other types of assemblfes that are currentIly prohibited such as, gollf courses, sschoofls,, pr b[1c rec carters, and otllliiers can argute that they should be allowed lin the vviinter range or other crii,111call, habi�,tat, too. This would quickly (,,,rode wildlife habitat protections. . r ule dear are protected lby Land Usse Plianniing Goall 5. Making art exception to [his goal can lead to other Goal 5-prolLected resources, such as we and riparian areas, being compromised. - �PVH'dfffe-related acUlviitfles are an Important part of Descll utess Coun,1y's economy, We don't need to expedite fl-te loss of habitat, and this revenue, by allowing commercial event venues in the winter range. - I am a hunter, When degradation of critical deer habitat causes displacement and populations decline, nny rf,.glr,,,,t to recii eate is �.`nf dinged upc n., - Even though the proposed events are to take place in the summer, deer and other wildlife migrate through and reside in the space year-round. It makes i.ri.o difference to a rrfu,e deer whcather its hablitat is degraded in the vi1inter or s u m m e r ma) n t h s,, o 'There is plenty of space in the county for a wedding venue or church to operate. Deer winter range only accounts for a small fraction of Deschutes County land and is considered critical habitat. Churches can be moved, the w,inter range cannot. , It is unacceptable for the county to amend its wildlife code to accommodate the for-profit ventures of individuals. County codes and wildlife protections are a service to the public. Th4s. proposed code amendment does a disservice to the publilic and our natural resources for the benefit of a for-profit event venue. Mule deer are part of the Central Oregon way of life. The county should stand Thank you, Mark Borgers From: bmd To: Peter Gutowsky Subject: Deer habitat Date: Tuesday, October 3, 2017 3:14:04 PM Peter Gutowsky: I am writing in regard to the proposal to allow "churches" in protected wildlife habitat. I was unable to attend the hearing. I have lived in Deschutes County since 1939 and Tumalo since 1981. 1 am a biologist by training and have developed my acreage with wildlife in mind. We have had a "resident" deer herd of about fifteen to twenty deer in our area for years, but the numbers have declined to about six to ten in the last few years. It appears that increased traffic on local roads and the subdividing of property is taking its toll. Houses have been placed in local migration routes. Deschutes County seems insensitive to the needs of wildlife. Allowing more subdivisions in deer habitat west of Bend is a prime example, not to mention expansion of Toll Gate south of Bend. Allowing "churches" on land designated for wildlife is simply one more nail in the coffin. I can understand the concern of Deschutes County about litigation, but a stand for wildlife habitat must be taken. If Deschutes County allows this to take place, I hope the state of Oregon overturns the decision. Very truly yours, Charles Boyd 20160 Tumalo Rd. Bend, OR 97703 From: bfbfbrocker(@amail.com To: Peter Gutowsky Subject: Weakening wildlife habitat protections in the Metolius Deer Winter Range Date: Wednesday, October 4, 2017 5:53:07 AM Dear Mr. Gutowsky, I am a Deschutes County resident and a pastor's wife of a mainline church with a long history of enjoying wildlife. It saddens me that someone will use the definition of the church to pursue personal financial gain. I hope the people who are making the decisions can also distinguish the difference. Barbara Brocker From: Ronda Clark To: Peter Gutowskv Cc: Joanne Richter Subject: Oppose weakening wildlife protections Date: Tuesday, October 3, 2017 4:59:31 PM Dear Mr. Gutowsky, Please do not weaken any wildlife protections for the Metolius Deer Winter Range. We are hosting a conference on November 19, to discuss the challenges ungulates face with urban expansion, transportation, etc and weakening protections would pose additional challenges for this sensitive group. Please attend our program if you can. The link for registration is below. hIU2://www.sig=genius.com/go/2OfOf44afa729a5fa7-arewildlife Rynda Clark, BE BOLD, BE BRAVE, BE A BROAD Central Oregon Bitterbrush Broads, Great Old Broads for Wilderness, hM2://greatoldbroads.org/or-be . Facebook - www.facebook.com/bitterbrushbroads. 760.445.8653 From: keith Cloudas To: Peter Gutowskv Subject: wildlife protection Date: Wednesday, October 4, 2017 8:06:33 PM Hi Peter My name is Keith Cloudas and I am against weakening wildlife habitat protection in the Metolius deer winter range. The central Oregon deer populations are at all time lows due to loss of habitat and many other factors. We should be good stewards of our wildlife and protect our remaining herds.I oppose the countys proposal to allow these "so called churches" to perform weddings in winter habitat deer range. Please do the right thing and prohibit the weddings . I am counting on you to uphold the ban.Thank you Keith Cloudas From: Adam Smith To: Peter Gutowskv Subject: FW: Comments from Shepherdsfield Church regarding the pending county code application Date: Thursday, October 5, 2017 2:28:35 PM Attachments: Shepherdsfield Church Memo 10 05 17.odf D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Fax: (541) 617-4748 adam.smithna deschutes.ora THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. From: Dan Dalton[mailto:ddalton@daltontomich.com] Sent: Thursday, October 05, 2017 10:29 AM To: Adam Smith <Adam.Smith@deschutes.org> Cc: John Shepherd <shepherdsfield@gmail.com> Subject: Comments from Shepherdsfield Church regarding the pending county code application Dear Adam, Please find attached my comments concerning the objections by Landwatch to the Code Amendment. Thank you for your consideration. Dan Daniel P. Dalton Dalton & Tomich PLC The Chrysler House 719 Griswold Street, Suite 270 Detroit, Michigan 48226 T: 313.859.6000 Ext. 114 F: 313.859.8888 E: ddalton(@daltontomich.com www.daltontomich.com www.attorneysforlanduse.com Notice from Dalton & Tomich PLC This internet message may contain information that is privileged, confidential, and exempt from disclosure. It is intended for use only by the person to whom it is addressed. If you have received this message in error, please (1) do not forward or use this information in any way, and (2) contact me immediately. Neither this information block, the typed name of the sender, nor anything else in this message is intended to constitute an electronic signature unless a specific statement to the contrary is included in this message. MEMORANDUM In support of Petitioner Shepherdsfield Church To: Duschutes County Hearing Officer 117 NW Lafyette Ave. Bend, Oregon 97703 From: Shepherdsfield Church Daniel P. Dalton, Esq. Dalton & Tomich PLC The Chrysler House 719 Griswold Street, Suite 270 Detroit, Michigan 48226 (313) 859-6000 ddalton@daltontomich.com Date: October 5, 2017 Re: Case No. 247 -16 -000159 -SP, 161 -AD Application to use farm dwelling as a Church Dear Hearing Officer, Thank you for the opportunity to comment on the pending application. I represent Shepherdsfield Church in the above referenced matter The question before you is whether a residential Church is a permitted use on the subject property and whether the use of the property as a Church includes sacramental uses, such as weddings, and the attendant wedding receptions, to be performed on the subject property pursuant to the Oregon Revised Statues Chapter 215, and Title 18 of the Deschutes County Zoning Code. Based on the case law set forth below, and the testimony at the hearing, it is clear that the answer is yes. A home Church use is permitted outright in an Exclusive Farming Zone under DCC Section 18.16.025. Therefore, as stated in ORS 215.441(2), the County is required to allow weddings and wedding receptions as they are "activities customarily associated with the practices of the religious activity" taking place on the church property. FACTS Shepherdsfield Church ("Church") is a small fellowship of Christian believers who have been meeting together as a house Church since 2009. Church members meet together every Sunday for worship, bible study, ministry, and prayer. The Church encourages practice outreach to those in the community, both Christian and non-Christian. As part of this belief, the Pastor John Shepherd and his wife, Stephanie Shepherd, officiate and provide weddings and memorial services on the grounds of the House Church. In order to minister to those of lesser means, marriage services are offered at a reduced price. By comparison, other wedding venues charge $350-$500 for officiating, where Pastor Shepherd only ask $150. Pastor Shepherd also provides premarital and marriage counseling to those involved. His ministry started when he first hosted and performed two wedding ceremonies on the property for members of his congregation. From there, the property was open for others outside of the Church to be married. The Shepherd's' predecessor, Darlene Woods, received a conditional use permit to establish a farm -related dwelling on the subject property and to site the dwelling on the property more than 300 feet from a public or private road in the Wildlife Area Combining Zone ("WA"). A subsequently modification of her farm management plan was approved by the Deschutes County ("County") based on findings that the property was then engaged in farm use consisting of cattle grazing. Ms. Woods submitted a farm management plan, and a wildlife management plan, which stated that human activity would be limited to the southeast corner of the property, and that there would be very little vehicular usage of the access driveway. The farm dwelling approval was conditioned on implementation of the farm management plan. On December 18, 2 2014, the County issued an administrative approval of a modification to Ms. Woods' dwelling conditional use decision. The modification wholly removed the Wildlife Management Plan required under the previous decision and replaced it with six conditions of approval designed to protect and enhance deer habitat on the property. On or about 2012, Central Oregon Landwatch ("Landwatch") filed a legal complaint against the Shepherds concerning the weddings hosted on the privacy of their 216 acre property. The Shepherds were required to obtain the necessary permits or cease holding weddings on the property. When Pastor Shepherd informed the county that his House Church met on the property and therefore had a Constitutional right to host weddings, the County issued a code violation notice to Mr. Shepherd stating, "a church has located on the property without necessary permits. In response, the Shepherds completed a series of land use applications, all of which were opposed by Landwatch. In 2015, the Shepherds applied for a "Private Park" permit to allow weddings on the property. The park, called "Shepherdsfield Park," would host weddings, wedding receptions, special events, and recreational activities. On February 3, 2015, Deschutes County approved the permit to host weddings, but did not grant permission to hold church service, as this required a separate permit. To date, Shepherdsfield house church is prohibited from meeting at the Shepherds' residence until this permit is approved. Landwatch subsequently appealed the Private Park permit to the Land Use Board of Appeals ("LUBA"), arguing that while the reception was recreation, and therefore "park like," wedding ceremonies were not recreational in nature. LUBA agreed, and on April 17, 2015, the decision of the County was reversed. On February 3, 2016, the Court of Appeals of the State of Oregon upheld LUBA's decision. 3 Shepherdsfield Church began meeting in 2009 and incorporated in the state of Oregon in 2013, and acquired 501(c)(3) status from the Internal Revenue Service in 2016. The subject property is zoned Exclusive Farm Use—Lower Bridge Subzone ("BFU-LB"), and is within the Wildlife Area Combining Zone. The property is designated Agricultural on the Deschutes County Comprehensive Plan map. John and Stephanie Shepherd propose to use their property as a church. Specifically, church use of the property would include: (1) weekly services, primarily conducted in the existing dwelling; (2) church related events, specifically weddings, restricted to mid-May through mid-October; (3) family and marriage counseling; and (4) church functions allowed by Oregon Revised Statute Section 215.441. The following demonstrate the proposed limitations on the church use: the church will have a maximum capacity of 25 persons; all events associated with activities, including amplified music, parking, sanitation, and food preparation, will comply with County guidelines; a limit of 250 guests will be imposed on church events; and the only two areas of the house that will be available for church and event related activities would be the downstairs and two bedrooms upstairs. ANALYSIS Landwatch objects to the Church's current land use application on four points. First, Landwatch asserts that ORS 215.441 does not allow a church situated in a residence. Second, Landwatch argues that the Church is in code violation over its Farm Management Plan, and therefore Deschutes County is prohibited from approving an application for any other use of the land. Third, Landwatch maintains that DCC Section 18.88 prohibits churches in the Metolius Deer Winter Range. Fourth, Landwatch argues that RLUPIA protection should not apply to E Shepherdsfield Church in that they could meet at an alternate site that does not interfere with Metolius Deer Winter Range. The church will respond to each objection below. Objection One Oregon Revised Statute Section 215.441 proscribes the way in which individual counties in the state of Oregon may regulate the use of real property for religious activities. Subsection (1) of the statute provides the following: If a church, synagogue, temple, mosque, chapel, meeting house or other nonresidential place of worship is allowed on real property under state law and rules and local zoning ordinances and regulations, a county shall allow the reasonable use of the real property for activities customarily associated with the practices of the religious activity, including worship services, religion classes, weddings, funerals, child care and meal programs, but not including private or parochial school education for prekindergarten through grade 12 or higher education. "The easiest way to understand ORS 215.441 is to break its requirements into two steps." Catholic Diocese of Baker v. Crook County, 60 Or LUBA 157, 167 (2009). The first step requires that a county determine whether its zoning ordinance allows a "church, synagogue, temple, mosque, chapel, meeting house or other nonresidential place of worship" on the property in question. Id. Under Deschutes County Code ("DCC") Section 18.04.030, "'[c]hurch' means an institution that has nonprofit status as a church established with the Internal Revenue Service." In January of 2016, the Church obtained 501(c)(3) status with the IRS, and therefore can property be identified as a "church" for purposes of the DCC, thereby rendering the statute applicable. However, Landwatch contends that the phrase "other nonresidential place of worship" implies that the statue applies to "church[es], synagogue[s], temple[s], mosque[s], chapel[s], [and] meeting house[s][,]" but does not apply to residential places of worship. k, Therefore, the fact that Shepherdsfield Church is a house church would preclude ORS 215.441 from application in this case because the Church in question is not a "nonresidential place of worship." In support of this view, Landwatch cites to LUBA's decision in Bechtold v. Jackson County, LUBA No. 2001-187, stating that "the term `nonresidential place of worship' has to be interpreted strictly because it is an EFU farm provision."' In Bechtold, LUBA had to resolve whether the county hearings officer had erred in concluding that a church's proposed rectory, convent, and office/dormitory were not properly viewed as a "church" as that term is used in ORS 215.283(1)(b). The church argued that ORS 215.283, which allows churches outright in EFU zones, read together with local provisions, "authorize[d] the rectory, convent, and office/dormitory as church accessory buildings, structures or uses, even if they are not properly viewed as church structures or uses." In response, LUBA concluded: Counties may not impose locally adopted barriers to churches or the other uses that are allowed outright under ORS 215.283(1). However, neither may counties adopt zoning ordinances that allow uses that the relevant EFU statues would not allow. Therefore, even if petitioner is correct that LDO 00.040(4) can be interpreted expensively to allow accessory uses that are not otherwise allowed in the applicable county zoning district if they are shown in individual cases to be "necessary," and "appropriate and subordinate" to an allowed use in the zoning district, the same is not true for the county's EFU zone. The county may not expand the uses that are allowed in its EFU zone to allow uses that would not also be allowed by the statute .... [F]or purposes of the required legal analysis in this case, the meaning of LDO 00.040(4) is irrelevant, because whatever it means may not expand the meaning of the word "church" in ORS 215.283(1)(b) to allow buildings, structures, or uses that the statutory term itself does not include. (Internal citations omitted). ' Oregon Central Landwatch staff attorney, Carol MacBeth, during the June 28, 2016, Deschutes County Hearings Officer Hearing, made this statement. X Presumably, Landwatch interprets this statement to mean that Deschutes County cannot expand the express meaning of ORS 215.4412 through its own zoning ordinances. Therefore, Landwatch argues that because ORS 215.441 expressly lists "nonresidential place[s] of worship", the DCC provision that permits churches in the EFU, DCC 18.16.025, may not expand on this definition by failing to separate churches into "residential" and "nonresidential" thereby allowing "residential," such as house churches, churches outright. However, Landwatch misinterprets the legislature's use of the phrase "nonresidential." In Friends of Yamhill County, Inc. v. Board of Comr's of Yamhill County, 237 Or.App. 149 (2010), the Court of Appeals of Oregon explained: Zoning laws typically define allowed "uses" by referencing particular activities on land or structural improvements to land. See, e.g., ORS 215.213 and ORS 215.283 (listing of "uses" allowed in [EFU] zones as including certain types of structures (e.g., "public or private schools," "churches," and "dwellings") and "operations" or activities on land (e.g., "operations for the exploration for minerals" and "creation, restoration or enhancement of wetlands")); ORS 215.441 and ORS 227.500 (regulating "use of ... real property for activities customarily associated with places of worship). Thus, in ORS 215.441, the legislature attempted to restrict the way in which counties regulate the use of the property by reference to the particular religious activities that take place on said property. Accordingly, the term "nonresidential" refers to the fact that the proposed "use" of the real property must not be residential, but rather for "religious activity," as expressly provided by the title of the statute. This interpretation was exemplified in Bechtold, in which the proposed structures allowed by the county were those in which the proposed "use" would be related to 2 ORS 215.441 was adopted by the 2001 Legislature but did not take effect until January 1, 2002, after the May 11, 2001 application was submitted in this matter and after the hearings officer's November 7, 2001 decision. "Petitioner does not argue that the county's decision violates ORS 215.441 ... and we therefore do not consider whether th[at] statute[] might directly apply to provide a basis for reversal or remand in this case." Bechtold v. Jackson County, LUBA No. 2001-187. 7 religious activity—the private chapel, the main chapel, and the private study/prayer rooms—i.e. "nonresidential" uses. In contrast, those structures prohibited by the county were those in which the "use" would be residential: the rectory, convent, and guesthouse. In the instant case, Shepherdsfield Church attempts to secure the right to use the dwelling on the property for worship services, bible study, and marriage and family counseling. The fact that the underlying structure is a residence is immaterial, as the proposed use of the property is for "religious activity."3 According to Landwatch's counsel, "[t]he legislature specifically used this unusual phrasing, `nonresidential place of worship,' which I have not come across before. They must have had some reason for picking that phrase." In fact, in Catholic Diocese of Baker v. Crook County, 60 Or LUBA 157 (2009), the Land Use Board of Appeals clarified: The words "or other nonresidential place of worship" were added when the original legislation, which referred only to "church" was amended to add the words "synagogue, temple, mosque, chapel, meeting house." The words "or other nonresidential place of worship" presumably were the legislature's attempt to recognize that the words "church, synagogue, temple, mosque, chapel, meeting house" might not adequately describe all religions' places of worship. Thus, through its use of the phrase "or other nonresidential place of worship," the legislature specifically provided for a broad category of structures in which religious activity may take place. Arguably, a house church where worship services, bible studies, and other religious activities occur, is within the parameters of this statute. 3 Havurah v. Zoning Bd. Of Appeals, 177 Conn 440, 418 A2d 82 (1979) (nontraditional synagogue's use of building for overnight accommodations all days of the week found to constitute church accessory use under applicable zoning ordinance); Overbrook Farms Club v. Zoning Board, 351 Pa 77, 40 A2d 423 (1945) (conversion of one single-family dwelling to use as a dwelling, rabbi's office and synagogue found to be permissible in a zoning district that allowed single-family dwellings, offices and places of worship); Richmond Heights v. Presbyterian Church, 764 SW2d 647 (1989) (daycare center on church property found to qualify as a church accessory use under broad zoning ordinance definition of accessory use). Pursuant to ORS 215.441, once it is established that the religious entity in question fits within the definition of "church, synagogue, temple, mosque, chapel, meeting house or other nonresidential place of worship[,]" it must be determined whether it "is allowed on [the] real property under state law and rule and local zoning ordinances and regulations[.]" As previously stated, under ORS 215.283, churches are permitted outright in EFU zones. The provision expressly allows "[c]hurches and cemeteries in conjunction with churches." DCC Section 18.16.025(C) mirrors this provision, stating that churches are permitted in EFU zones subject to the provisions of Section 18.16.0384 or 18.16.0425, and, where applicable, review under Chapter 18.124. Subsection "C" of 18.16.025 expressly lists "[c]hurches and cemeteries in conjunction with churches consistent with ORS 215.441 and OAR 660-033-0130(2)6 on non -high value farmland" as permitted uses. Because both the ORS and the DCC allow churches outright in EFU zones, the county will then proceed to step two of its ORS 215.441 analysis. The second step requires that counties allow "activities customarily associated with the practices of religious activity." According to Catholic Diocese of Baker: "The words `the practices of the religious activity' introduce an ambiguity. However, in context, it is reasonably clear that the underlined language protects activities customarily associated with the `church, 4 Section 18.16.038 is titled "Special Conditions for Certain Uses Listed Under DCC 18.16.025." These "Certain Uses" include wineries, farm stands, and sites for the takeoff and landing of model aircrafts. 5 Section 18.16.042 is titled "Agri -Tourism and other Commercial Events or Activities Limited Use Permit." The commercial events to which this Section pertains are those that are related to and supportive of agriculture, such as farm stands, corn mazes, and fruit picking. These agri- tourism and commercial events or activities may only be approved subject to the standards and criteria of Section 18.16.042. 6 OAR 660-033-0130 states that the specific development and uses listed are permitted in areas that qualify for the designation pursuant to the division. Church use is listed in the table ad "R2." The "R" code specifies that the use may be allowed after required review. The use requires notice and the opportunity for a hearing. Here, the noticed, scheduled public hearing satisfies this requirement. D synagogue, temple, mosque, chapel, meeting house or other nonresidential place of worship' that was identified in step one." Therefore, if an activity is customary at a religious entity identified in step one, ORS 215.441(1) requires that the county allow the activity. According to the statute, examples of permitted activities include "worship services, religion classes, weddings, funerals, childcare or meal programs, but not including private or parochial school education for prekindergarten through grade 12 or higher education." Here, Shepherdsfield Church's proposed uses include "(1) weekly [worship] services ... ; (2) church related events, specifically weddings ... ; (3) family and marriage counseling; and (4) church functions allowed by ORS 215.441." Further, the proposal does not include private or parochial school education for prekindergarten through grade 12 or higher education. Presumably, the religious activity proposed by Shepherdsfield Church are permitted accessory uses consistent with those outlined in the statute, and Deschutes County is therefore required to permit the Church to proceed with those activities. However, Landwatch argues that, although wedding ceremonies are expressly listed as a permitted accessory use, wedding receptions are not. Specifically, Landwatch contends that a wedding reception qualifies as a secular celebration, and cannot take on the religious nature of the ceremony that precedes it. Wedding receptions hosted by 501(c)(3) corporations are more accurately categorized as commercial transactions, as the corporation church is renting out its real property for profit. According to Catholic Diocese of Baker, LUBA considered whether ORS 215.441 required the county to approve a pastor center as an accessory use associated with a Catholic church. In that case, the court noted that, [u]nder ORS 215.441(1) the question is not whether chanceries or pastoral centers such as the one that is proposed in this case are customarily associated with the Catholic Church or Catholic faith in general. It seems undisputed that they are. The question under ORS 215.441(1) is whether a chancery or pastor center for a 10 17 -county Catholic Diocese like the Diocese of Baker is customarily located at the site of a rural retreat center and chapel. Further the court stated that, "under step two, the custom of the particular place of worship dictates the scope of the protected activities." Therefore, whether or not wedding receptions are permitted under the statute hinges on whether such ceremonies are a custom of Shepherdsfield Church. According to Pastor John Shepherd's description of the Church's activities: [The Church] encourage[s] and practice[s] outreach to those in [the] community, both Christian and non-Christian. The pastor and his wife, John and Stephanie Shepherd, also officiate and provide weddings and memorial services on the grounds of the House Church .... In order to minister to those outside the church as an outreach and to those with lesser means, this service is offered at a reduce price considerably below what others charge. By comparison, other wedding venues charge $6,500 while we ask only $1,950 for equal value. While other ministers charge $350-$500 for officiating ... we ask only $150. Pastor Shepherd also offers premarital and marriage counseling to those involved. This ministry started when John Shepherd first hosted/performed two weddings on the property for members of his congregation. After that, he opened up the grounds for others outside the church to be married. The Church's ministry prides itself on encouraging and supporting the values of marriage. It has exemplified this through its practice of providing a low-cost alternative for officiating and hosting wedding ceremonies and receptions. Providing these services to the community is an essential means through which church members practice ministerial outreach. Therefore, the wedding receptions held on the subject property can be properly classified as an "activity[y] customarily associated with the practices of religious activity," as it is established that wedding ceremonies are a "custom of the particular place of worship [that] dictates the scope of the protected activities" under ORS 215.441(1). Although the statute expressly lists "worship services, religion classes, weddings, funerals, child care and meal programs" the list is not mean to be exhaustive, but rather examples of the types of accessory activities permitted. 11 Further, it should be noted that ORS 215.441(2) authorizes a county to require the proposed church use to comply with the site and design review provisions of DCC 18.116 and 18.124: "A county may ... [s]ubject real property described in subsection (1) of this section to reasonable regulations, including site review or design review, concerning the physical characteristics of the uses authorized under subsection (1) of this section ...." Alternatively, a county may: "[p]rohibit or restrict the use of real property by a place or worship ... if the county finds that the levels of service of public facilities, including transportation, water supply, sewer and storm drain systems is not adequate to serve the places of worship...." Absence of a site review plan was listed as a means for denial of the Shepherds' Private Park permit. Compliance under these code section is discussed at length in the Community Development Department's Staff Report. Landwatch also references Reed v Jackson County, LUBA No. 2009-136 (20 10) where the Court noted: "...If there is a church located on EFU-land, weddings can occur at the church, but if there is no church for the weddings to be `customarily associated with the practices of,' then weddings are not allowed under ORS 215.441. Because there is no church or other place of worship on petitioner's property, weddings are not permitted uses on petitioner's property under ORS 215.441." Reed v Jackson County, LUBA No. 2009-136 (20 10) In this matter, Shepherdsfield church IS located on the property. First, the County Code violation notice states "This letter is to inform you of an alleged violation of the County Code associated with your property; specifically, that a church has located at the property without required land use approval." Therefore, the County concedes that a church has located on the subject property. In addition, the County defines a "church" as a religious entity with IRS designation 501 C 3 status. Shepherdsfield qualifies as a church. Finally, there is no limitation 12 within the referenced case where LUBA has held that a church may not locate within a residence, only that church residential buildings are not necessarily considered churches. A church is an ORS 215.283(1) use. This means it is permitted outright on land zoned EFU. Deschutes County may not impose restrictions on the use unless authorized administrative regulations adopted by the Department of Land Conservation and Development or State law. DCC 18.16.025 recognizes this fact by regulating the use as a use subject to special provisions. Deschutes County's hearings officers, including Karen Green and Isa Taylor, have held that the County may not impose any approval criteria other than those imposed by State law. Brentmar v. Jackson County, 321 Or 481, 900 P2d 1030 (1995)(uses listed in ORS 215.213(1)/ORS 215.283(1) are uses permitted outright on land zoned EFU as intended by the Oregon Legislature); LCDC v. Lane County, 325 Or 569, 942 P2d 278 (1997)(LCDC may impose additional requirements to ORS 215.213(1)/215.283(1) uses but counties may not); WKN Chopin LLC v. Umatilla County, 66 Or LUBA 1 (2012)(ORS 215.283(1) use not subject to County comprehensive plan policies). I sum, the first objection posed by Landwatch must be rejected. Objection Two Landwatch next argues that Shepherdsfield Church's land use application is prohibited from approval by the county because the Church is currently in violation of its existing Farm Management Plan ("FMP"). The existing farm -related dwelling was approved under County file Nos. MA-01-9.CU- 00-65 and included an FMP and a Wildlife Management Plan. The FMP in question came about in July of 2001 when the Church's predecessor in interest, Darlene Woods, received a conditional use approval to establish a farm -related dwelling on the subject property (CU -00- 13 65/MA-01-9). Subsequently, Ms. Woods applied to modify the conditional use application to modify her FMP and to move the dwelling location. The modified application was approve by an administrative decision. The approval was predicating on findings that the property was currently engaged in "farm use" consisting of cattle grazing, and noted that it was necessary for someone to dwell on the property at all times in order to care for such livestock. Landwatch asserts that the FMP runs with the land, and its approval in its attendant condition transfers to the applicant as its successor in interest. Therefore, the Church is required to adhere to the FMP, which calls for production of 30 hogs each year, and 12 cow -calf pairs produced each year to be sold at live auction or private sale. Currently, the Church raises cattle on the subject property, but no hogs.7 Thus, Landwatch argues that the Church is in noncompliance of the FMP. Landwatch then cites to DCC 22.20.15, which states that "if any property is in violation of applicable land use regulations and/or the conditions of approval or any previous land use decisions or building permits issued by the County, the County shall not ... [a]pprove any application for land use development[.]" Landwatch therefore concludes that the county is prohibited from issuing approval on the Church's land use application until it is in compliance with its FMP, i.e. until it produces the necessary livestock. However, the Community Development Department's ("CDD") Staff Report notes that, Staff believes that there is nothing in the farm -related dwelling approval that requires the applicant to continue the prior owner's agricultural operations or to complete the future activities described in the FMP. The present criterion requires that the proposed development relate harmoniously to exiting development. Since neither the previous cattle operation nor the contemplated hog operation is 7 The Community Development Department's Staff Report also notes the Ms. Woods' FMP stated, among other provisions, that human activity would be limited to the southeast comer of the plateau at the top of the property and that there would be very little vehicular usage of the access driveway. 14 "existing" on the property, Staff finds there is no requirement under this criterion that the church be harmonious with those farm uses.8 "ORS 215.283(1)(f) allows dwellings `customarily provided in conjunction with farm use' on EFU lands .... `Farm use' is defined in the statute under both statute ORS 215.203(2)(a) as `the current employment of land for the primary purpose of obtaining a profit in money' from farming activities."' (Emphasis added). As required, the subject property is in current employment of the land for the purpose of obtaining a profit from agriculture, specifically a small poultry operation and a herd of 10 cows, which graze 209 dryland acres and 4 irrigated acres of the 216 -acre parcel. Photos were provided to demonstrate this. Landwatch argues that the original Farm Management Plan called for the raising of hogs but the County has never required strict adherence to the specific crops designed in the original IMP, but rather has always allowed farmers the latitude to rotate crops or alternate farm products. Finally, there is not now, nor ever has been, a formal county "violation" of the IMP. In sum, Landwatch's second objection must be rejected. Objection Three Landwatch next argues that DCC 18.88 prohibits churches in the Metolius Deer Winter Range. As previously stated, the subject property is zoned for Exclusive Farm Use, and is within the Wildlife Area Combining Zone. The WA zone is an overlay zone that adds requirements to the base zone (EFU) in which the lot or parcel is located. The purpose of the WA zone is to conserve important wildlife areas 8 See pages 22-24 of the Community Development Department's Staff Report. 15 and to permit development compatible with the protection of wildlife areas.9 DCC Chapter 18.88 of the County Zoning Code contains specific standards for the WA Zone. Specifically, DCC 18.88.040 (B) states: "The following uses are not permitted in that portion of the WA Zone designated as deer winter ranges, significant elk habitat or antelope range: (1) Golf course, not included in a destination resort; (2) Commercial dog kennel; (3) Church; (4) Public or private school; (5) Bed and breakfast inn; (6) Dude ranch; etc." However, DCC 18.16.025 permits churches outright, as opposed to conditionally, in the EFU. According to the CDD Staff Report, "Staff believes that a prohibition on church use in WA zones is specific to those zones in which church use is a conditional use." If the County chooses to enforce DCC 18.88 strictly, and prohibit churches from establishing in the Metolius Winter Deer Range despite their status as an outright use in the EFU, RLUIPA's equal terms provision may compel the County to permit the establishment of the church. In order to be successful in an equal terms claim, (1) there must be an imposition or implementation of a land -use regulation, (2) by a government, (3) on a religious assembly institution, and (4) the imposition must be on less than equal terms with a nonreligious assembly or institution. Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163 (9`h Cir. 9 Land development is increasingly infringing on mule deer habitat and blocking passage between the deer's summer and winter ranges. By 2000, development was already present in many locations within mule deer winter range, some of it at sufficiently high densities to influence winter use and migratory patterns. The problem is not so much that development is spreading out across the wide area of the deer's winter range, he notes, but that it tends to locate in "key choke points." It affects the deer's ability to move freely among the lower elevation areas where they are accustomed to wintering. In some locations, development coincides with narrow sections of winter range with the potential to disrupt movement of individuals throughout the range. 101 2011); Muslim Cmty. Ass'n of Ann Arbor & Vicinity v. Pittsfield Charter Twp., 947 F. Supp. 2d 752, 766 (E.D. Mich. 2013) (quoting Primera Inglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cmy., 450 F.3d 1295, 1307 (11th Cir. 2006)). The plaintiff bears the initial burden of "produc[ing] prima facie evidence to support a[n equal terms] claim." 42 U.S.C. § 2000cc-2(b). After doing so, "the government ... bear[s] the burden of persuasion on any element of the claim." Id.Id. The first and second elements of an Equal Terms claim are not at issue: the Church is clearly a religious assembly subject to the County land use regulation. Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163 (91" Cir. 2011). Thus, the only question remaining is whether the County land use regulation facially treats AICC on less than equal terms as compared to a nonreligious assembly or institution. Id. In Young v. Jackson County, LUBA No, 2008-076, LUBA upheld a church's equal terms challenge to a county's zoning ordinance. Similar to the instant case, the subject property in Young was a parcel zoned exclusive farm use, and was not considered high-value farmland. In 2002, a dwelling was constructed that petitioners used as their primary residence, and also a religious retreat with extended overnight stays and other religious uses. In 2003, petitioners applied for county approval to use the dwelling as a church or religious retreat center with overnight accommodations. A county hearings officer denied the application based on OAR 660- 033-0130(2), which prohibits churches within three miles of an urban growth boundary.10 10 An urban growth boundary, or UGB is a regional boundary, set in an attempt to control urban sprawl by mandating that the area inside the boundary be used for higher density urban development than the area outside be used for lower density development. 17 Similarly, Petitioners contended that for OAR 660-033-0130 allow certain uses within three miles of a UBG, such as parks, playgrounds, and golf courses, but not religious uses, such as churches, violates the equal terms provision of RLUIPA. In Young, the Petitioners first argued that like churches, the uses permitted within three miles of the UBG served social and recreational functions as to qualify them as secular "assemblies and institutions" for purposes of RLIUPA. Significantly, in the instant case, across the street and immediately to the north of the subject property is an approximately 540 -acre property engaged in cattle grazing and a developed guest ranch, Long Hollow Ranch. On its website, Long Hollow Ranch describes itself as a dude ranch and bed and breakfast. Importantly, dude ranches and bed and breakfasts are two prohibited uses in the Metolius Deer Winter Range. Nevertheless, the property exists without interference from the County. Further, Long Hollow Ranch advertises itself as a wedding venue, hosting more than 200 people. Long Hollow is both a dude ranch and a B and B, both of which are prohibited in a WA Zone. Also, within the past six months, a permit was granted to a parcel immediately to the north, Rain Shadow Organics, to open a food processing plant, a farm stand and to allow commercial dinners. These commercial dinners are called "Long Table Dinners". See http://www.rainshadoworganics.com/ http://www.rainshadoworganics.com/community/longtable-dinners/ While these operations are not a prohibited activity, it is a commercial use recently allowed within a WA Zone. Therefore, Shepherdsfield Church should be allowed too. And while there may be functional differences between a dude ranch/bed and breakfast and a church, RLUIPA requires us to analyze whether the imposition of the land use regulation on a religious assembly is on less than equal terms with a nonreligious assembly or institution. 18 Landwatch asserts that the purpose of the WA zone is to conserve important wildlife areas and to permit development compatible with the protection of wildlife areas. DCC Chapter 18.88 serves this interest by limiting the types of activity in the WA zone. Similarly, in Young, LUBA addressed the UGB restrictions interest in preserving agricultural land: We assume for purposes of analysis that the state has a compelling interest in preserving agricultural land and the integrity of urban growth boundaries. However, it does not follow that there is a compelling state interest in restricting the location of religious assemblies on agricultural lands within three miles of a UBG, while not similarly restricting comparable non -religious assemblies that, on their face, appear to impact the same state interest to no less degree. In that the restrictions voluntarily placed upon Shepherdsfield Church in their application of no more than 25 persons meeting once per week and only allowing wedding and church associated events in the summer months (mid-May to early Oct) when the large game have left the area for the mountains, the church permit is a use compatible with wildlife protection in the area. Both the County and Oregon Dept of Fish and Wildlife previously approved Shepherd's Private Park permit within the Metolius Winter Range. Remember, this is "Winter Range", meaning that the deer are only present during the winter, at which time there are no events requested or permitted under the terms of this application. In sum, the third objection of Landwatch fails. Objection Four: The fourth and final objection posed by Landwatch is that, according to Oregon Court of Appeals in Timberline Baptist Church v. Washington County, RLUIPA protection only applies when "a land use regulation would require a religious entity to forgo its religious precepts because it could not reasonably locate and acquire an alternative site for it proposed combines uses." 19 Shepherdsfield Church is, by design, a House Church, patterned after the original house churches in the New Testament. 19 The churches here in Asia send you their loving greetings. Aquila and Priscilla send you their love, and so do all the others who meet in their home for their church service. I Corinthians 16:19 Tell Priscilla and Aquila hello... SPlease give my greetings to all those who meet to worship in their home. Romans 16:3-5 They broke bread in their homes and ate together with glad and sincere hearts. Acts 2:46 For the sake of intimacy, authenticity and familiarity, the church is deliberately set in the pastor's house and the size of the congregation is kept small. It would not be "reasonable" to expect Pastor Shepherd to purchase a house in a different area and move just so he could host a congregation in his house. Nor would it be reasonable to expect Pastor Shepherd to move his church into a "non residential" setting such as an office or store front, in that this would effectively alter the essential elements of a House Church. Furthermore, in that a ministry of hosting affordable weddings, officiating and ministering to the couples are part of the church's 501 c 3 declared and approved mission statement, the location of the house church on their existing large acreage is essential to their ministry. It is not "reasonable" to expect them to "relocate and acquire an alternative site for the church's combined uses." This cost of acquiring and preparing additional acreage and facilities would be financially and logistically impossible. Therefore, our situation is well within the RLUIPA protections afforded to Religious Land Use. Religious organizations have historically been subjected to unequal enforcement of land use regulations when compared to their non -religious counterparts. Congress unanimously passed RLUIPA to level the playing field between secular and non -secular assembly uses. In enacting RLUIPA, Congress addressed the Supreme Court's decision in Employment Division v. PH Smith, 494 U.S. 872 (1990), where the Court rejected prior First Amendment jurisprudence and concluded state and local laws, including land use decisions, that are subject to First Amendment Free Exercise challenges should be evaluated under general neutral principles of law. RLUIPA re-establishes strict scrutiny analysis for land use cases. The Supreme Court recently affirmed the same in Burwell v. Hobby Lobby Stores, Inc.: Following our decision in City of Boerne, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S.C. §2000cc et seg. That statute, enacted under Congress's Commerce and Spending Clause powers, imposes the same general test as RFRA but on a more limited category of governmental actions. See Cutter v. Wilkinson, 544 U.S. 709, 715-716, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005). And, what is most relevant for present purposes, RLUIPA amended RFRA's definition of the "exercise of religion." See §2000bb-2(4) (importing RLUIPA definition). Before RLUIPA, RFRA's definition made reference to the First Amendment. See §2000bb- 2(4) (1994 ed.) (defining "exercise of religion" as "the exercise of religion under the First Amendment"). In RLUIPA, in an obviouseffort to effect a complete separation from First Amendment case law, Congress deleted the reference to the First Amendment and defined the "exercise of religion " to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief. " §2000cc-5(7)(A). And Congress mandated that this concept "be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution." §2000cc-3(g). Id. at 20-21 (Alito, J.) (emphasis added). In their joint statement to the Senate, RLUIPA's co-sponsors Senators Orrin Hatch and Edward Kennedy observed that: The right to assemble for worship is at the very core of the free exercise of religion. Churches and synagogues cannot function without a physical space adequate to their needs and consistent with their theological requirements. The right to build, buy, or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes. 146 Cong. Ree. 57,774-01 (daily ed. July 27, 2000). The Senators also recognized that religious organizations "are frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation." Id. (emphasis added). 21 Stated another way, RLUIPA is necessary because land use regulation poses a severe threat to religious liberty when states delegate authority "to nonprofessionals operating without procedural safeguards." Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 900 (7th Cir. 2005) (citation omitted). When land use regulations "permit churches only with individualized permission from the zoning board," local governments are able to "use that authority in discriminatory ways." 146 Cong. Rec. 57,774-01. This problem is made more difficult since such discrimination is often challenging to prove: [s]ometimes, zoning board members or neighborhood residents explicitly offer race or religion as the reason to exclude a proposed church... . More often, discrimination lurks behind such vague and universally applicable reasons as traffic, aesthetics, or `not consistent with the city's land use plan.' Id. (emphasis added). These issues are even more problematic for "new, small, or unfamiliar" houses of worship, like house churches, which are "frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation." 146 Cong. Rec. 57,774-01. RLUIPA has two separate provisions limiting government regulation of land use. Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163 (9t" Cir. 2011). One prohibits governments from implementing land use regulations that impose "a substantial burden" on religious exercise unless the government demonstrates that they further a "compelling governmental interest" by the "least restrictive means." Id. The second RLUIPA land use provision prohibits a government from imposing a land use restriction on a religious assembly "on less than equal terms" with a nonreligious assembly. Id. The statutory text of the equal terms provision states: "No government shall impose or implement a land use regulation in a manner 22 that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." Id. The equal terms analysis is set forth above in response to Objection 3. With respect to the response to Objection 4, the Petitions herein assert that the failure to allow for house churches falls within the "substantial burden" prong of RLUIPA, which provides that a government cannot enforce a land use regulation in a way that substantially burdens a religious entity. 42 U.S.C. § 2000cc(a)(1). But if a governmental entity can prove its regulation furthers a compelling interest and is the least restrictive means of furthering that interest, the regulation will be permitted. 42 U.S.C. § 2000cc(a)(1)(A)-(B). In analyzing the Church's substantial burden claim, three considerations must be addressed: (1) whether the City made an individualized assessment of the Church's proposed use of the property; (2) whether the Church has prima facie established that the City has imposed a substantial burden on its religious exercise; and (3) after the Church's makes its prima facie showing, whether the City can justify its imposing a substantial burden by demonstrating a compelling interest achieved by the least restrictive means. International Church of the Foursquare Gospel v. City of San Leandro, 634 F.3d 1037 (9th Cir. 2011.) There is no question that requiring the Church to go through the application process and having its application scrutinized as to the use of the land is an individualized assessment. The issue in this case is whether a decision to preclude house churches in the state of Oregon, and precluding people from worshipping together on a daily or weekly basis, is a substantial burden to the religious exercise of the members of the Church. The answer is yes. Congress did not define the term "substantial burden," instead leaving it to the Courts to formulate a definition. Court's have defined a "substantial burden" as a decision by a 23 municipality that "place[s] more than an inconvenience on religious exercise ... [it] is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly. Thus, a substantial burden can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct." International Church of the Foursquare Gospel v. City of San Leandro, 634 F.3d 1037 (9th Cir. 2011.) The determination of whether a "substantial burden" exist primarily rest on the definition of that term as applied to the facts of the case. Id. There must be a close nexus between the coerced or impeded conduct and the institution's religious exercise for such conduct to be a substantial burden on that religious exercise. Williams Island Synagogue, Inc. v. City of Aventura, 329 F. Supp. 2d 1319, 1325-26 (S.D. Fla. 2004).11 Here, the Church maintains that a substantial burden will occur if it has the inability to use the Property for religious worship. The case law provides that the implementation of a land use regulation that completely bars the use of the property for religious exercise constitutes a substantial burden as a matter of law. The implementation of a land use regulation that completely bars the use of the property for religious exercise may constitute a substantial burden. See DiLaura v. Twp. of Ann Arbor, 112 F. App'x 445, 446 (6th Cir. 2004) (finding that "designation as a bed and breakfast would have effectively barred the plaintiffs from using the property in the exercise of their religion and, hence, the defendants' refusal to allow a variance constituted a substantial burden on that exercise."); Lighthouse Community Church of God, 2007 U.S. Dist. LEXIS 28, 2007 WL 30280, at *7-9 (denying city's motion for summary judgment and holding that plaintiff established a prima facie case under RLUIPA where the city's denial of the church's application for certificate of occupancy was based on a lack of adequate parking, thereby totally precluding the church from using the building for religious worship purposes); Reaching Hearts Int'l., Inc. v. Prince " Once the Church establishes its prima facie "substantial burden" case, the burden then shifts to the City to justify the burden imposed by demonstrating a compelling interest achieved by the least restrictive means. Church of Scientology of Ga., Inc. v. City of Sandy Springs, 843 F. Supp. 2d 1328, 1350 (N.D. Ga. 2012). PZA! George's County, 584 F. Supp. 2d 766, 785-87 (D. Md. 2008), aff d 368 F. App'x 370 (denying county's motion for judgment as a matter of law following jury trial and finding that sufficient evidence supported the jury's finding that county's actions restricting religious congregation's ability to build church on only 0.7 acres out of its 17 -acre parcel imposed a substantial burden on the congregation's religious exercise in violation of RLUIPA); Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203, 1226 (C.D. Cal. 2002) ("Preventing a church from building a worship site fundamentally inhibits its ability to practice its religion. Churches are central to the religious exercise of most religions. If Cottonwood could not build a church, it could not exist."). 843 F. Supp. 2d at 1354-55. The above quote from the Sandy Springs decision is consistent with RLUIPA, as Congress defined "religious exercise" 12 to "include any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7)(A) (emphasis added); Midrash, 366 F.3d at 1225. There is no genuine issue of material fact a denial of the Church's use of land for religious assembly will result in a substantial burden. The Ninth Circuit adopted this standard in a highly influential decision interpreting RLUIPA's substantial burden provision. In International Church of the Foursquare Gospel v. City of San Leandro, 634 F. 3d 1037 (9th Cir., 2011), the court reversed a district court decision granting summary judgment on the church's RLUIPA claims in favor of San Leandro, California. Id at 1038-39. The church alleged that the city violated its rights when it denied a rezoning application and conditional use permit for new facilities the church intended to build on industrial land. Id. The church experienced a large increase in membership and needed a larger facility to house the expanded congregation. It found a site in an area set aside in the city's general plan for industrial activity. Id. The church signed a purchase and sale agreement for the 12 Congress also provided "[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose." 42 U.S.C. § 2000cc-5(7)(B). 25 property and was later informed by the city that religious assembly use was not allowed on the property. However, the city did allow "entertainment activities" and "commercial recreation" in industrial zones. Id. The city's planning staff advised the church to apply for various amendments to the zoning code, which the church did. However, the planning staff then withdrew its support for a rezoning based on concerns about the conflict between industrial and assembly uses. Id. The planning staff created two options that would allow the church to expand its assembly use to a nonresidential district, one of which needed to be adopted by the city council. The church requested that the council make the decision quickly, since the property had been in escrow and the church needed to promptly complete its purchase. Id. at 1040 The city had not made a decision by the time the church was required to complete its purchase, so the church paid $50,000 to extend the purchase agreement by two months. Id. The church closed escrow two days before its two-month extension expired because the seller refused to provide any more extensions and the city had still not made a decision. Id. Approximately three months after the church closed on the property, the council approved one of the options the city's planning staff had proposed, which created an Assembly Use Overlay District that allowed assemblies in nonresidential areas. However, the council also decided that the church's property should not be included in this new zone. Id. at 1042 In response to this decision, the church filed an amendment to try to change the property's zoning to fit within the newly created district. The planning commission denied the church's application on the planning staff's recommendation. The church then appealed the planning commission's decision to the city council, which unanimously denied the appeal. The church had also filed an application for a conditional use permit, which the city determined was incomplete. When the m church submitted a complete application, the planning commission denied it, and the council denied it again on appeal. Id. The issue before the Ninth Circuit was whether the city's conduct imposed a substantial burden on the church. Id. at 1046 The court noted that a substantial burden must put more than a simple inconvenience on a church's religious exercise. Instead, for the Ninth Circuit, a substantial burden is one that puts substantial pressure on an adherent to "modify his behavior and to violate his beliefs." Id. Applying that definition to the facts of the case, the Ninth Circuit found that the City of San Leandro had substantially burdened the church's religious exercise. Particularly, the Ninth Circuit determined that the district court erred by dismissing the testimony of the church's realtor, who had indicated that there were no other suitable sites within the city that could hold the church's growing congregation and operations. To the court, this was "more than a mere scintilla of evidence" that the church's religious exercise had been burdened. Id. Additionally, noting an opinion from the Second Circuit Court of Appeals, the court held that the rejection of a church's permit or rezoning application could constitute a substantial burden if the religious institution was left with "no ready alternatives," or alternatives that create "substantial" delay, uncertainty, and expense Id. Thus, the court reversed the award of summary judgment to the city. The court also made two interesting points with respect to substantial burden analysis. First, the Ninth Circuit rejected the Seventh Circuit's heightened standard that religious exercise must be "effectively impracticable" in order to constitute a substantial burden under RLUIPA and instead adopted a lesser burden. Id. at 1046. Additionally, the court determined that the district court incorrectly rejected the church's argument that its "unique core beliefs" required it to meet in one centralized location to worship together, citing the Supreme Court's reasoning 27 that "courts should not inquire into the truth or falsity of stated religious beliefs." The case was remanded to the district court, and eventually the parties settled out of court with a favorable result to the church. Once the Church alleges a prima facie substantial burden claim, the burden shifts to the City to show its actions further a compelling interest and are the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-1(a). Compelling state interests are "interests of the highest order." Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993). When RLUIPA speaks of a government needing a compelling reason to burden a religious land use, it means only the most serious of reasons, such as a danger to life, safety, and/or health. See Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."); Sherbert v. Verner, 374 U.S. 398, 406 (1963). ("[O]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation."). The government must also specifically identify the harm it is seeking to avoid. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 432 (2006) ("Under the more focused inquiry required by RFRA and the compelling interest test, the Government's mere invocation of the general characteristics [of harm] cannot carry the day[.]"). Case law is clear that traffic congestion concerns and parking issues are not compelling interests. See Mintz v. Roman Catholic Bishop, 424 F. Supp. 2d 309 (D. Mass. 2006); Lighthouse Cmty. Church of God v. City of Southfield, 2007 U.S. Dist. LEXIS 28 (E.D. Mich. Jan. 3, 2007). Preserving property values is also not a compelling governmental interest. Westchester Day Sch. v. Vill. of Mamaroneck, 417 F. Supp. 2d 477, 553 (S.D.N.Y. 2006). Aesthetic impacts are not compelling governmental interests. Cottonwood, 218 F. Supp. 2d at 1228. Intrinsically vague 28 standards, like preserving the harmony of the neighborhood, ensuring consistent implementation of regulations and preserving property values, are not compelling governmental interests. Cambodian Buddhist Soc y of Ct., Inc. v. Newtown Planning & Zoning Comm'n, 2005 Conn. Super. LEXIS 3158, 42-44 (Conn. Super. Ct. Nov. 18, 2005). General interests in enacting and enforcing a comprehensive plan is not a compelling governmental interest. Westchester Day Sch. v. Vill. of Mamaroneck, 504 F. 3d 338, 353 (2d. Cir. 2007). Revenue generation is also not a compelling governmental interest. Cottonwood, 218 F. Supp 2d at 1228. Any interests that Landwatch asserts in this matter are abstract and cannot be deemed "the gravest abuses, endangering paramount interests" to qualify as "compelling" to justify restricting the Church's religious exercise. Sherbert, 374 U.S. at 406. Likewise, any argument asserted by Landwatch suggesting that denying the permit amounts to the least restrictive means when achieving its interests must be rejected. Sandy Springs, 843 F. Supp. 2d at 1350. The government must show its interests could not be achieved by narrower state action that burdens the plaintiff to a lesser degree. Elsinore Chr. Ctr. v. City of Lake Elsinore, 270 F. Supp. 2d 1163, 1174-75 (C.D. Cal. 2003) (City failed to show denial of a CUP to a Church was least restrictive means of advancing its interest in retaining grocery store and jobs in economically deprived area). The least restrictive means requirement cannot be met where the result is a total ban on religious activity, such as the case here. Murphy v. Town of Milford, 148 F. Supp. 2d 173, 190 (D. Conn. 2001) vacated on procedural grounds, 402 F. 3d 342 (2d Cir. 2005) (requiring plaintiffs to cease holding regular prayer meetings for 25-40 people in their home was not least restrictive means of dealing with traffic and parking issues); Cottonwood, 218 F. Supp. at 1229 (City's zoning and eminent domain actions were not least restrictive means of eliminating blight 29 or generating revenue since allowing construction of church on site would eliminate blight and City had numerous ways of generating revenue without preventing tax-free religious land uses.) To satisfy RLUIPA's "least restrictive means" requirement, courts require institutions to show alternative means of satisfying the compelling government interest were considered and found insufficient. Courts to strike down institutional regulations have used evidence that similarly situated institutions achieve the same end through a less restrictive regulation. Berger v. City of Seattle, 569 F.3d 1029, 2009 U.S. App. LEXIS 13609 (9th Cir. Wash. 2009) Even if the concerns expressed by the Planning Commission and Hopson Road residents were "compelling," the City has many less restrictive ways to address the interests other than completely barring the Church from using the Property for religious exercise. Under strict scrutiny, if a less restrictive alternative is available, "the [government] must use that alternative." U.S. v. Playboy Ent. Group, 529 U.S. 803, 813 (2000) (emphasis added). Finally, Landwatch argues the Church is subject to the same marketplace as commercial assembly uses, and the lack of land and failure to identify other properties is not a substantial burden. This is incorrect. The Second Circuit was the first court to set forth an explicit "no ready alternatives" RLUIPA review standard in a land use context. The 2007 case addressed whether a municipality's decision to deny a Jewish school's application for a variance based on political pressure from a small group of residents—in light of the municipality's unsubstantiated evidence for the denial—constituted a substantial burden. In Westchester Day School v. Village of Mamaroneck, 504 F 3d 338 Westchester Day School, a private Jewish school located in the Village of Mamaroneck, sought to renovate and expand its existing campus. The school was situated in a district that allowed private schools as long as the zoning board granted a special permit. Numerous other private schools operated within the zone. ti In 1998, the school believed its current facilities were inadequately small and decided to construct a new building to meet its needs. Id. In October 2001, the school applied for a special permit to build the new structure, and the zoning board unanimously allowed consideration of the permit to continue. A group of influential Mamaroneck citizens, however, opposed the project, and the board rescinded the declaration. The school eventually sued in federal court. After a prolonged battle in district court, the court found that the village violated RLUIPA's substantial burden provision and ordered the village to issue the school's special permit immediately. The Second Circuit Court of Appeals agreed with the district court that the village had violated RLUIPA. The court, after extensive analysis of U.S. Supreme Court precedent, concluded that the failure to approve the special permit application substantially burdened the school's religious exercise. Id. at 352.The court evaluated whether there were quick, reliable, and financially feasible alternatives for the school and whether the denial was conditional. Id. "These two considerations matter for the same reason," the court asserted, because "when an institution has a ready alternative—be it an entirely different plan to meet the same needs or the opportunity to try again in line with a zoning board's recommendations—its religious exercise has not been substantially burdened." Id. In this case, "the school could not have met its needs simply by reallocating space within its existing buildings" or by moving elsewhere, and the village declined to grant conditions when it could have. Id. Thus, the lack of alternatives meant that the arbitrary and unlawful denial of the permit constituted a substantial burden. Id. at 353 The Second Circuit also found no compelling government interest; instead, it found that the permit was denied because of undue deference given to the small group of neighbors who 31 opposed the application. Id. The case settled on remand for $4,500,000 in damages and $900,000 in attorney's fees and costs. Clearly, the objection made by Landwatch based on an assumption that the Church has been analyzed in similar cases and must be rejected. Conclusion In light of Deschutes County's declaration (see submitted email from County Counsel John Laherty) that non -family gatherings are only allowed four times per year, to deny Shepherdsfield Church RLUIPA protection and to deny their permit application would, in the face of the County's official code enforcement complaint, prohibit any and all house churches from meeting under similar circumstances. This would create an unheard of precedent, which would essentially outlaw house churches in rural areas of the State of Oregon. We urge you to allow the amendment to the County Code. 32 October 6, 2017 Via Email Deschutes County Community Development Department P.O. Box 6005 117 NW Lafayette Avenue Bend, OR 97703 www.centraloregonlandwatch.org Re: Wildlife Area Combining Zone Comprehensive Plan and Text Amendments File Nos. 247 -17 -000702 -TA, -000703-PA Dear Chair Swisher and Commissioners: Below please find additional comments regarding protection of the County's winter range. 1. Suggested text amendment As we explained in our testimony and earlier comments, we don't believe that the threat of a lawsuit under RLUIPA based on the current code language is a real risk. But if the County still feels that there is a risk, the County can comply with the "less than equal terms" provision of RLUIPA and still protect winter range by expressly forbidding organizations that are similarly situated to churches. This approach is protective of winter range and maintains the status quo while complying with RLUIPA. Petra Presbyterian Church v. Vill. of Northbrook, 489 F3d 846, 849 (7th Cir. 2007); Gen. Auto Serv. Station v. City of Chicago, 526 F3d 991, 1005 (7th Cir. 2008): "Northbrook could redo its ordinance to comply with the 'less than equal terms' provision of RLUIPA in one of two ways: by permitting religious organizations in the industrial zone, or by forbidding all membership organizations in the zone." The County could successfully amend its comprehensive plan and code section DCC 18.88.040 by simply adding the below phrase: 1. Golf course not included in a destination resort; 2. Commercial dog kennel; 3. Church or assembly, institution, or membership organization similarly situated to a church; 2 4. Public or private school; 5. Bed and breakfast inn; 6. Dude ranch; 7. Playground, recreation facility or community center owned and operated by a government agency or a nonprofit community organization; 8. Timeshare unit; 9. Veterinary clinic; 10. Fishing lodge. Amending the plan and code in this way will achieve the objective of ensuring the County's plan and code comply with RLUIPA, while also complying with Goal 5 and the County's Wildlife Area (WA) combining zone. The County's WA zone is intended to implement Goal 5. The County has a choice between the amendment proposed in the staff report which allows churches and is inconsistent with Goal 5, and the above amendment, which achieves the objective of compliance with RLUIPA but is consistent with Goal 5. The Goals apply directly to comprehensive plan amendments. ORS 197.175(2)(a); 1000 Friends of Oregon v. Jackson County, 79 Or App 93, 97, 718 P2d 753 (1986). The County may not choose an amendment that is inconsistent with Goal 5 when an amendment is available that achieves the amendment's stated purpose and is consistent with Goal 5. See White v. Lane County, 68 Or LUBA 423, 434 (2013); Friends of Neabeck Hill v. City of Philomath, 139 Or App 39, 50 n7, 911 P2d 350 (1996). 2. Goal 2 direction As I testified at the hearing, we are also concerned with the policy implications of the proposed amendments. The party who is threatening to sue the County bought his land in the wildlife overlay zone when there had been a long-standing rule prohibiting churches. There is a lot of rural land where churches are allowed and this party could have bought land there. We do not believe it is appropriate to make plan and code amendments in this situation or to do so in the face of a threat of the lawsuit. Statewide Planning Goal 2 also advises against adopting comprehensive plans in situations that are applicable here: "The plan and implementation measures should be revised when public needs and desires change and when development occurs at a different rate than contemplated by the plan....[M]ajor revisions should not be made more frequently than every two years, if at all possible.... The public need and justification for the particular change should be established. Minor changes should not be made more frequently than once a year, if at all possible." In addition to there being no policy or practical reason for this change, and because there has not been an adequate ESEE analysis to justify it, the County should not proceed with its plan and text amendments. Thank you for your consideration. Very truly yours, VA-a<"� Paul Dewey, Executive Director Central Oregon LandWatch From: Joey Drucker To: Peter Gutowskv Subject: Don"t weaken wildlife protections Date: Thursday, October 5, 2017 9:15:52 AM I oppose the County's proposal to allow churches in the deer winter range because... • Our deer population, is &vindllr,ng. It is more, Important than. ever to protect habitat from: the disruption and degradation associated with additional. development. • beer are as much a Dart cif Central Oregon as the'rhree Sisters and the Deschutes River:,, Critical habitat should not be lost to further development. • Allowing churches in t.lr.e winter range sets a dangerous precedent for our ,vildli.fe. > f clrulr ches are allowed, other types of assemblies thait are currendy, prohibited smells as golf courses, schools, public res centers, a.rrid others can, argue that they should be allow ed hii tlt,e vdnterr range or other critical`, habitat, too. This would quickly erode wildlife habitat protections. • 1« ule deer are protected by IfLand Use Ptan:ning Goad 5. Making an exception to this goal can lead to other Coal 5-protccted resources.,, such as wetlands and riparian areas.,. being compromised. • «rldlife-retated activities are an, irinpoz tant }art of Deschtaf ,s Comity's economy. We don't need to expedite the loss of habitat, and this revenue, by allowing conam.ercial event venues irx the winter rank. • I am a Bunter. When degradation of critical deer habitat causes displacement and populations decline,, my right to, recrearte rlrrrra:r.ged upo:r.o • Even though the proposed events are to take place in the sumnoer; deer and other wildlife. migrate through and reside in the space year-round. It snares no difference to a mule deer whether fits lsrabitat is degraded. in, he � iailer or summer monthsr 1; "Dere is plenty of space in the county for a wedding venue or church to operate. Deer winter range only accounts for a small fraction of Deschutes County land and is considered. critical habitat. C:lharrclr.es can. be irfiioved, the ��ir,ter range: cannot. • It is unacceptable for the count)/ to amend its wildlife code to accommodate the for- profit ventures of individuals. County codes and wildlife protections are a service to the public. Thais proposed code ahneradnaent does a disservice to the prkbl,ic: aiad our Yaaftaral resources for tJ~,,e lierrefilt of a for-profit event venure< • Mule deer are part of the Central Oregon way of life, The cou.a7,.ty should stand up to defend Its protecti u of critical habitat, From: Eva Eaole To: Peter Gutowskv Subject: Wildlife Overlay Zones Date: Thursday, October 5, 2017 8:51:55 AM I have been out of town and was unable to attend the meeting about this topic. I do, however, hold a strong view that we should not be allowing more uses in the wildlife overlay zone. I have lived in the overlay zone for 15 years and I have witnessed a decline in deer populations during that time period. It is getting more and more difficult for the migrating deer to make their travels through the many activities and buildings that are in the zone now as compared to a decade ago. We need fewer uses here, not more. Goal 5 puts a strong value on protecting wildlife habitat. It is a bad precedent to make an exception for churches. I know it is difficult to feel as if we are standing in the way of religion, but the current rules need to be maintained. Churches do not need to locate themselves in sensitive habitats. In fact, these are not convenient to anybody who might actually attend the church and are only selected in order to make money off of weddings and other events. As a home owner in the overlay zone on nearly 40 acres, I am prohibited from doing many things that I might like to do. It costs me extra to build a fence. I am prohibited from building a guest house. I am happy to abide by these restrictions for the sake of the wildlife. I will be quite upset if the County allows uses in the overlay zone that bring worse environmental degradation. Thank you for giving me the opportunity to voice my views on this. Eva From: Alice Elshoff To: Peter Gutowsky Subject: Don"t weaken wildlife protection Date: Wednesday, October 4, 2017 1:23:01 PM Our growing cities are infringing on Deer habitat at such an alarming rate. This is No time to weaken habitat protection in the Metolius Deer Winter Range. Mule deer are protected by LAND USE PLANNING GOAL 5. Making exceptions to this goal would be a very bad idea. Just don't do it! Respectfully, Alice Elshoff From: Larry Fiu To: Peter Gutowskv Subject: Not amending the Deschutes Cty wildlife code Date: Thursday, October 5, 2017 7:51:43 PM Mr. Gutowsky, My name is Larry Fizz from Pottstown, Pennsylvania. I recently learned that the County is considering amending the wildlife code to allow churches to operate a for-profit wedding venue. Please reconsider this action, as deer winter range is considered critical habitat and accounts for only a small fraction of Deschutes County land. Churches can be moved, the winter range cannot. I am not a resident of central Oregon, but I lived there for a year when my employer stationed me in Bend for a work assignment. Land development is underway in many areas of the county, and your decision to proceed with this amendment is in line with other decisions that would permanently alter the environment by us humans at the expense of the wildlife population. Losing what you have in Oregon is not the way to realize exactly what you did have. Thank you for listening. Respectfully, Larry Fizz Pottstown, Pennsylvania Attachment B From: Cheryl Furry To: Peter Gutowskv Subject: Article in Bulletin Date: Friday, September 15, 2017 3:54:42 PM Mr Gutowsky, I read the article "No church in the wild". I am requesting that no religious building be built on government land or any building be used for religious purposes. Many people here, along with myself believe in separation of church and state. We are strongly asking that anything religious be kept out of our government. Thank you Cheryl Furry Sent from my iPad From: N n i To: Peter Gutowskv Subject: testimony: no weddings in Deer Winter Range in Deschutes County Date: Friday, October 6, 2017 11:35:25 AM Hi Peter Please enter this email into the public testimony record regarding the County's ridiculous consideration to allow weddings in Winter Deer Range in Deschutes County. Wildlife is a most special draw to our community. Fragmenting deer range places our wildlife population at greater risk. Over the last 2 decades, our community has experienced devastating wildfires in the high country and the recent Milli Creek Fire is no exception. It takes a long time for grass and forage for deer to rejuvenate after a fire and so wildlife were just stressed again by fire this past summer. I don't feel that allowing weddings which draw large, lighted, and noisy crowds is appropriate at all or compatible in the Wildlife Overlay Zone. What is it about CDD that thinks that one off legislation is appropriate for our community? It is the burden of proof of an applicant to show their proposal won't have an adverse impact. Simply running to amend our code or threatening risk assessment to our BOCC (possibility of suit) should not suffice to do a text amendment in the wildlife zone. I am opposed to allowing weddings in our very special Winter Deer Range in Deschutes County. Just say NO. Thank you Nunzie Gould From: N nzi To: Peter Gutowskv Cc: Brett Hodgson Subject: public testimony: no to weddings in the Winter Range in Deschutes County Date: Friday, October 6, 2017 12:25:14 PM Hi Peter Please enter this email into the public testimony OPPOSED to allowing weddings in the Winter Range in Deschtues County. I draw your attention to how ODFW phrases the purpose of Winter Range Closures as of 6/2017: "Objectives of Closure Protect wintering deer and other wildlife from harassment and to protect wildlife habitat by controlling vehicle use, thereby: 1. Increasing deer survival during the winter 2. Improving the physical condition and productivity of deer. 3. Protecting and improving wildlife habitat Allowing vehicles to enter a property located in the winter range en mass for weddings during non -closure times of Winter Range also stresses Wildlife whether in summer, during calving or as the deer move thru the range. Vehicles and people stress Wildlife. We the people are Wildlife's invaders. We with our movement, vehicles, noise, lights and mere presence. It is important not to start a dumb precedent in Deschutes County. Do not allow weddings at churches in the winter range in Deschutes County. Thank you Nunzie Gould From: Marilyn To: Peter Gutowskv Subject: Wildlife Habitat Concern Date: Friday, October 6, 2017 2:52:26 PM October 6, 2017 RE: Metolius Deer Wintering Range We live within the zoned Wildlife Wintering range off Johnson Road. I am writing in regards to my concern for our wonderful Wildlife Habitat in the Metolius Deer wintering range, which is at risk if Deschutes County amends the wildlife code. It is my understanding Deschutes County is reviewing the code and is considering amending the wildlife code so that a not-for-profit commercial event venue can legally operate in a sensitive wildlife area. Which I believe, if passed will open it up to other groups — like golf courses, and other recreational pursuits. If the Wildlife Code is amended to include groups to operate within its boundaries it will cause a great impact on our wildlife range. We have lived here almost 40 years and thru the years have enjoyed all the wildlife this designation was created for, including Elk — a herd of 60 or more, deer all year long, geese, ducks, squirrels, all kinds of birds. They are here year around —not just the winter. So proposing it just for certain months is not conducive to keeping our wildlife in this safe designated area whenever they want to visit. The wildlife habitat in this area is phenomenal and those of us who have lived here and enjoyed it in the past would like to do so in the future. And yes, if it is amended we will no longer enjoy the wildlife habitat as we have it now. The noise of whatever is happening will scare them away eventually. There is so little area in Deschutes County that the wildlife can feel safe. This Metolius Unit happens to be one of them. Let's not deter in any way the safety our wildlife friends have enjoyed and those of us in this rural community have enjoyed. I am against weakening wildlife habitat protections in the Metolius Deer Winter Range for any purpose. I respectfully ask you consider not passing any ruling that would take away the designation or alter it in any way that would allow any kind of commerce, or groups of people for any reason. I have included a slide show of just some of the wildlife we have been enjoying out our back yard. The elk and deer are relaxing in our field and in our yard as are the geese in our pond. As you can see it is not the winter months. Thank you for your consideration in this matter. Respectfully, Marilyn Hamper 63460 Palla Ln Bend OR 97703 s� ,.. �� ' �� . ��' From: kris To: Peter Gutowskv Subject: Fw: Metolius Deer Winter Range Date: Thursday, October 5, 2017 12:12:06 PM From: kris <kriskenbend@msn.com> Sent: Thursday, October 5, 2017 12:01 PM Subject: Metolius Deer Winter Range We oppose any changes to the County Code allowing uses that are clearly stated as NOT allowed in the Deer Winter Range. These codes were written for a reason and now more than ever they need to be strengthened, not weakened. Deer are losing habitat every day in Deschutes County and their migration is more dangerous than ever. The increasing population houses, cars, and people coming here that do not understand the needs of wildlife. Can we stop the greed and seriously protect the natural resources that exist here? Kris Jewett & Ken Graham PO Box 1042 Bend, OR 97709 Attachment A From: linings Jon To: Peter Gutowskv Subject: Local File 247-17-000702-TA/247-17-000703-PA Date: Wednesday, September 13, 2017 4:47:05 PM Good Afternoon, Peter. The department has received notice of the proposed post acknowledgment plan amendment identified above. It is our understanding that the county is proposing to revise certain elements of its local Goal 5 program. More specifically, the local Goal 5 program is proposed to be amended "in order to comply with the Religious Land Use and Institutionalized Persons Act and its equal terms clause." We are not convinced that such a revision is necessary. In fact, our read of the motivating decision by the Land Use Board of Appeals (LUBA) indicates that no equal protection issue is present and that the terms of the Religious Land Use and Institutionalized Persons Act (RLUIPA) are not at odds with the county's current wildlife area combining zone. Counties are free to revisit planning policy choices as they see fit. However, we see no reason to amend the Deschutes County local Goal 5 program due to the provisions of RLUIPA. Please enter this e-mail message into the record of these proceedings. Thank you, Jon Jinings Community Services Specialist Department of Land Conservation & Development From: Jenny Kerry To: Peter Gutowskv Subject: Don"t weaken wildlife protections Date: Thursday, October 5, 2017 5:22:15 PM Mr Gutowsky, I oppose the County's proposal to allow churches in the deer winter range because • Our deer populatii.oia is dwIindll,,ng. it is more important than ever to protect habitat from the disruption and degradation associated with additional development. • 110jeer are as much a part of Central Oregon as the'Three Slsters and the Deschutes Rleer,. Critical habitat should not be lost to further development. • Allowing churches in the winter range sets a dangerous precedent for our wildlife. lff churches are allowed, other types of riser lm th;.at are currently 1prohlNted such as golf courses, schools, publIlic r,ec centers, and others can argue that they should be a[Ilowf,'ed in the vviinter range or other crltica[I habitat, too. This would quickly erode wildlife habitat protections. • l!,`vNu[je deer are protected by Lailad Use Plannilinig Goal 5,. Making an exception to this goal can lead to other Goal 5 -protected resources, such as wetlands and riparian areas, being compromised. • WilidlIfe-related actfiviifles are an rrnportant part of Deschutes Cou,"nty's economy,, We don't need to expedite the loss of habitat, and this revenue, by allowing commercial event venues in the winter range, • I am a hunter. When degradation of critical deer habitat causes displacement and populations decline, my Nght to recreate, 1s, ilAfriinged upon. • Even though the proposed events are to take place in the summer, deer and other wildlife migrate through and reside in the space year-round. 111,11 makes, no d1iffereince to a mule deer whether lits, lhabiiitat Is degraded [in the wliinter or summer months. • There is plenty of space in the county for a wedding venue or church to operate. Deer winter range only accounts for a small fraction of Deschutes County land and is considered critical habitat. Churches can be moved, the winter range cannot. 7� " 1� i 1: '.. . �L�s From: LeeAnn Kriegh To: Peter Gutowskv Subject: Keep wildlife protections Date: Thursday, October 5, 2017 8:49:42 AM Mr. Gutowsky, Thank you for your work for the county. I was at last week's Planning Commission Hearing out of general interest in the topic. I wanted to hear for myself — as a Bend resident, amateur naturalist, and recreationalist — what all sides had to say. In sum, I came away strongly opposed to weakening existing wildlife protections in the Metolius Winter Range. I was stunned to hear the pastor straight-out threaten the county with a lawsuit. Surely our government doesn't back down to such threats! As was later pointed out, if you do, you open yourself up to whatever other groups want similar favors bestowed upon them. I found it insulting. The other major takeaway for me was that deer populations are in serious trouble. Corey Heath's statement of 28% (I think) deer populations hit me hard. Their populations are dwindling, so this is no time to be reducing their protections. We've fractured their habitat enough, and of course we'll only keep growing; to strip away existing protections makes no sense. I also thought a good point was made about the economics of this issue. It was a stunning oversight for the initial presenter to fail to mention the economic value of wildlife in Central Oregon. When you weigh that against the potential for a spurious lawsuit that's likely to fail (hopefully preventing future such lawsuits), it seems clear to me that the smartest financial move would be to stand up to the bullies and protect wildlife. Recreationalists like me live here and spend our money here precisely because we can see deer and elk and other wildlife in their wild — truly wild — habitat. Thank you again for your service and your time on this issue. LeeAnn Kriegh LeeAnn Kriegh Author of The Nature of Bend www.NatureofBend.com 503.381.3542 (cell) From: Mary Ann Kruse To: Peter Gutows4 Subject: Don"t weaken wildlife protections Date: Tuesday, October 3, 2017 6:12:42 PM Peter Gutowsky: I am against weakening wildlife habitat protections in the Metolius Deer Winter Range. Sisters area landowners have illegally held events on farmland & sensitive deer winter range NW of Sister for years. These landowners are unethical & corrupt. They understand their zoning is farmland yet disguise themselves as a private park & when that criminal attempt fails, they apply to be recognized as a church. Unbelievably, the County approved their illicit church application which was reversed after legal pressure was applied. This is obviously NOT a case of religious discrimination, which the landowners are now claiming. I encourage & plead with the County NOT to amend the wildlife code to allow churches. This is obviously a for profit commercial venue which would be operating in sensitive wildlife habitat. Central Oregon is losing sensitive wildlife habitat. We don't need to lose even more. These landowners need to hold their events elsewhere outside of sensitive wildlife habitat. They have distinguished themselves as renegades & should not be rewarded for their smarmy behavior. Deer populations are dwindling, which makes it even more important to protect habitat from disruption & degradation created by development. Deer are an integral part of Central Oregon & should be protected by prohibiting development including churches, parks, golf courses, recreation centers, wedding events, schools—these do NOT belong in critical wildlife habitat. Amending the wildlife code to allow churches will set a dangerous precedent @ the expense of our wildlife, eroding further wildlife habitat protections. Mule deer are protected by Land Use Planning Goal 5. Making an exception to this goal can lead to other Goal 5 protected resources including compromising wetlands & riparian areas. Wildlife related activities are an important aspect of Deschutes County's economy. Rather than expediting the loss of habitat & revenue, shouldn't the emphasis be on protecting it for our precious wildlife & our economy? I am not a hunter. That said, my right to view wildlife in their now displaced habitat prevents that opportunity. Amending the wildlife codes will surely interrupt centuries old migratory routes. Habitat will become so fragmented wildlife populations decline furthering the dwindling deer populations, impacting the economy & tourist industry. Regardless of when the events are to take place, wildlife reside in those critical habitats year round. Once their habitat is degraded & "event improved", wildlife will become displaced & wildlife populations lost. Weddings & other human events can take place many other places in the County without impacting wildlife. Deer winter range accounts for a small fraction of Deschutes County land considered critical habitat. Weddings & events can take place anywhere—critical habitat cannot. It is unacceptable for the County to amend its wildlife code to accommodate the for profit ventures of individual—especially when these individuals have been so devious. County codes & wildlife protections are a service to the public. This proposed code amendment does a disservice to the public & our natural resources for the benefit of a few individuals & their for profit desires. The County should stand up to defend it's protection of critical habitat. Mule deer & wildlife are a part of the Central Oregon life. Amending wildlife protections is not the answer. Find an appropriate location to hold weddings where wildlife are not displaced. I oppose the County's proposal to allow churches/human venues in deer winter range & any wildlife critical habitat. Most sincerely, Mary Ann Kruse M.A. Kruse "No matter where you look, the long & closer you observe, the more comp�icoted mysterious the world gets." Joe Hutto From: William Kuhn To: Peter Gutowsky Cc: Nick Lelack Subject: Kuhn submission to County re churches in WA overlay zone text amendment Date: Friday, October 6, 2017 1:37:10 PM Attachments: 20170930 Kuhn to DCPC re Churches in WA Overlay Zones.pd Please enter the attached in the public record before the Spm deadline. Thank you, William Kuhn INVEST/O - Registered Investment Advisors PO Box 5996 Bend, OR 97708-5996 541 389 3676 William@RiskFactor.com "Illegitimi non carborundum" - refers to the continuing acts of Deschutes County See www.A-WayForward.com for why. "First, they ignore you, Then they laugh at you. Then they fight you. Then you win." Mahatma Gandhi CONFIDENTIALITY NOTICE- The information contained in this electronic mail transmission, including all attachments, is confidential and may not be shared or forwarded without authorization of the sender and, if so authorized, may not be shared or forwarded without this Notice. This transmission is intended solely for the individual named above. If the reader is not the intended recipient, you are notified that any dissemination or unauthorized use of this transmission is strictly prohibited. If you received this transmission in error, please notify the sender by replying to this transmission, and then delete it from your computer and network. 20170930 Kuhn to DCPC re Churches in WA Overlay Zones To the Deschutes County Planning Commission Regarding the text amendment to allow churches in the WA Overlay Zone This is Strong Opposition to Churches in the wildlife area overlay zone The purpose of the WA overlay zone is to protect wildlife by restricting human activity. My wife and I moved to Oregon thirty-one years ago partly because of the land use laws that say wildlife is a benefit to all and needs to be protected. We purchased property in the WA overlay zone to help be that buffer between wildlife and human activity. We have always used our property as an example of how to be a good buffer. We knowingly gave up some personal freedoms in order to comply with the wildlife restrictions. In our cluster development we are even restricted from having new dogs on our property. Because there are many people who do NOT live within the WA overlay zone that may be in support of this text amendment, it is important to give greater emphasis to ODF&W's position. Most people who do not live within the WA zone have very little concept of why there is such a zone. There are also people who bought property within the WA zone and who didn't realize what the wildlife overlay zone was before they purchased. Those people didn't do their due diligence. They had no concept of how fragile the wildlife habitat is. The point here is -- the people wanting the permission to allow churches in wildlife overlay zones presumably knew before they purchased their property, that churches were not allowed in wildlife area overlay zones. It is the responsibility of the purchaser to do their due diligence before they buy the property to make sure that they are permitted to build what they want, where they want, and also what occupation is possible to conduct on the property in question. The added numbers of people, the lights, the cars, the noise, the fracturing of the wildlife habitat. It goes to the core of what is the duty and obligation of Deschutes County to enforce its code even though it doesn't lik ierability. • Oregon Legislature in 2011 approved Senate Bill 960 allowing counties to establish agri- tourism and other commercial events and activities related to and supportive of agriculture • Deschutes County adopted Ordinance 2012-004, allowing agritourism and commercial events and activities in Exclusive Farm Use zone with Wildlife Area Combining Zone, subject to time, place, and manner regulations C:\Docs\prop65575\DesCoCode\PlanningCommission\20170930 Kuhn to DCPC re Churches in WA Overlay Zones.docxpage 1 2017-10-06 I understand the County's hesitancy, but it certainly also shows that it doesn't care about the wildlife habitat enough. If Deschutes County believes that their ordinance which allows agritourism and commercial events and activities in Exclusive Farm Use zone and with Wildlife Area Combining Zone, subject to time, place, and manner regulations should be changed, then CHANGE that ordinance and exclude all such activities within Wildlife Area Combining zones. That's the text amendment that the County should be re -writing. The following is more evidence that we need to be recognizing the continued added pressure from population growth, and the potential for greater reduction in wildlife habitat. Deschutes Tied for Fastest Growth in Gross Domestic Product in 2016 By CBN on September 28, 2017 E -Headlines Metro Areas with the Fastest Growth in Gross Domestic Product, (2015-201.6) ®U-�x4 fl)A3::. 7% aM 0 � � Z z t?ri 2 This appeared in a recent edition of Cascade Business News, and although I have nothing per se against having a good business climate, from my vantage point, living within the Tumalo Winter Deer Range and overlooking a sizable stretch of Sisemore Road, there is increased dirt -bike and ATV usage when the economy is good as opposed to when gas prices are high and the economy is bad. Although it is illegal to drive on Sisemore Road without a license plate, and it is also illegal to drive off the road at any time due to the road closure to all motor devices due to the BLM designated ACEC (area of critical environmental concern), the Sheriff's department only has so many deputies. Please Deschutes County, do your duty and protect the wildlife habitat. Thank you, William Kuhn — resident within the Tumalo Winter Deer Range who did my due diligence before buying. C:\Docs\prop65575\DesCoCode\PlanningCommission\20170930 Kuhn to DCPC re Churches in WA Overlay Zones.docxpage 2 2017-10-06 From: Ann Laferriere, CFP To: Peter Gutowsky Subject: Please don"t weaken wildlife habitat protections in the Metolius Deer Winter Range Date: Wednesday, October 4, 2017 9:59:20 AM Dear Mr. Gutowsky, There is plenty of space in the county for a wedding venue or church to operate. This deer winter range is critical habitat and is a very small fraction of land which must remain protected by Land Use Planning Goal 5. It troubles me that individuals who are simply persistent in bending rules and modifying their approach may ultimately wear down good people like yourself who are charged with maintaining our economically important sensitive habitat. They wish to increase profit for themselves and reduce profit for others who rely upon healthy deer populations to earn their living. The natural environment and healthy deer populations are critical to the broad economic vitality of this region. Please strengthen or maintain sensitive wildlife habitat. Thank you, Antoinette Laferriere 61140 Minaret Cir Bend, OR 97702 541-944-3116 From: Laurie To: Peter Gutowskv Subject: Winter Mule Deer Migration Date: Friday, October 6, 2017 4:54:32 PM Hi Peter, Would that the mule deer could speak up on this issue. We've already irrevocably altered their habitat, and now we want to chop it up even further for wedding events! What? Come on... give our fellow sentient beings a break. I hope that Deschutes County officials can begin to manage our land for the long term, rather than for short term monetary gain. Laurie Lakin 1016 NW Ogden Avenue Bend, OR 97703 Sent from my iPad From: Miriam and Ted To: Peter Gutowskv Subject: Don"t weaken wildlife protections Date: Tuesday, October 3, 2017 7:56:53 PM Dear Mr. Gutowsky, My name is Miriam Lipsitz and I live in Bend. My husband and I moved to Central Oregon 20 years ago from Iowa. I would like to comment on the possible change to our wildlife code in order to allow a church in the Metolius Deer Winter Range. Since moving here, we have read how populations of our mule deer are dwindling from a number of different pressures, not the least of which has to do with the encroachment by development into more and more rural areas. By now, this is an old problem - human beings crowd out wildlife all over the planet. We were so pleased and proud to know that the Metolius Deer Winter Range was land specifically set aside to protect our mule deer. PLEASE do not let this protection become weakened. Churches must not be allowed to become an exception under ANY circumstances to weaken the wildlife code. Miriam Lipsitz From: Kate To: Peter Gutowskv Subject: for-profit church activities in deer winter range Date: Tuesday, October 3, 2017 8:41:49 PM Dear Mr Gutowsky, I am writing to oppose the County's proposal to allow churches in the deer winter range found NW of Sisters. Churches can be moved, the winter range cannot. Further, what kind of a church runs a for-profit wedding center? And won't this open the door to golf courses or other businesses running for profit activities on the deer winter range? The wildlife code was written the way it now stands for good reason. Please do not bow to pressure from this ridiculous switching of hats: farmland to private park to for-profit church venue. Best regards, Kate Loughney Bend, OR From: bk morales To: Peter Gutowskv Subject: Don"t weaken wildlife protections Date: Wednesday, October 4, 2017 10:40:40 AM We ar against weakening wildlife habitat protections in the Metollus Deer Winter Range. John Mayer Beverly Morales '19383 Klippel Rd. Bend, OR 97703 From: jmeredit(ftendnet. corn To: Peter Gutowskv Subject: winter deer range Metolius Date: Tuesday, October 3, 2017 9:38:00 PM More and more people are moving into wildlife habitat and we are losing the wildness that makes central Oregon desirable to people and to the wildlife that were here first. Allowing more commercial activity will not protect wildlife. There are plenty of commercial sites available for gatherings. Churches should not be more important than wildlife. Please keep central Oregon wild enough for deer and birds to survive in peace. Judy Meredith, jmeredit@bendnet.com, Judy Meredith 63460 Bridle Lane Bend, Oregon, 97703 From: Cathy Morton To: Peter Gutowsky Subject: comment not in support of amending the county"s wildlife code to churches Date: Thursday, October 5, 2017 10:42:29 AM Dear Mr. Gutowsky, I am a proponent of wildlife habitat protections and, for a multitude of good reasons, am not supportive of the County amending its current wildlife code to allow "churches" in the Deer Winter Range as I believe some of the activities associated with churches, such as weddings, would degrade and disrupt the Range's habitat that is critical to our dwindling Mule deer population and that it could set a dangerous precedent going forward — the impact of which would be detrimental our wildlife. Thank you for the opportunity to provide comment. Cathy Morton From: Rita Olin To: Peter Gutowskv Subject: Fw: churches in the winer deer range Date: Friday, October 6, 2017 7:00:06 AM On Thu, Oct 5, 2017 at 7:28 AM, Rita Olin <rmoranchna yahoo.com> wrote: Please, please, please have more consideration for our wildlife. Our deer populations are dwindling and their winter range is being severely efected by the encroachment of development already in place. The law is clear... no churches! Please stand by the law. folks buying property in the WDR have a responsibility to research the property terms before purchase. Our wildlife should not have to suffer due to their negligence. Rita Olin September 30, 2017 Dear Deschutes County Planning Commission: Perhaps a statement as to my own background is important prior to presenting my viewpoint on an issue you are currently considering. After retiring to Central Oregon, I decided to become involved in civic matters. I was elected to the Redmond School Board in 2012 and served a four year term. For 2015-2016, I served as Chair of Deschutes County Republicans. From 2010 until now, I have been Chair of Redmond Patriots — a community education organization with over 450 members. At the September 25 Redmond Patriot meeting we heard from both Representative Gene Whisnant and John Shepherd. Mr. Shepherd shared with our group what he has been going through re: his petition to regain his church permit. I feel compelled to weigh in on the question before you regarding Shepherdsfield Church. As an involved and interested Deschutes County citizen, I cannot imagine the county would intend to ban churches anywhere. In fact, didn't the county argue as much in appeals court just recently? I strongly urge you to do whatever is necessary to restore this much cherished religious right to Mr. Shepherd. I'm confident it is possible to find a way for citizens to live in harmony together with nature without depriving us of our Constitutional and human rights. It is your job to find that way. I urge you to do so. Please enter this letter as part of the written record on this matter before you. Sincerely, Robert Perry 1786 Turnstone Road Redmond, OR 97756 OUR MISSION: "Promoting American Esceptionalism through Comm unite Education" From: Karen To: Peter Gutowskv Subject: Don"t weaken wildlife protections Date: Tuesday, October 3, 2017 5:21:04 PM I'm Karen Rippberger of La Pine, and I am agains weakening the protections for the Metolius Deer Winter Range. It is important to protect our wildlife and wild areas, not only for the health and well being of the wildlife, but for our own quality of life and that of our children. Weakening protections is something that can be very hard to undo and very destructive to wildlife. Allowing one church, will simply encourage more people who want to operate illegal operations in that sensitive area to become a church. Obviously, these people are free to open their church in another area of Deschutes County. It s not religious discrimination; it is location discrimination, as it should be. That sensitive area needn't be filled with insensitive "churches" cutting off access for everyone else and destroying this wintering area merely to line their pockets and for selfish personal enjoyment. Karen Rippberger From: Kathleen Roche To: Peter Gutowskv Cc: kathleensrocheRomail.com Subject: Don"t weaken wildlife protections in the Deschutes County Land Use Plan Date: Wednesday, October 4, 2017 4:47:35 PM I am a resident of Bend, Oregon and therefore Deschutes County. I am providing these comments as a private citizen and represent no-one other than myself. I am not paid for these comments. I attended the public hearing on the land -use change hearing and listened carefully to the points presented by each side regarding land uses in the Sisters area. Thank -you for offering me the opportunity to think about this and submit these written comments at this time. I am opposed to changing the Deschutes county planning rules and weakening wildlife habitat protections in the Metolius Deer Winter Range or elsewhere in Deschutes County. The plan seems to have appropriately recognized an area and a condition that requires different land uses than what is in place elsewhere in the county. I would like to see you keep the plan as it is currently and to defend the current plan as it is. This would be a "win" for wildlife. I stand with LandWatch on assessing the background and facts of the situation: For years, Sisters -area landowners have illegally held wedding and other events on farmland and sensitive deer winter range northwest of Sisters. LandWatch has been opposing their requests for permits—and winning. After failing to disguise themselves as a private park to operate their commercial business on farmland, the same property owners then applied to be recognized as a church so that they may hold events. After the county approved their application to operate as a church, LandWatch appealed and LUBA again reversed the county's decision, as churches are one among many different uses, including golf courses and public schools, not permitted in the Metolius Deer Winter Range. These landowners are now threatening the county with a religious discrimination lawsuit, and the county is bending to pressure at the expense of wildlife. The County is considering amending the wildlife code to allow churches, so that a for-profit commercial event venue can legally operate in sensitive wildlife habitat. If amended, the code will allow this "church" to operate a for-profit wedding venue, bringing approximately 250 wedding guests to each event. This kind of activity is prohibited in the Deer Winter Range for a reason—because it is detrimental to our wildlife. I oppose the County's proposal to allow churches in the deer winter range because... •Our deer population is dwindling. It is more important than ever to protect habitat from the disruption and degradation associated with additional development. •Deer are as much a part of Central Oregon as the Three Sisters and the Deschutes River. Critical habitat should not be lost to further development. •Allowing churches in the winter range sets a dangerous precedent for our wildlife. If churches are allowed, other types of assemblies that are currently prohibited such as golf courses, schools, public rec centers, and others can argue that they should be allowed in the winter range or other critical habitat, too. This would quickly erode wildlife habitat protections. •Mule deer are protected by Land Use Planning Goal 5. Making an exception to this goal can lead to other Goal 5 -protected resources, such as wetlands and riparian areas, being compromised. -Wild life -related activities are an important part of Deschutes County's economy. We don't need to expedite the loss of habitat, and this revenue, by allowing commercial event venues in the winter range. •When degradation of critical deer habitat causes displacement and populations decline, my right to recreate is infringed upon. •Even though the proposed events are to take place in the summer, deer and other wildlife migrate through and reside in the space year-round. It makes no difference to a mule deer whether its habitat is degraded in the winter or summer months. •There is plenty of space in the county for a wedding venue or church to operate. Deer winter range only accounts for a small fraction of Deschutes County land and is considered critical habitat. Churches can be moved, the winter range cannot. •It is unacceptable for the county to amend its wildlife code to accommodate the for-profit ventures of individuals. County codes and wildlife protections are a service to the public. This proposed code amendment does a disservice to the public and our natural resources for the benefit of a for-profit event venue. •Mule deer are part of the Central Oregon way of life. The county should stand up to defend its protection of critical habitat. Thank -you. Kathleen S. Roche 63255 Stonewood Drive Bend, OR 97701 307-760-9325 From: Adam Smith To: "Raymond Romero" Cc: John Shepherd; Peter Gutowskv Subject: RE: Shepherdsfield Church Permit and EFU Wildlife Layer Proceedings Date: Thursday, October 5, 2017 8:13:49 AM Thank you. I will forward your email to Peter Gutowsky to include in the record. D. Adam Smith Deschutes County Assistant Legal Counsel 1300 NW Wall St., Suite 205 Bend, OR 97703 Phone: (541) 388-6593 Fax: (541) 617-4748 adam.smithO—deschutes.org THIS ELECTRONIC TRANSMISSION, INCLUDING ANY ATTACHMENT HERETO, IS CONFIDENTIAL AND PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND/OR OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IN THIS TRANSMISSION IS INTENDED ONLY FOR USE OF THE INTENDED RECIPIENT. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THE SENDER AND DELETE THIS TRANSMISSION. From: Raymond Romero [mailto:nambekid@hotmail.com] Sent: Wednesday, October 04, 2017 8:36 PM To: Adam Smith <Adam.Smith@deschutes.org> Cc: John Shepherd <shepherdsfield@gmail.com> Subject: Shepherdsfield Church Permit and EFU Wildlife Layer Proceedings Greetings Mr. Adam Smith, Attached is a narrative I have prepared regarding the Shepherdsfield Church and Wedding Venue, with regards to wildlife management and church permit sought by the Shepherds. Thanks for your consideration... any questions you can call me at (541) 419-3017 or call John Shepherd. Thanks! Sincerely, Raymond F. Romero, Professional Wildlife Biologist & Natural Resources Specialist. Regarding Deschutes County Consideration of Allowing Churches in the EFU Wildlife Overlay Deschutes County, State of Oregon Greetings, My name is Ray Romero, I am a retired professional Wildlife Biologist and former federal Natural Resources Specialist & Administrator. My professional credentials are displayed at the end of this narrative. I make a statement here on the premise that in the recent past I have been involved, to a degree, in this ongoing issue. In the past I did submit a professional analysis on this matter which should be in record with John Shepherd and the County, I'm supposing. Now I wanted to share more regarding the Deschutes County consideration of allowing churches in the EFU Wildlife Overlay. Re: Shepherdsfield Church (John and Stephanie Shepherd). I feel obligated to make a professional statement to this on the premise that I was invited to participate in an evaluation regarding wildlife concerns on the property owned by John and Stephanie Shepherd, with regard to their wedding venue activities and request for a church permit. The 216 acre property owned by the Shepherds, situated - Legal Description: Township 14 S., Range 11 E., Section 11. in Deschutes County is a substantial landscape with visually scenic values, also serving as wildlife use area, providing an area for escape & refuge, solitude, cover and forage, to various wildlife species, through much of the year. Because of these values, the former property owner formulated a generalized wildlife plan, which was passed along to John and Stephanie, the next owners. The in-depth proceedings regarding the Shepherdsfield venue and it's activities on non -wildlife related issues, but more on property use and religious functions, somehow brought the wildlife plan to the forefront as an issue. Because of this added element a gathering occurred, on the property, to discuss matters face-to-face. In the recent past a group made up of the property & home owners, their legal counsel, Deschutes County Commissioners, Oregon Department of Fish and Wildlife Biologists, other land management personnel, and myself (consulting as a professional wildlife biologist) gathered at the home & property. We began discussion adjacent to the wedding venue portion of the property, near the home, and began discussions on possible impacts to wildlife from wedding venue activities, and to identify possible mitigating measures. Later we went on to evaluate other property areas, away from the activity area to evaluate and discuss habitat values and opportunities. This evaluation was conducted in regards to the, aforementioned, property wildlife management plan. Present at this field review was Cory Heath and an assistant, representing the Oregon Department of Fish and Wildlife (ODFW), Will Groves, David Doyle, Nick Lelack, Tammy Baney, and Tony Debone, the property owners and myself. We walked around the property and observed the 1.5 acre lawn he had planted, as well as the dozens of quaking aspen and 2000 square foot wildflower garden. All of these plantings providing buffer and habitat for wildlife use. The large lawn, particularly, providing nourishment for the deer in the spring, in particular, the grasses providing nutrients to the lactating females (doe's) carrying young. The ODFW biologists, John and myself walked around into another portion of the 216 acre property, west of the home and venue area, mostly comprised of juniper woodland habitat, and understory vegetation comprised of sagebrush, bitterbrush, some scattered bunch grasses, on scab rock escarpments. Cory Heath, ODFW, wildlife biologist recommended that John Shepherd expand his wildlife management plan to include rehabilitation of 25 acres of the scab rock area. Specifically, cutting and piling the smallest (90%) of the juniper trees and seeding 125 pounds of native plants. The main purpose of this project was to enhance the property for large game. The finished work was then to be examined by both Deschutes County and ODFW. Mr. Shepherd agreed to these enhancements to his wildlife management plan as part of his application for a church permit. He has fulfilled his commitment and completed the work, and had notified Deschutes County and ODFW as required. He has photo records and receipts establishing documentation of his accomplishments. In early summer 2017, Will Groves and two representatives from the ODFW examined his work. They observed the dozens of large juniper slash piles scattered over the 25 acre project area. The accomplished buffering work done around the house along with the work completed on the 25 acre rock scab area, as agreed, presents Mr. Shepherd's compliance with the wildlife mitigation obligation. In fulfilling this obligation, the County assured Mr Shepherd that County that they would permit his church. This being the case, I believe the County now needs to fulfill their obligation and assurance to Mr. Shepherd, on this permit. In my professional perspective, the activities, including those outdoors on the 1.5 acres and gazebo, during a wedding venue is quite minimal. A wedding venue is only a single day event, and not a cumulative impact occurring days on end through the summer... Most of this activity is in the summer months, posing very little impact to large game, which during this time reside in summer range in the higher cooler, montane, habitats (not juniper woodland) or along major river corridors, like the Deschutes River and its larger tributaries. Smaller wildlife continue to use the area, as evident by the continual fresh sign on the property through the summer. The completed wildlife projects on this property, along with the other natural wildlife habitats, in and around this area, make this an even more valuable wildlife use area. In a cumulative effects perspective, These 216 acres are only a small part of the vast number of private and public acreage that contribute to the richness of the wildlife resources we enjoy here in this part of central Oregon. Regarding the church permit, I believe Mr. Shepherd should be given the permit he has been requesting. I see it as being far less impacting than the County giving permits to big developers who impact far more wildlife habitat, agricultural infrastructure, water rights, water & soil quality, etc... Thank you for this opportunity allowing me to share my professional perspective and recommendation on this matter. I will follow it with great interest praying there is some sound resolution. Sincerely, Raymond F. Romero Date: October 4, 2017 Professional Wildlife Biologist Credentials: 1 have recently retired from the US Forest Service with close to 35 years of federal service. Following is an outline of my positions and experience as a Professional Wildlife Biologist, Natural Resources Planner, Natural Resources Program Manager, District Ranger, and Natural Resources Staff Officer. I also have vast experience in the Incident Command System (ICS) Wildland Fire Management, Ecology, Forest Health, Animal Damage Management, and Civil Rights. 1978 - 1984 District Wildlife Biologist, Siuslaw National Forest, Pacific Northwest Region 1981 - Bachelor of Wildlife Science degree, College of Agriculture, New Mexico State University 1984 - 1988 Zone Wildlife Biologist, Malheur National Forest, Pacific Northwest Region 1988 - 1991 Zone Wildlife Biologist, Gila National Forest, Southwest Region 1991 - 1994 Forest Wildlife/Fisheries/Range/Animal Damage Mgmt. Program Manager, Carson National Forest, Southwest Region 1994 - 1999 NR/Ecology Planner & Collaborative Stewardship Coord., Carson National Forest, Southwest Region 1999 - 2002 Forest Wildlife/Fisheries/Range Program Manager/Sub-Staff Officer, Carson National Forest, Southwest Region 1999- Jan - July I served as Acting District Ranger, Canjilon Ranger District, Carson National Forest, Southwest Region 2002 - 2006 District Ranger, Chemult Ranger District, Fremont - Winema National Forest, Pacific Northwest Region 2006 - 2013 Natural Resources Staff Officer, Deschutes & Ochoco National Forests & Crooked River Nat'l Grassland, PNW Region 2013 - present Consultant Professional Wildlife Biologist 2014 - present Appointed Member of the Secretary of Agriculture, Central Oregon Resource Advisory Council (RAC), Secure Rural Schools Act, (Title 11) From: Gisela Ryser To: Peter Gutowskv Subject: Mr. Shepherd"s Sisters Church Date: Sunday, October 1, 2017 3:53:40 PM Dear Mr. Gutowsky, I urge the Bend Planning Dept. to not change the rules for D.C.C. 18.88, the Wildlife Combining Zone allowing Churches" and to conduct weddings with hundreds of guests and other such for profit endeavors in deer and elk winter ranges. A lot has changed since I arrived in Bend in 1979. It has not all been for the better. Sure, Bend has gained notoriety for its great restaurants and breweries. It boasts multi-million dollar homes in wildllife winter ranges and fancy resort sprawl through deer and elk corridors. Bend's praises are sung in any outdoor magaZlne, but the outdoors is not as nice any more. Everything is overcrowded, lakes and the Deschutes are overused, and wildlife has taken a huge toll. Mule deer populations have decreased by 55% since the 1960's as per ODFW. A huge percentage of deer are victims of car collisions ( in 2016 there were over 1000 in town, on highway 97 and county roads combined. Others died because of human intrusion into their habitat, be it from subdivisions,recreational activities or even for profit opportunities like the "Church" in Sisters. In its 2015 'Initiative for Bend in 2040' the Bend City Council listed among its goals that the City' stay connected to its rivers, forests and wildlife'. This is one point that seems to have been forgotten among all this recent hustle and bustle. It has also become a topic of frustration for those of us who moved to Bend because of its beautiful natural environment and abundant wildlife, which is no longer abundant. Last winter has taken a tremendous toll on the already overly stressed mule deer in Central Oregon. Robbing them of another winter range (in this case the Metolius) would be a huge mistake and threaten their survival, which is already questionable as per various agencies and wildlife biologists in the area. I urge you not to be pressured by Mr. Shepherd. If he succeeds, it will set the stage for more and more such endeavors, further undermining wildlife and the environment, ultimately back firing on Bend's attractiveness. Sincerely Gisela Ryter, Bend Refugee since 2016 McCall, ID Sent from my Whone From: John Sheer To: Adam Smith Cc: Peter Gutowskv Subject: Arguments to be added to the record Date: Wednesday, October 4, 2017 10:29:02 AM Attachments: Rebuttal new.docx Dear Adam, please find attached my legal arguments and rebuttal to be added to the record for the Planning Commission's consideration. A few highlights for your consideration: 1. As you argued at Oregon Court of Appeals, isn't it the County's official position that DCC does not prohibit churches? And yet the entire argument against my church last week was in favor of retaining an alleged prohibition on churches. So, which is it? Is County merely working to clarify in the code that they don't prohibit churches? Or are they considering to retain a prohibition of churches? 2. As a workable compromise, I'm suggesting that County delete 18.88.040(B) but impose reasonable site mitigation to offset any impact on deer that churches may impose. 3. Since ODFW and County already signed off and approved the extensive mitigation work I've already performed for my Wildlife Management Plan, County and ODFW are under obligation to stand behind the site approval of my church and deny any wildlife impact criticism. Double jeopardy, right? Dan Dalton, my attorney, will also be submitting his legal arguments for the record. Thanks again for your work. John Shepherd Work with passion. Pray with inspiration. Regarding the Deschutes County Planning Commissions consideration of a church text amendment Legal arguments, rationale and rebuttal by Pastor John Shepherd Narrative- How we got to this point 1999 -John Shepherd begins pastoring a house church in his home in Sisters. John began attending Bible School in 1976 and has 40 years of ministry experience. 2014, March 18th, Deschutes County Code enforcement issues a code violation notice to Shepherd, stating that a church has located in his house without necessary permits. 2016, Feb 25th and March, County Planner Will Groves and County Attorney John Laherty tell Shepherd that he is only allowed four gathering per year, or one per quarter, without additional permits. 2016 -Shepherd applies for a church permit, approximately $10,000, including hearings officer fees. 2016 -Will Groves approves church permit 2016 -Hearings officer approves church permit 2016- Central Oregon Landwatch appeals to LUBA, arguing DCC 18.88.040(b) prohibits churches. 2016-LUBA overturns permit stating that DCC 18.88.040(B) prohibits churches on EFU WA. 2017 -Adam Smith, representing Deschutes County, appeals LUBA to Oregon Appeals court. Smith argues that Deschutes County does not prohibit churches on EFU WA. 2017- Oregon Appeals Court upholds LUBA without comment. Shepherdsfield Church permit revoked. 15 Legal arguments in favor of a text amendment, allowing churches on EFU with wildlife overlay: 1. Deschutes County's official position is that the County does not prohibit churches on WA overlay. Adam Smith argued in Oregon Appeals Court that it was never the intention of Deschutes County to prohibit churches on EFU WA. Thus, the planning commission should assist County in adjusting the code to uphold that official position. 2. "Congress shall make no law prohibiting the free exercise of religion". First Amendment to the US Constitution "No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution."-RLU IPA This Federal law requires ALL governing bodies to protect the rights of churches to locate where other non -religious activities are allowed. 4. "No government shall impose or implement a land use regulation that A) totally excludes religious assemblies from a jurisdiction, B) unreasonably limits religious assemblies, institutions or structures within a jurisdiction." - Federal law contained in RLUIPA However, DCC 18.88.040(8) does totally exclude churches, according to LUBA and the Oregon Appeal Court rulings. Thus, 18.88 needs to be altered to comply with Federal law. Otherwise it is subject to a Federal lawsuit. 5. State law allows churches on EFU as one of only a small number of "uses permitted outright". The reason for this provision is because of Federal religious protections. 6. Deschutes County has permitted, in EFU WA, a hunting lodge and a business office with storage area, to name just two examples. They also permit agri-tourism gatherings and events, which are very similar in nature to church gatherings with weddings. County has also permitted houses, barns, shops and other residential and agricultural enterprises. Thus, RLUIPA requires County to also allow churches. 7. Since churches are allowed in the Bend/Lapine WA area, there is insufficient reason to ban equal access in the Metolius WA area. County can't allow one and not the other. This failure wouldn't pass strict scrutiny in RLUIPA court. DCC 18.88.040 allows many uses of EFU WA and only excludes ten uses, including churches. Two uses that I know about are a hunting lodge (which is allowed) for the specific purpose of killing deer, and a business office and storage area. Yet, since only ten uses are prohibited, many others are implicitly allowed, such as an Environmental meeting center, a farm stand, a private park, a Boy Scout center, a commercial workshop. And since these uses are allowed, banning churches is clearly discrimination, and thus a violation of RLUIPA. 9. State law determined that my 216 acres of rock and juniper is "exclusive farm use", even though it is mostly unsuitable for farming. The intent of the agri-tourism bill passed by the state is to provide a way for large acreages to make alternate income. My church ministry with weddings meets the spirit and intent of the state agri-tourism bill. 10. Agri -tourism is a use permitted on EFU WA. By definition, the assemblies and activities of Agri - tourism, such as weddings, are equal to the activities of Shepherdsfield. A Federal court would see allowing agri-tourism on EFU WA and then banning churches as a violation of "equal access". 11. Landwatch suggested that the code prohibitions on EFU WA could be expanded to also prohibit anything similar to churches, thus not discriminating. That has four big problems. 1) It is too late. 18.88 has already caused my church permit to be revoked. County can't retroactively expand prohibitions and revoke existing permits. 2) RUIPA "equal access" protections are broad and require that churches be allowed if any other commercial or non-commercial activities are allowed. For example, allowing a agri-tourism or a hunting lodge in a jurisdiction means that a church has to be allowed. 3) Churches are allowed on the Bend/Lapine WA. 4)Expanding prohibitions would have to include banning agri-tourism, which is required by state law. 12. In order to defend a ban on churches, County must meet the "compelling government interest" test. Since deer are not a threatened or endangered species, but are hunted by the 10's of thousands, and slaughtered by protected cougar, there is no way that the County ban on churches would be seen as "compelling governmental interest" by a RLUIPA court. According to ODFW website, Oregon "offered more than 73,000 controlled deer hunting tags" in 2015. Banning my church to protect deer cannot be considered a "compelling gov't interest". Especially since County permitted a hunting lodge on EFU WA. 13. Landwatch suggested that Shepherdsfield could be forced to relocate. RLUIPA requires that churches be addressed with "least restrictive means". Relocating churches to other areas is not "least restrictive". Furthermore, the substantial burden of forcing my house church and wedding ministry away from my home and venue is unreasonable and would not pass legal scrutiny. Finally, RLUIPA forbids governments from "totally excluding religious assemblies" from an area. 14. Landwatch suggested that County delay a decision and engage in endless fact finding. This delay tactic would only continue to harm me and trample my rights. As I explained to County counsel, County has to act sincerely to remedy this matter to forestall an expensive (and politically embarrassing) Federal lawsuit. 15. Landwatch suggested that the County exercise a cost -benefit review and take the risk of losing a $10 million lawsuit, if only to serve the deer. But isn't the county also supposed to serve the people and uphold the law? Isn't the county also supposed to uphold our Constitutional rights? The reason the State listed churches as a "use permitted outright" is because Churches and religion are supposed to be protected in America. Suggestions to consider: County could easily require mitigation to offset the impact of churches in EFU WA. My mitigation included 5 acres of irrigated pasture, 1.5 acres of lawn, extensive buffering vegetation around our structures plus 25 acres of forest rehabilitation, including extensive thinning of Juniper, dozens of huge slash piles and millions of native seeds broadcast. Shepherdsfield already does more for deer habitat and survival than just talking. Responses to 17 Objections: 1. As a precondition to my church permit, Shepherdsfield agreed on an expensive and labor intensive mitigation plan designed by ODFW as part of our Wildlife Management Plan. Our property was examined by a group of experts including Corey Heath (ODFW), Ray Romeo (Deschutes National Forest), County planners Will Groves and Nick Lelack, and County attorney David Doyle. They examined the mitigation already performed, including planting dozens of Quaking Aspen, a 1.5 acre lawn and a 2000 square foot wildflower garden. We also walked the through the forest and observed the over growth of Juniper and the abundance of scab rock. Mr. Heath suggested and I accepted a large rehabilitation project as an extension of my Wildlife Management Plan, as an additional accommodation for church activities. I cleared and piled 25 acres of Juniper. I also broadcast 2 million seeds (125 lbs) of native grasses and legumes. As required, I documented and reported this to Deschutes County and ODFW. Will Groves and two ODWF reps subsequently inspected and approved my work. As a result, my property now boasts a 5 acre irrigated pasture, a 1.5 acre lush lawn, a 2000 square foot wildflower garden, nearly 100 Aspen trees and 25 acres of rehabilitated forest. My property is now much better suited for deer habitat than ever. To claim that my property and church will have a negative impact on deer is dishonest and uninformed. And for Mr. Heath to design an expensive mitigation plan and then, after that plan is competed, to testify against the permit is fraud. 2. Deschutes County accepted my Wildlife Management Plan and the mitigation work and assured me that this opened the door for a church permit. It would be unethical for County to turn around and now say that my mitigation work is insufficient. 3. Carol with Landwatch said that deer bring $9 million into the local economy, mainly through hunters buying tags to kill the deer. In contrast, using Bend Tourism numbers, my church and wedding ministry brings in $1.2 million all by itself through tourism, florists, hotels, caterers, vendors, etc. And no deer are killed. 4. 95% of our outdoor activities are limited to the warm months when the deer are away in the mountains. Thus, the impact on deer is negligible. 5. Of the 216 acres, we will only be using about 1% of that property about 2% of the time. Again, negligible impact on deer. Compare that with the business office and storage space approved by County which will be used 52 weeks per year. Or the hunting lodge with the sole purpose of killing deer. 6. Our church permit has a maximum of 25 persons, typically 12. The impact on the deer of 12 people meeting weekly is negligible. 7. Many of the environmentalists bemoaned the decline of deer, implying that my church will only worsen the problem. First, my church has undergone extensive mitigation to support the deer, including extensive buffering, a 5 acre pasture, a 1.5 acre lawn and 25 acres of forest rehabilitation to enhance wildlife habitat. Deer love my 216 acres. My lawn and pasture feed the deer throughout the winter. Second, the decline in deer is primarily caused by two factors: 1) the proliferation of cougar ever since the environmentalists banned hunting cougars with deer. ODFW estimates the cougar population has grown to 6000. An adult cougar will kill one big game per week. With 6000 cougars in Oregon, (my family has seen 5 cougar on or within a half mile of our property) that is a lot of dead deer. 2) Catastrophic forest fires in Oregon have destroyed millions of acres of animal habitat, including deer and owl. Just in 2017, 700,000 acres burned. Why so much? Because instead of harvesting/thinning and replanting, the "protected" and unharvested forests now get over aged and over grown, weaken, are easily infested with beetles, and a simple lightning strike creates a catastrophic forest fire. Not to mention the harm of roadless forests and off limit Wilderness zones- all misguided environmental policies that subject our forests to catastrophic fires and destroy deer habitat. 8. State law determined that my 216 acres of rock and juniper is "exclusive farm use", even though it is mostly unsuitable for farming. The intent of the agri-tourism bill passed by the state is to provide a way for large acreages to make alternate income. That is what our church ministry with weddings is accomplishing. 9. One environmentalist complained that Shepherdsfield is an LLC and pursues money above ministry. First, Shepherdsfield LLC is my company that manages property. Shepherdsfield Church is a separate entity. Second, Shepherdsfield Church pre-existed the wedding venue by several years and I have been in ministry for over 40 years, including pastoral, family and marriage counseling and teaching. Weddings are a ministry of Shepherdsfield church, as outlined in our 501(c)(3) mission statement. We charge about 20% of what our competition charges and I perform about half of the ceremonies. I also provide premarital and marriage counseling. 10. My church ministry was repeatedly portrayed as being substantially harmful to deer. This is false for three reasons: 1) Out of my 216 acres, only 1% of the land is being used about 2% of the time. 2) The mitigation steps I've taken actually aid the deer, not harm them. My 1.5 acre lawns is covered with deer pellets in the spring. They eat my pasture. They eat my cattle hay. They enjoy the 25 acres of rehabilitated and planted forest. 3.95% of my ministry activity is during the warm months when the deer are not even in the area. Corry Heath testified that the crucial deer season is December through March. I have zero weddings or out door activities during that time. RLUIPA requires that gov't prove a "Compelling governmental Interest" to ban churches. Considering 1-3 above, County has zero reason to conclude my church activities do anything to harm deer, thus no "compelling govt interest". 11. Since deer are not a threatened or endangered species, but are hunted by the 10's of thousands, and slaughtered by 6000 protected cougar, there is no way that the County ban on churches would be seen as "compelling governmental interest" by a RLUIPA court. According to ODFW website, Oregon "offered more than 73,000 controlled deer hunting tags" in 2015. Banning my church to protect deer cannot be considered a "compelling gov't interest". Especially since County permitted a hunting lodge on EFU WA. 12. Landwatch suggested that Shepherdsfield could be forced to relocate. RLUIPA requires that churches be addressed with "least restrictive means". Restricting churches to other areas is not "least restrictive". Furthermore, the substantial burden of forcing my house church and wedding ministry away from my home and venue is unreasonable. 13. As far as I know, Deschutes County is the only county to ban churches on EFU WA. Does Deschutes County really want the reputation of being the North Korea of the United States? 14. Carol, with Landwatch, lamented the "cortisol" or stress hormone effect on deer. ODFW estimates there are now 6000 cougars in Oregon! Being hunted by 6000 cougars stresses deer. Being forced out by catastrophic forest fires stresses deer. Breathing smoke stresses deer. But eating my lawn, my hay and my pasture and sleeping in my forest doesn't stress deer. And when the weddings are taking place, the deer are up in the mountains breathing smoke from our burning, overgrown and dying forests. 15. County needs to balance the "cortisol" levels of deer with the needs of its constituents. Because the County, at the urging of Landwatch, shut down almost all of the private wedding venues, there is a huge need in Central Oregon for affordable places to get married. Shepherdsfield serves the needs of dozens of happy brides and thousands of happy family members and friends. The needs of those people need to be considered as well. 16. Since Deschutes County policy prohibits church meetings (or any other non -family gatherings) more than 4 times per year/once per quarter (according to written opinions from Will Groves and John Laherty), Deschutes County may be the only county in the country that outlaws home churches, prayer meetings or Bible studies. Is that really the position Deschutes County wants to defend? 17. According to Deer Friendly.com, there are approximately 32 million deer in the USA. No shortage. Last year in Oregon alone, 42,793 were "harvested" by hunters. Tens of thousands more were killed by the exploding cougar population. There is no justification to sacrifice anyone's first amendment right to free exercise of religion simply in the hope of slightly improving the deer population so that there are more for hunters to kill in the fall. From: John Sheer To: Peter Gutowsky; Dan Dalton; Adam Smith Subject: Bend Bulletin Editorial- for the written record Date: Friday, October 27, 2017 8:31:01 AM Dear Peter, can you please add into the record yesterday's editorial from the Bulletin editorial board? I was very happy to see the Bulletin call upon the County Commissioners to change the code that puts an undue burden on my religious rights -their words. They correctly observed that, if the County code allows agritourism events and other similar uses, it must allow churches. Thank you! Here is the text in full: John Shepherd has been tryinfor ors to gain approval to host weddings on his 216 -acre piece of land near Sisters, without success. But, he argues, and Deschutes County's planning department agrees, there's a First Amendment right at stake that so far has gained little traction. Shepherd, a longtime pastor, began holding weddings on his property as early as 1999• Despite having persuaded the County Commission to permit the activity, he was unable to convince the state Land Use Board of Appeals and the state Court of Appeals that he should be allowed to do so. The county's zoning code currently bars churches from land zoned for exclusive farm use with a wildlife area combining overlay. County planners are preparing to ask the County Commission to drop that prohibition, arguing it violates the federal Religious Land Use and Institutionalized Persons Act, which was approved by Congress in 2000. The act bars land use restrictions that put an "undue burden" on the religious exercise of a person or institution. The commission should make the change, despite the likelihood it will be challenged by Central Oregon LandWatch. The county does allow a variety of activities on agricultural land with a wildlife combining overlay. Thanks to a change in the law in 2011, agritourism and other commercial events are allowed, and such activities need not be restricted to a handful of bikers driving by to look at pumpkins. The county allows "outdoor mass gatherings" of as many as 3,000 people, so long as they stay no longer than 24 hours. That should make the decision easy to allow churches and the things that go with them, including weddings, on land like John Shepherd's. He's a pastor, after all. He has a small church. And he has been willing to limit the events on his land to 18 per year, in the summer months only. The First Amendment gives Americans the right to worship where and as they wish generally without interference. The religious land use act, meanwhile, deals specifically with land use laws that restrict that right, as the current county zoning code appears to do. A hearing on the proposed change is scheduled for to a.m. Nov. 6. hUp:ffwww.bendbulletin.com/opinion/editorials/56983 53-15 I/editorial-deschutes-count should -not -ban -church -near Work with passion. Pray with inspiration. From: Tripn Sickler To: Peter Gutowsky Subject: Don"t weaken wildlife protections Date: Tuesday, October 3, 2017 3:15:36 PM Hi there, I oppose the County's proposal to allow churches (especially if the owner is not: actually a "church° hut. just: disguised as such in order to get a pernut) irl the deer winter range because...: • Our dear populafrorr is dwindling. It i's more important than ever to protect habitat from the disruption and: degradation associated with additional development, • Deer are as much a part of Central', Gregon as the ' hree Sisters and the Deschuites Diver. Critical habitat should not be 'lost to further development. • Allowing ch-urch-cs in th-e winter rank sets a dan6er-ous precedent for our wildlife. If churches are allowed, other types of assc.rrrrrl`rlries tlua,A are cera rentl, , p,irolailbrted such as golf e otirses, schools, public rrec centers, and others raan argue that they should be allowed ha the wrrireer raialge or other critical habitat, too. This vvou.ld quickly crock wildlife habitat protections. • Mule deer arra protected by Lama Use P arrr.rftag Goa.l 5E N/akIn`> an exception tO th.i.s goal can lead to other Goal 5 -protected resources.; such as wetlands and riparian areas, beim compromised. • Wild fferrella ted activities are an 1,mporrtant part of Deschutes Uo%rinty's ecroriro,my,, We don't need to expedite the loss of habitat, and this revenue, by allowing commercial event venues in the winter rank. • J ani a hunter. When degradation of critical: deer:-- habitat causes displacement and populations decline ri y right to recrlea:.te is i t f irbage^rr ra l�oi7 . • Even though the proposed events are to take place in the summer, deer and other wildlife migrate throu.gh and reside: in the space year-round It makes no difference to a muJe deer whether its habitat is deuraded in the w r..rr:ter or summer month& • There is plenty of space in the county for a wedding venue or church to operate. Deer winter rank only accounts for a small fraction of Deschutes County land and i.s considered critical habitat. Ulr.utrclres can he moved, the winter ranges cannot. • It is unacceptable for the county to amend its wildlife coda to accommodate the for-profit ventures of individuals. County codes and wildlife protections are a service to the public. ' "his proposed code amendment docs a disservice to the public and our natural resources for the herr efit of a for -pro rpt event venue. Mule deer are part of the Central Oregon way of life. The county should stand up to defend its protection of critical habitat. Thanks for listening, Tripp From: Sandy Thompson To: Peter Gutowskv Subject: Don"t weaken wildlife protections Date: Tuesday, October 3, 2017 4:41:20 PM I'm Sandra Thompson, Deschutes County resident, who, like most, appreciates the natural lands and creatures in our vicinity. Please do not weaken wildlife habitat protections in the Metolius Deer Winter Range. As I understand it, the current challenge to wildlife code centers around people wanting to call themselves a church, because their directly commercial events aren't legal in sensitive habitat. It's unacceptable for the county government, a public service agency, to amend code for individuals. A church can be anywhere. Winter range cannot. The proposed events may be claimed for summer, but deer and other wildlife are in the space year-round, and it doesn't matter in what season habitat degradation occurs. It does not revive in a few months. Mule deer are protected by Land Use Planning Goal 5. Making an exception can lead to weakening other Goal 5 - protected resources, such as wetlands and riparian areas. Nature and wildlife are important to Deschutes County, including our economy. Don't expedite habitat loss for any individual, moveable reason. Thank you, Sandy Thompson, author "The Grace of Curves: A Memoir in Poetry" (available at amazon.com and at Dudley's in Bend, OR) From: Ted Winchel To: Peter Gutowsky Subject: Don"t weaken wildlife protections Date: Wednesday, October 4, 2017 10:32:27 AM Humans have been degrading wildlife habitat for some time, to greater degree recently, and guess what ? The ecology of wild life habitat is our habitat. The habitat of all, from the tree and plant roots with the symbiotic fungus and bacteria to the wild ungulates, all of which have been around much longer than us humans and have over time maintained and helped develop the habitat we all depend on. As our human numbers increase this issue becomes increasingly critical and unfortunately most are to busy or don't understand that this like other current environmental degradation will come home to roost, so to speak. In my 82 years the more I learn the less I know, but being ecologically oriented its easy for me to see the impending crisis. Thanks for your attention. Ted Winchel Bend, OR tedbw&a.com From: George Wuerthner To: Peter Gutowskv Subject: Don"t weaken wildlife protections Date: Friday, October 6, 2017 1:03:14 PM Dear Deschutes County I am a wildlife biologist by training and have watched wildlife habitat destroyed and degraded across the West. It is time to say enough is enough. The cumulative effects of one or two exemptions adds up to a major loss of habitat. Therefore, I am opposed to weakening protections for wildlife for any reason. The proposed "church" exemption is a threat to all wildlife in the country. Deer winter habitat, in particular, is scarce and getting rarer due to expanding the human population. There are many benefits to the county to maintaining high quality wildlife habitat. The reason I and many others call Deschutes County home is that we love the landscape and its wildlife. We, through our taxes, and our participation in community events, help to maintain the county's economic base. I urge you to consider how diminishment of our lands ultimately harms the very values that draw people to Central Oregon, including for weddings. Weddings can be held in other places outside of sensitive wildlife habitat. Please protect what makes the county liveable. Sincerely: George Wuerthner POB 8359 Bend, OR 97708 From: Dorothy Sayward V& To: Peter Gutowskv Subject: Don"t weaken wildlife protections Date: Thursday, October 5, 2017 2:27:46 PM My goodness, this action seems remarkably unwise for so many reasons. My name is Dorothy Wylie and I live in Bend. Allowing churches in the winter range sets a dangerous precedent for our wildlife. If churches are allowed, other types of assemblies that are currently prohibited such as golf courses, schools, public rec centers, and others can argue that they should be allowed in the winter range or other critical habitat, too. This would quickly erode wildlife habitat protections. Mule deer are protected by Land Use Planning Goal 5. Making an exception to this goal can lead to other Goal 5 -protected resources, such as wetlands and riparian areas, being compromised. Wildlife -related activities are an important part of Deschutes County's economy. We don't need to expedite the loss of habitat, and this revenue, by allowing commercial event venues in the winter range. Thanks for reading... Dorothy BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Subject: _ Name Address,, Phone #s` - E -mail address IS 6 Date: ///4?//V V In Favor F] NeutraUUndecided Opposed Submitting written documents as part of testimony? 1:1 Yes u No If so, please give a copy to the Recording Secretary for the record. November 6, 2017 7� www,cei Deschutes County Board of Commissioners 1300 Wall Street, Suite 200 Bend, OR 97703 via, hand delivery re: Wildlife Area Combining Zone Comprehensive Plan and Text Amendments File Nos. 247-X 7-040702- TA, -000703-.FPA Dear Chair Baney and Commissioners, LandWatch respectfully urges the Board to approve the Planning Commission's unanimous recommendation, and to reject the staff s proposed amendments to the Deschutes County comprehensive plan and code for the reasons we outlined in our comments to the Planning Commission (attached.) LandWatch recommends that the Board consider adopting a single phrase amendment to both documents, as explained below. During the prior proceedings, over 36 comments were submitted to the Planning Commission in favor of protecting winter range habitat, and in opposition to staffs first proposed amendment. By contrast, only four comments were submitted in favor of staffs first proposed amendment: three of those were from the applicants or their representatives. The Planning Commission voted unanimously to deny staffs first proposed amendment, and requested staff to prepare a different amendment .for the Board's consideration. The Planning Commission agreed with Planning Manager Peter Gutowsky's description of such an amendment as follows: "An alternative amendment that is sensitive to the equal terms provisions and eliminates] uses that could be interpreted to discriminate against religious uses and churches. " (Video, October 12, 201.7 Planning Comi.i-fission Meeting.) In our comments submitted on October 6th, LandWatch suggested a simple, one phrase amendment. That suggested amendment would. not necessitate any other change to the county's comprehensive plan, and would fulfill the Planning Commission's objective. M LandWatch's suggested amendment would clarify, if any clarification were needed, that nonreligious institutions and religious institutions are treated on equal terms in Deschutes County's code and plan. Since nonreligious and religious institutions are treated equally, there is no discrimination with respect to religion, Though we do not believe the County's code violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) in any way, the County could clarify its code section DCC 18,88.040 by simply adding the below phrase: tf 1. Golf course not included in a destination resort; 2. Commercial dog kennel; 3. Church or assemblv, institution or mem ...bership organization similgLlj situated to a church;..." This amendment would allow the county to take advantage of the safe harbor provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and insulate the county from the risk of a lawsuit under that act. LandWatch urges the Board to reject both staffs first and second set of proposed amendments. The staffs first proposed amendments, unanimously rejected. by the Planning Commission, would not only harm the winter range but also favor religion over irreligion, thus opening the county to the risk of future litigation. The staffs second proposed ainerldments do not clarify the county's plan or code, but instead add unnecessary language thereto. They are unresponsive to the Planning Commission's recommendation. The amendments will not neutralize the risk of litigation under RLUIPA, but instead will open up the county to the risk of repeated litigation from successive applicants. For the above reasons, LandWatch respectfully recommends ornmends the Board adopt the language LandWatch suggests above. LandWatch believes Deschutes County's neutral stance with respect to religion is clear on the -face of its code and. plan. But if the Board would like to avoid any risk of RLUIPA litigation in the future and take advantage of RLUIPA's safe harbor provision, the Board can achieve that result and follow the Planning Commission's recommendation by adding the above -suggested phrase to those documents. Sillecrely! 4, C8rol Mlacbetli Staff Attorney