2018-2-Minutes for Meeting November 28,2017 Recorded 1/3/2018Recorded in Deschutes County
Nancy Blankenship, County Clerk CJ2018-2
Commissioners' Journal 01/03/2018 12:32:35 PM
1111111111111111111111111
For Recording Stamp Only
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97703-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF BUSINESS MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
Wednesday, November 29, 2017
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
Present were Commissioners Tammy Baney, Phil Henderson and Anthony DeBone. Also present
were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David
Doyle, County Counsel; and Sharon Ross, Board Executive Secretary. One representatives of
the media were in attendance.
CALL TO ORDER: Chair Baney called the meeting to order at 10:00 a.m.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT:
Doug Hoschek and Tina Machura, residents in Sunriver, informed the Board of their concerns
regarding fire prevention within Sunriver. Mr. Hoschek has spoken with Chief Mills and Jim
Fister, Chair of Sunriver Service District regarding fire management issues. They enjoy residing
at Sunriver and hope to remain, however they have serious concerns about fire safety, excessive
fire fuels, and evacuation plans. Mr. Hoschek wants the SRSD to assume more control and
direction over the fire and police. He presented a map on evacuation plan and spoke on issues
Minutes of Board of Commissioners' Business Meeting
November 29, 2017 Page 1 of 4
with fire hydrants. Commissioner Baney reported the Board has a meeting with the Sunriver
Service District on December 20 and this concern could be added to the agenda to review the
Sunriver Community Wildfire Protection Plan and Firewise Community. Commissioner
DeBone spoke on Project Wildfire and defensible space and the work of the County Forester.
County Administrator Anderson spoke on the respective responsibilities of Sunriver Owners
Association and Sunriver Service District.
CONSENT AGENDA: Before the Board was Consideration of Approval of the Consent
Agenda.
DEBONE: Move approval.
HENDERSON: Second.
VOTE: DEBONE: Yes.
HENDERSON: Yes.
BANEY: Chair votes yes. Motion Carried
Consent Agenda Items:
1. Consideration and Approval of Order 2017-047, Accepting a Petition and Setting a
Public Hearing Date for Annexation of Land into Laidlaw Water District.
2. Consideration of Board Signature of Document No. 2017-692, Second Amendment to
IGA with Oregon Judicial Department
3. Consideration of Signature of Letter of Reappointment to Nicole Precone to the Two
Rivers Special Road District for a term through December 31, 2020.
4. Approval of Minutes of the October 11, 2017 Business Meeting
5. Approval of Minutes of the October 11, 2017 Work Session
ACTION ITEMS
6. Consideration of Board Signature of Document NO. 2017-718, Decision Related to
Marijuana Production Facility Related to File No. 247-17-000216-LR/247-17-
000217-AD (247-17-00723-A)
Nicole Mardell, Community Development Department presented this item as
consideration of decision related to marijuana production and reviewed the staff report.
The only change was to add a condition of approval regarding utility verification and
affirming the original conditions of approval.
Minutes of Board of Commissioners' Business Meeting
November 29, 2017 Page 2 of 4
On the Issue of Water: Commissioner Baney suggested clarification regarding water
usage for nurseries in contained buildings. The applicant has a rather generic letter from
Oregon Water Resources Department. Suggestion made to ask for clarity from Oregon
Water Resources that they are aware and recognizes that it is an indoor crop and indoor
watering. There was questions raised concerning whether or not hauled water may be
utilized on an indoor nursery crop. Adam Smith Assistant Legal Counsel noted the
applicant is receiving water from a provider and the statement does not necessarily fit the
circumstances and a condition needs to have clarity on fitting within the code.
Commissioner Baney looks for distinction in state law of crop verses nursery. The
applicant proposes a completely enclosed metal building and not a greenhouse. The
Board provided its interpretation of the water regulation; to wit that the applicant abide
by Oregon Water Resource Department regulations.
Commissioner DeBone inquired as to the decision drafting process employed by CDD
and the Board. County Counsel Doyle stated his preference that the Board deliberate
and vote on appeals prior to tasking staff with the job of preparing the findings and
written decision. Once prepared, those documents will be distributed to each
Commissioner for review and (when necessary), edits.
Ms. Mardell and Mr. Smith will add the interpretation language as directed and return to
the Board's Work Session this afternoon
DEBONE: Move approval of Document No. 2017-718
BANEY: Second
Discussion: Commissioner Henderson expressed his belief that there needs to be more
information & evidence submitted by applicants on odor control and noise.
Commissioner Baney commented on the regulations and noted that this particular
property owner has been in the area for some time. She agrees that the Board needs to
proceed with its review of the MJ regulations.
VOTE: DEBONE: Yes
HENDERSON No
BANEY: Chair votes yes. Motion Carried
Minutes of Board of Commissioners' Business Meeting
November 29, 2017 Page 3 of 4
OTHER ITEMS: None were offered.
ADJOURN
Being no further items to come before the Board, the meeting was adjourned at 10:56 a.m.
DATED this Day of
County Board of Commissioners.
ATTES
wording Secre ary
7M20113 for the Deschutes
Minutes of Board of Commissioners' Business Meeting
Anthony DeBone, Vice Chair 1..(>17
Philip G. He erson, Commissioner
November 29, 2017 Page 4 of 4
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 AM, WEDNESDAY, NOVEMBER 29, 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 and Approval of Order 2017-047, Accepting a Petition and Setting a
Public Hearing Date for Annexation of Land into Laidlaw Water District.
2. Consideration of Board Signature of Document No. 2017-692, Second Amendment to
IGA with Oregon Judicial Dept.
3. Consideration of Signature of Letter of Reappointment to Nicole Precone to the Two
Rivers Special Road District for a term through December 31, 2020.
Board of Commissioners Business Meeting Agenda
of 2
Wednesday, November 29, 2017 Page 1
4. Approval of Minutes of the October 11, 2017 Business Meeting
5. Approval of Minutes of the October 11, 2017 Work Session
ACTION ITEMS
6. Consideration of Board Signature of Document No. 2017-718, Decision Related to
Marijuana Production Facility Related to File No. 247-17-000216-LR/247-17-000217-AD
(247-17-000723-A) - Nicole Mardell, Assistant Planner
OTHER ITEMS
These can be any items not included on the agenda that the Commissioners wish to discuss as part of
the meeting, pursuant to ORS 192.640.
At any time during the meeting, an executive session could be called to address issues relating to ORS
192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor
negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories.
Executive sessions are closed to the public; however, with few exceptions and under specific
guidelines, are open to the media.
ADJOURN
To watch this meeting on line, go to: www.deschutes.orq/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.orq/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
of 2
Wednesday, November 29, 2017 Page 2
Submitting written"documents as part of :testiony`2,es
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Section 3.0 Vegetation Removal Criteria
3.1.11 Flammable landscaping plants should be removed. Owners may be
required to thin dene strands of flammable plants if deemed a fire hazard by
the SRHOA Environmental Director.
In this photo of the fire hydrant in Map area #15 the owner of the property
where the fire hydrant is located, is your SRHOA.
The photo was presented to YOUR SRHOA Board of Directors in August
2017 and followed up with a second presentation at the oct SR HOA board
meeting.
Members of the Board stated the photo and others (approx. eight more )
along with our own requests for other Removals of the flammable shown
bitterbrush plants on SRHOA lands were given to the SRHOA
Environmental Director.
Section 3.1 Private Property states ..All bitterbrush and other flammable
shrubs within (15) feet of a structure shall be removed.
Section 3,1.2 shows a clear drawing of a bitterbrush plant and states.. The
Environmental Director shall determine the amount of bitterbrush to be
removed on a site-specific analysis.
Again these SRHOA Ladder Fuel Reductions are only required of the SR
home owner on YOUR private property.
3.2 SRHOA PROPERTIES
Section 3.2.1 The Environmental Department is responsible for Ladder
Fuels Reduction on SRHOA owned properties- following a six year cycle of
clearing and removal of flammable vegetation, hazard trees, and roadside
obstructions.
3.2.2 The Environmental Director shall determine the amount of
bitterbrush to be removed on a site by site basis.
Continued in
3.2.3 These plants have proven effective in protecting roadway and
pathway easements from damage, and providing effective barriers to
cyclists, pedestrians and motor vehicles.
We, Doug Hoschek/Tina Machuca, full time residents and members of
the SRHOA have visited and photoed many locations of dense strands
of bitterbrush that have been allowed to grow in violation of the
removal of dense strands of bitterbrush in all areas as stated as
protecting roadway and pathway easements from damage and
providing effective barriers to cyclists, pedestrians and motor vehicles.
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1300 NW WaII St, Bend, OR 97703
(541) 388-6570 — Fax (541) 385-3202 — https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of November 29, 2017
DATE: November 20, 2017
FROM: Nicole Mardell, Community Development,
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Document No. 2017-718, Decision Related to Marijuana
Production Facility Related to File No. 247-17-000216-LR/247-17-000217-AD (247-17-000723-
A)
RECOMMENDATION & ACTION REQUESTED:
Approval of 247-17-000216-LR/247-17-000217-AD (247-17-000723-A)
BACKGROUND AND POLICY IMPLICATIONS:
The applicant requested and received administrative approval of an Administrative
Determination to establish a marijuana production facility in the Exclusive Farm Use (EFU)
Zone. The administrative decision issued by staff was appealed. The Board of Commissioners
held two public hearings, deliberated and verbally recommended approval, subject
to a final written decision.
FISCAL IMPLICATIONS: None
ATTENDANCE: Nicole Mardell, Assistant Planner
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS: 247 -17 -000216 -LR, 247 -17 -000217 -AD (247-17-000723-A)
APPLICANT/ Norma and Richard Tewalt
OWNER: 69188 Goodrich Road
Sisters, OR 97759
APPELLANT: Robert P. King
29422 Spotted Bull Way
San Juan Capistrano, CA 92675
APPELLANT'S Elizabeth Dickson, Dickson Hatfield LLC
ATTORNEY: 400 SW Bluff Drive, Suite 240
Bend, OR 97702
PROPOSAL: The applicant is requesting approval of an Administrative
Determination to establish a marijuana production facility in the
Exclusive Farm Use (EFU) Zone.
STAFF REVIEWER: Nicole Mardell, Assistant Planner
ADMINISTRATIVE August 16, 2017
DECISION ISSUED:
APPEAL FILED: August 25, 2017
HEARING DATES: Monday, September 18, 2017
Monday, October 16, 2017
RECORD CLOSED: Monday, October 30, 2017
1. SUMMARY OF DECISION:
In this decision, the County Board of Commissioners ("Board") considers the appellant's
appeal of the August 16, 2017 administrative Findings & Decision (File Nos. 247 -17 -000216 -
LR, 247 -17 -000217 -AD, "Administrative Decision"). The Board exercised its discretion to hear
the appeal de novo.
Dc 20 7 18
The Board received four memoranda on the appeal; three from Assistant Planner Nicole
Mardell and another from Senior Transportation Planner Peter Russell. The first was a memo
dated August 29, 2017 responding to the transportation related items submitted as part of the
appeal materials. The second dated September 13, 2017 identified and summarized the key
issues in the Notice of Appeal and the findings made by the staff on those issues in the
Administrative Decision. The third dated October 11, 2017 detailed testimony given at the initial
public hearing in preparation for the continued public hearing. The final staff memo dated
November 3, 2017 provided summary of all testimony received and a key decision matrix for
the Board to utilize during deliberations. The Board's Decision in this appeal will refer to and
incorporate the Administrative Decision and summary of issues in the Staff Memoranda.
On November 8, following deliberation, the Board found the proposal complied with the
applicable review criteria and standards of the Deschutes County Zoning Ordinance and voted
to uphold the Administrative Decision approving the land use permit to establish a recreational
marijuana production facility on the subject property.
1I. APPLICABLE STANDARDS AND CRITERIA:
Title 18, Deschutes County Zoning Ordinance
Chapter 18.16, Exclusive Farm Use Zones
Chapter 18.116. 330, Marijuana Production, Processing, and Retailing
Title 22, Deschutes County Development Procedures Ordinance
III. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of fact, and
conclusions of law set forth in the August 16, 2017 administrative Findings & Decision (File
247 -17 -000216 -LR and 247 -17 -000217 -AD) in Section Ii. Basic Findings, subsections A
(Location), B (Lot of Record), C (Zoning), D (Site Description), E (Surrounding Land Use), F
(Proposal) , G (Land Use History), H (Public Agency Comments), I (Public Comments), and J
(Review Period), with the following addition:
K. PROCEDURAL HISTORY: This application was submitted on March 27, 2017 and
was deemed incomplete on April 25, 2017. The applicant submitted additional
information and the application was deemed complete and accepted for review on
August 1, 2017. An Administrative Determination which conditionally approved the
application was issued August 16, 2017. An appeal from the appellant was timely filed
during the 12 -day appeal period on August 25, 2017.
The Board used their discretion to "call up" the appellant's appeal to be heard de
novo in the Board's Order 2017-032 dated August 28, 2017. Two public hearings
were held, the initial hearing on September 18, 2017 and the continued hearing on
October 16, 2017. The appellant was represented by Elizabeth Dickson, Attorney at
Law. The applicant, Norma Tewalt was not represented by an attorney. The Board
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 2 of 8
Document No. 2017-718
heard testimony and established an open record period of 21 days. The applicant
waived their right to the final seven days of the open record period for final legal
argument. Therefore, the record closed on October 30, 2017 for a total of 14 days.
The Board conducted deliberations at their regular Business Meeting on November 8,
2017. The Board found the proposal complied with the applicable review criteria and
voted to uphold the Administrative Decision approving the application.
IV. CONCLUSIONARY FINDINGS
The Board adopts and incorporates by reference the code interpretations, findings of
fact, and conclusions contained in the August 16, 2017 administrative Findings &
Decision (File Nos. 247 -17 -000216 -LR and 247 -17 -000217 -AD) in Section III.
Conclusionary Findings, except for the findings relating to the DCC Sections identified
below. To the extent there are conflicts between any of the findings identified above
and the findings below, the findings and conclusions below shall control.
A. DCC 18.116.330(6)(10):
Odor. As used in DCC 18.116.330(6)(10), building means the building,
including greenhouses, hoop houses, and other similar structures, used
for marijuana production or marijuana processing.
a. The building shall be equipped with an effective odor
control system which must at all times prevent
unreasonable interference of neighbors' use and enjoyment
of their property.
b. An odor control system is deemed permitted only after the
applicant submits a report by a mechanical engineer
licensed in the State of Oregon demonstrating that the
system will control odor so as not to unreasonably interfere
with neighbors' use and enjoyment of their property.
c. Private actions alleging nuisance or trespass associated
with odor impacts are authorized, if at all, as provided in
applicable state statute.
d. The odor control system shall:
i. Consist of one or more fans. The fan(s) shall be sized
for cubic feet per minute (CFM) equivalent to the
volume of the building (length multiplied by width
multiplied by height) divided by three. The filter(s)
shall be rated for the required CFM; or
ii. Utilize an alternative method or technology to
achieve equal to or greater odor mitigation than
provided by (i) above.
e. The system shall be maintained in working order and shall
be in use.
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 3 of 8
Document No. 2017-718
FINDING: The record contains two letters from Mechanical Engineer Jay Castino addressing
the mitigation of odor for the property. The initial letter submitted with the application (dated
March 20, 2017) and a revised letter (dated September 6, 2017). Although one Board member
disagreed, the remaining two Board members found that the applicant could meet the criteria
with the ongoing condition of approval:
• At all times, the proposed odor control system shall prevent unreasonable interference with
neighbors' use and enjoyment of their property, shall be maintained in working order, and
shall be in use.
B. DCC 18.116.330(6)(11):
Noise. Noise produced by marijuana production and marijuana
processing shall comply with the following:
a. Sustained noise from mechanical equipment used for
heating, ventilation, air condition, odor control, fans and
similar functions shall not exceed 30 dB(A) measured at any
property line between 10:00 p.m. and 7:00 a.m. the following
day.
b. Sustained noise from marijuana production is exempt from
protections of DCC 9.12 and ORS 30.395, Right to Farm.
Intermittent noise for accepted farming practices is
permitted.
FINDING: Although one Board member disagreed, the remaining two Board members found
the Engineer's statements noted above also satisfy criterion (a) above with the following
ongoing condition:
• As an ongoing condition of approval, sustained noise from mechanical equipment used for
heating, ventilation, air conditioning, odor control, fans and similar functions shall not
exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the
following day.
C. Screening and Fencing. The following screening standards shall apply to
greenhouses, hoop houses, and similar non -rigid structures and land
areas used for marijuana production and processing:
a. Subject to DCC 18.84, Landscape Management Combining
Zone approval, if applicable.
b. Fencing shall be finished in a muted earth tone that blends
with the surrounding natural landscape and shall not be
constructed of temporary materials such as plastic
sheeting, hay bales, tarps, etc., and shall be subject to DCC
18.88, Wildlife Area Combining Zone, if applicable.
c. Razor wire, or similar, shall be obscured from view or
colored a muted earth tone that blends with the surrounding
natural landscape.
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 4 of 8
Document No. 2017-718
d. The existing tree and shrub cover screening the
development from the public right-of-way or adjacent
properties shall be retained to the maximum extent
possible. This provision does not prohibit maintenance of
existing lawns, removal of dead, diseased or hazardous
vegetation; the commercial harvest of forest products in
accordance with the Oregon Forest Practices Act; or
agricultural use of the land.
The applicant is not proposing fencing as part of the application. The Board found the applicant
will meet the screening requirement with the following ongoing condition of approval:
• The existing tree and shrub cover screening the development from the public right-of-way
or adjacent properties shall be retained to the maximum extent possible, except that this
provision does not prohibit maintenance of existing lawns, removal of dead, diseased or
hazardous vegetation, the commercial harvest of forest products in accordance with the
Oregon Forest Practices Act, or agricultural use of the land.
D. DCC 18.116.330(B)(13)
Water. The applicant shall provide:
a. A copy of a water right permit, certificate, or other water use
authorization from the Oregon Water Resource Department;
or
b. A statement that water is supplied from a public or private
water provider, along with the name and contact
information of the water provider; or
c. Proof from the Oregon Water Resources Department that
the water to be used is from a source that does not require
a water right.
The record contains materials demonstrating the property may be served by Bend Water
Hauling, LLC. Discussion included the demonstration of the source of water hauling may be of
interest to identify in the future. Although one Board member disagreed, the remaining two
Board members found the applicant meets these criteria above.
E. DCC 18.116.330(B)(15)
Utility Verification. A statement from each utility company proposed to
serve the operation, stating that each such company is able and willing to
serve the operation, shall be provided.
Central Electric Cooperative, Inc (CEC) has provided two "will serve" letters. The first is dated
February 9, 2017 and states that the property can generally be served by CEC. The second
letter dated June 1, 2017 provides more detail stating the following:
"Central Electric Cooperative has reviewed the proposed load information (800
amp three phase service) associated with the submitted Cannabis Grow
Operation and has determined that this service will require system upgrades
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 5 of 8
Document No. 2017-718
to our facilities in the area. Central Electric Cooperative is willing and able to
serve this location in accordance with the rates and policies of the Central
Electric Cooperative."
The Board found the application met this criterion. Chair Baney and Commissioner Henderson
voted in favor of adding the following condition of approval to meet this criterion:
• Prior to using the subject property for marijuana production as allowed by this land use
decision, the applicant shall demonstrate that the system upgrades as noted by Central
Electric Cooperative's June 1, 2017 letter have been completed.
F. DCC 18.116.310, Traffic Impact Studies
In deliberations, the Board discussed with staff when Traffic Impact Studies are required and
when they are not. Staff clarified that Traffic Impact Studies are required when a use will cause
50 or more daily trips and is subject to a Conditional Use Permit and/or Site Plan Review. Only
marijuana production in the MUA-10 zone, marijuana processing, and marijuana retail require
a Conditional Use Permit or Site Plan Review. The Board finds that because marijuana
production in the EFU zone is a use permitted outright, and does not require a Conditional Use
or Site Plan Review, DCC 18.116.310 is not applicable.
V. DECISION
Based on the findings of fact and conclusions of law set out above, the Board hereby
approves the applicant's proposed marijuana production application subject to the
following conditions of approval:
VI. CONDITIONS OF APPROVAL
A. Use & Location: Marijuana production is conditionally approved exclusively inside the
proposed 3,600 -square -foot structure with a maximum mature canopy area of 2,500
square feet. This approval is based upon the application, site plan, specifications, and
supporting documentation submitted by the applicant. Any substantial change in this
approved use will require review through a new land use application.
ONGOING CONDITIONS OF APPROVAL
B. Lighting: The following lighting standards shall be met.
1. Inside building lighting used for marijuana production shall not be visible outside
the building from 7:00 p.m. to 7:00 a.m. on the following day.
2. Lighting fixtures shall be fully shielded in such a manner that all light emitted
directly by the lamp or a diffusing element, or indirectly by reflection or
refraction, is projected below the horizontal plane through the lowest light -
emitting part.
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 6 of 8
Document No. 2017-718
3. The light cast by exterior light fixtures other than marijuana growing lights shall
comply with DCC 15.10, Outdoor Lighting Control.
4. All exterior lighting shall be shielded so that direct light does not project off site.
C. Odor: At all times, the proposed odor control system shall prevent unreasonable
interference with neighbors' use and enjoyment of their property, shall be maintained
in working order, and shall be in use.
D. Noise: As an ongoing condition of approval, sustained noise from mechanical
equipment used for heating, ventilation, air conditioning, odor control, fans and similar
functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m.
and 7:00 a.m. the following day.
E. Fencing: If fencing is used, it shall be finished in a muted brown, green, or natural wood
color and shall not be constructed of temporary materials such as plastic sheeting, hay
bales, tarps, etc.
F. Screening: The existing tree and shrub cover screening the development from the
public right-of-way or adjacent properties shall be retained to the maximum extent
possible, except that this provision does not prohibit maintenance of existing lawns,
removal of dead, diseased or hazardous vegetation, the commercial harvest of forest
products in accordance with the Oregon Forest Practices Act, or agricultural use of the
land.
G. Security Cameras: If security cameras are used, they shall be directed to record only
the subject property and public rights-of-way, except as required to comply with
requirements of the OLCC or the OHA.
H. Waste: The marijuana waste receptacle shall be stored in a limited access area inside
the production facility, in the possession of and under the control of the OLCC licensee.
I. Prohibited Uses: The uses listed in DCC 18.116.330(20) shall be prohibited on the
subject property so long as Marijuana Production is conducted on the site. Marijuana
production is prohibited in any outdoor area.
J. Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be
met.
K. Utility Verification: Prior to using the subject property for marijuana production as
allowed by this land use decision, the applicant shall demonstrate that the system
upgrades as noted by Central Electric Cooperative's June 1, 2017 letter have been
completed.
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 7 of 8
Document No. 2017-718
VIII. DURATION OF APPROVAL:
The Applicant shall obtain all required permits and initiate the use within two (2) years following
the date this decision becomes final, or obtain an extension of time pursuant to Section
22.36.010 of the Deschutes County Code, or this approval shall be void.
Dated this day of November, 2017 Mailed this day of November, 2017
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Tammy Baney, Chair
Anthony DeBone, Vice Chair
Philip G. Henderson, Commissioner
THIS DECISION BECOMES FINAL WHEN SIGNED. PARTIES MAY APPEAL THIS
DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON
WHICH THIS DECISION IS FINAL.
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 8 of 8
Document No. 2017-718
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS: 247 -17 -000216 -LR, 247 -17 -000217 -AD (247-17-000723-A)
APPLICANT/ Norma and Richard Tewalt
OWNER: 69188 Goodrich Road
Sisters, OR 97759
APPELLANT: Robert P. King
29422 Spotted Bull Way
San Juan Capistrano, CA 92675
APPELLANT'S Elizabeth Dickson, Dickson Hatfield LLC
ATTORNEY: 400 SW Bluff Drive, Suite 240
Bend, OR 97702
PROPOSAL: The applicant is requesting approval of an Administrative
Determination to establish a marijuana production facility in the
Exclusive Farm Use (EFU) Zone.
STAFF REVIEWER: Nicole Mardell, Assistant Planner
ADMINISTRATIVE August 16, 2017
DECISION ISSUED:
APPEAL FILED: August 25, 2017
HEARING DATES: Monday, September 18, 2017
Monday, October 16, 2017
RECORD CLOSED: Monday, October 30, 2017
L SUMMARY OF DECISION:
In this decision, the County Board of Commissioners ("Board") considers the appellant's
appeal of the August 16, 2017 administrative Findings & Decision (File Nos. 247 -17 -000216 -
LR, 247 -17 -000217 -AD, "Administrative Decision"). The Board exercised its discretion to hear
the appeal de novo.
0
1
The Board received four memoranda on the appeal; three from Assistant Planner Nicole
Mardell and another from Senior Transportation Planner Peter Russell. The first was a memo
dated August 29, 2017 responding to the transportation related items submitted as part of the
appeal materials. The second dated September 13, 2017 identified and summarized the key
issues in the Notice of Appeal and the findings made by the staff on those issues in the
Administrative Decision. The third dated October 11, 2017 detailed testimony given at the initial
public hearing in preparation for the continued public hearing. The final staff memo dated
November 3, 2017 provided summary of all testimony received and a key decision matrix for
the Board to utilize during deliberations. The Board's Decision in this appeal will refer to and
incorporate the Administrative Decision and summary of issues in the Staff Memoranda.
On November 8, following deliberation, the Board indicated an intention to vote 2-1 to uphold
the Administrative Decision approving the land use permit to establish a recreational marijuana
production facility on the subject property.
On November 29, the Board determined the proposal complied with the applicable review
criteria and standards of the Deschutes County Zoning Ordinance and voted to uphold the
application as follows:
Chair Baney
Commissioner DeBone
Commissioner Henderson
II. APPLICABLE STANDARDS AND CRITERIA:
Title 18, Deschutes County Zoning Ordinance
Chapter 18.16, Exclusive Farm Use Zones
Chapter 18.116. 330, Marijuana Production, Processing, and Retailing
Title 22, Deschutes County Development Procedures Ordinance
III. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of fact, and
conclusions of law set forth in the August 16, 2017 administrative Findings & Decision (File
247 -17 -000216 -LR and 247 -17 -000217 -AD) in Section II. Basic Findings, subsections A
(Location), B (Lot of Record), C (Zoning), D (Site Description), E (Surrounding Land Use), F
(Proposal) , G (Land Use History), H (Public Agency Comments), I (Public Comments), and J
(Review Period), with the following addition:
K. PROCEDURAL HISTORY: This application was submitted on March 27, 2017 and
was deemed incomplete on April 25, 2017. The applicant submitted additional
information and the application was deemed complete and accepted for review on
August 1, 2017. An Administrative Determination which conditionally approved the
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 2 of 8
Document No. 2017-718
application was issued August 16, 2017. An appeal from the appellant was timely filed
during the 12 -day appeal period on August 25, 2017.
The Board used their discretion to "call up" the appellant's appeal to be heard de
novo in the Board's Order 2017-032 dated August 28, 2017. Two public hearings
were held, the initial hearing on September 18, 2017 and the continued hearing on
October 16, 2017. The appellant was represented by Elizabeth Dickson, Attorney at
Law. The applicant, Norma Tewalt was not represented by an attorney. The Board
heard testimony and established an open record period of 21 days. The applicant
waived their right to the final seven days of the open record period for final legal
argument. Therefore, the record closed on October 30, 2017 for a total of 14 days.
The Board conducted deliberations at their regular Business Meeting on November 8,
2017. The Board found the proposal complied with the applicable review criteria and
indicated an intention to vote 2-1 in favor of upholding the Administrative Decision
approving the application.
IV. CONCLUSIONARY FINDINGS
The Board adopts and incorporates by reference the code interpretations, findings of
fact, and conclusions contained in the August 16, 2017 administrative Findings &
Decision (File Nos. 247 -17 -000216 -LR and 247 -17 -000217 -AD) in Section III.
Conclusionary Findings, except for the findings relating to the DCC Sections identified
below. To the extent there are conflicts between any of the findings identified above
and the findings below, the findings and conclusions below shall control.
A. DCC 18.116.330(B)(10):
Odor. As used in DCC 18.116.330(B)(10), building means the building,
including greenhouses, hoop houses, and other similar structures, used
for marijuana production or marijuana processing.
a. The building shall be equipped with an effective odor
control system which must at all times prevent
unreasonable interference of neighbors' use and enjoyment
of their property.
b. An odor control system is deemed permitted only after the
applicant submits a report by a mechanical engineer
licensed in the State of Oregon demonstrating that the
system will control odor so as not to unreasonably interfere
with neighbors' use and enjoyment of their property.
c. Private actions alleging nuisance or trespass associated
with odor impacts are authorized, if at all, as provided in
applicable state statute.
d. The odor control system shall:
i. Consist of one or more fans. The fan(s) shall be sized
for cubic feet per minute (CFM) equivalent to the
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 3 of 8
Document No. 2017-718
volume of the building (length multiplied by width
multiplied by height) divided by three. The filter(s)
shall be rated for the required CFM; or
ii. Utilize an alternative method or technology to
achieve equal to or greater odor mitigation than
provided by (i) above.
e. The system shall be maintained in working order and shall
be in use.
FINDING: The record contains two letters from Mechanical Engineer Jay Castino addressing
the mitigation of odor for the property. The initial letter submitted with the application (dated
March 20, 2017) and a revised letter (dated September 6, 2017). Although one Board member
disagreed, the remaining two Board members found that the applicant could meet the criteria
with the ongoing condition of approval:
• At all times, the proposed odor control system shall prevent unreasonable interference with
neighbors' use and enjoyment of their property, shall be maintained in working order, and
shall be in use.
B. DCC 18.116.330(B)(11):
Noise. Noise produced by marijuana production and marijuana
processing shall comply with the following:
a. Sustained noise from mechanical equipment used for
heating, ventilation, air condition, odor control, fans and
similar functions shall not exceed 30 dB(A) measured at any
property line between 10:00 p.m. and 7:00 a.m. the following
day.
b. Sustained noise from marijuana production is exempt from
protections of DCC 9.12 and ORS 30.395, Right to Farm.
Intermittent noise for accepted farming practices is
permitted.
FINDING: Although one Board member disagreed, the remaining two Board members found
the Engineer's statements noted above also satisfy criterion (a) above with the following
ongoing condition:
• As an ongoing condition of approval, sustained noise from mechanical equipment used for
heating, ventilation, air conditioning, odor control, fans and similar functions shall not
exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the
following day.
C. Screening and Fencing. The following screening standards shall apply to
greenhouses, hoop houses, and similar non -rigid structures and land
areas used for marijuana production and processing:
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 4 of 8
Document No. 2017-718
a. Subject to DCC 18.84, Landscape Management Combining
Zone approval, if applicable.
b. Fencing shall be finished in a muted earth tone that blends
with the surrounding natural landscape and shall not be
constructed of temporary materials such as plastic
sheeting, hay bales, tarps, etc., and shall be subject to DCC
18.88, Wildlife Area Combining Zone, if applicable.
c. Razor wire, or similar, shall be obscured from view or
colored a muted earth tone that blends with the surrounding
natural landscape.
d. The existing tree and shrub cover screening the
development from the public right-of-way or adjacent
properties shall be retained to the maximum extent
possible. This provision does not prohibit maintenance of
existing lawns, removal of dead, diseased or hazardous
vegetation; the commercial harvest of forest products in
accordance with the Oregon Forest Practices Act; or
agricultural use of the land.
The applicant is not proposing fencing as part of the application. The Board found the applicant
will meet the screening requirement with the following ongoing condition of approval:
• The existing tree and shrub cover screening the development from the public right-of-way
or adjacent properties shall be retained to the maximum extent possible, except that this
provision does not prohibit maintenance of existing lawns, removal of dead, diseased or
hazardous vegetation, the commercial harvest of forest products in accordance with the
Oregon Forest Practices Act, or agricultural use of the land.
D. DCC 18.116.330(B)(13)
Water. The applicant shall provide:
a. A copy of a water right permit, certificate, or other water use
authorization from the Oregon Water Resource Department;
or
b. A statement that water is supplied from a public or private
water provider, along with the name and contact
information of the water provider; or
c. Proof from the Oregon Water Resources Department that
the water to be used is from a source that does not require
a water right.
The record contains materials demonstrating the property may be served by Bend Water
Hauling, LLC. Discussion included the demonstration of the source of water hauling may be of
interest to identify in the future. Although one Board member disagreed, the remaining two
Board members found the applicant meets these criteria above.
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 5 of 8
Document No. 2017-718
E. DCC 18.116.330(B)(15)
Utility Verification. A statement from each utility company proposed to
serve the operation, stating that each such company is able and willing to
serve the operation, shall be provided.
Central Electric Cooperative, Inc (CEC) has provided two "will serve" letters. The first is dated
February 9, 2017 and states that the property can generally be served by CEC. The second
letter dated June 1, 2017 provides more detail stating the following:
"Central Electric Cooperative has reviewed the proposed load information (800
amp three phase service) associated with the submitted Cannabis Grow
Operation and has determined that this service will require system upgrades
to our facilities in the area. Central Electric Cooperative is willing and able to
serve this location in accordance with the rates and policies of the Central
Electric Cooperative."
The Board found the application met this criterion. Chair Baney and Commissioner Henderson
voted in favor of adding the following condition of approval to meet this criterion:
• Prior to using the subject property for marijuana production as allowed by this land use
decision, the applicant shall demonstrate that the system upgrades as noted by Central
Electric Cooperative's June 1, 2017 letter have been completed.
F. DCC 18.116.310, Traffic Impact Studies
In deliberations, the Board discussed with staff when Traffic Impact Studies are required and
when they are not. Staff clarified that Traffic Impact Studies are required when a use will cause
50 or more daily trips and is subject to a Conditional Use Permit and/or Site Plan Review. Only
marijuana production in the MUA-10 zone, marijuana processing, and marijuana retail require
a Conditional Use Permit or Site Plan Review. The Board finds that because marijuana
production in the EFU zone is a use permitted outright, and does not require a Conditional Use
or Site Plan Review, DCC 18.116.310 is not applicable.
V. DECISION
Based on the findings of fact and conclusions of law set out above, the Board hereby
approves the applicant's proposed marijuana production application subject to the
following conditions of approval:
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 6 of 8
Document No. 2017-718
VI. CONDITIONS OF APPROVAL
A. Use & Location: Marijuana production is conditionally approved exclusively inside the
proposed 3,600 -square -foot structure with a maximum mature canopy area of 2,500
square feet. This approval is based upon the application, site plan, specifications, and
supporting documentation submitted by the applicant. Any substantial change in this
approved use will require review through a new land use application.
ONGOING CONDITIONS OF APPROVAL
B. Lighting: The following lighting standards shall be met.
1. Inside building lighting used for marijuana production shall not be visible outside
the building from 7:00 p.m. to 7:00 a.m. on the following day.
2. Lighting fixtures shall be fully shielded in such a manner that all light emitted
directly by the lamp or a diffusing element, or indirectly by reflection or
refraction, is projected below the horizontal plane through the lowest light -
emitting part.
3. The light cast by exterior light fixtures other than marijuana growing lights shall
comply with DCC 15.10, Outdoor Lighting Control.
4. All exterior lighting shall be shielded so that direct light does not project off site.
C. Odor: At all times, the proposed odor control system shall prevent unreasonable
interference with neighbors' use and enjoyment of their property, shall be maintained
in working order, and shall be in use.
D. Noise: As an ongoing condition of approval, sustained noise from mechanical
equipment used for heating, ventilation, air conditioning, odor control, fans and similar
functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m.
and 7:00 a.m. the following day.
E. Fencing: If fencing is used, it shall be finished in a muted brown, green, or natural wood
color and shall not be constructed of temporary materials such as plastic sheeting, hay
bales, tarps, etc.
F. Screening: The existing tree and shrub cover screening the development from the
public right-of-way or adjacent properties shall be retained to the maximum extent
possible, except that this provision does not prohibit maintenance of existing lawns,
removal of dead, diseased or hazardous vegetation, the commercial harvest of forest
products in accordance with the Oregon Forest Practices Act, or agricultural use of the
land.
G. Security Cameras: If security cameras are used, they shall be directed to record only
the subject property and public rights-of-way, except as required to comply with
requirements of the OLCC or the OHA.
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 7 of 8
Document No. 2017-718
H. Waste: The marijuana waste receptacle shall be stored in a limited access area inside
the production facility, in the possession of and under the control of the OLCC licensee.
I. Prohibited Uses: The uses listed in DCC 18.116.330(20) shall be prohibited on the
subject property so long as Marijuana Production is conducted on the site. Marijuana
production is prohibited in any outdoor area.
J. Annual Reporting.: The annual reporting requirements of DCC 18.116.330(D) shall be
met.
K. Utility Verification: Prior to using the subject property for marijuana production as
allowed by this land use decision, the applicant shall demonstrate that the system
upgrades as noted by Central Electric Cooperative's June 1, 2017 letter have been
completed.
VIII. DURATION OF APPROVAL:
The Applicant shall obtain all required permits and initiate the use within two (2) years following
the date this decision becomes final, or obtain an extension of time pursuant to Section
22.36.010 of the Deschutes County Code, or this approval shall be void.
Dated this day of November, 2017
Mailed this day of November, 2017
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Tammy Baney, Chair
Anthony DeBone, Vice Chair
Philip G. Henderson, Commissioner
THIS DECISION BECOMES FINAL WHEN SIGNED. PARTIES MAY APPEAL THIS
DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON
WHICH THIS DECISION IS FINAL.
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 8 of 8
Document No. 2017-718
Laura Skundrick
From: nicole <pinecone2k@hotmail.com>
Sent: Monday, November 13, 2017 5:51 PM
To: Laura Skundrick
Subject: Fw: Two Rivers Special Road District Board Position
Good evening Laura,
I sent the ernail below to Sharon but received her out of office message. Please let me know if you can assist with
my request below or if it needs to wait until she returns.
Cheers,
Nicole M. Precone
pinecone2k a,hotmail.com
541.419.2080 c
From: nicole <pinecone2k@hotmail.com>
Sent: Monday, November 13, 2017 5:49 PM
To: Sharon Ross
Subject: Two Rivers Special Road District Board Position
Good evening Sharon,
This email is to inform you that the Two Rivers Special Road District has selected me, Nicole Precone, to
continue as a member of the board of the district for the next term. My current term expires on December 31,
2017.
Can you let me know when this can be scheduled to go before the board of commissioners?
Please let me know if you need any further from us.
Cheers,
Nicole M. Precone
pinecone2k@ho tmail. c om
541.419.2080 c
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 29, 2017
DATE: November 20, 2017
FROM: Nicole Mardell, Community Development,
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Document No. 2017-718, Decision Related to Marijuana
Production Facility Related to File No. 247-17-000216-LR/247-17-000217-AD (247-17-000723-
A)
RECOMMENDATION & ACTION REQUESTED:
Approval of 247-17-000216-LR/247-17-000217-AD (247-17-000723-A)
BACKGROUND AND POLICY IMPLICATIONS:
The applicant requested and received administrative approval of an Administrative
Determination to establish a marijuana production facility in the Exclusive Farm Use (EFU)
Zone. The administrative decision issued by staff was appealed. The Board of Commissioners
held two public hearings, deliberated and verbally recommended approval, subject
to a final written decision.
FISCAL IMPLICATIONS: None
ATTENDANCE: Nicole Mardell, Assistant Planner
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS: 247 -17 -000216 -LR, 247 -17 -000217 -AD (247-17-000723-A)
APPLICANT/ Norma and Richard Tewalt
OWNER: 69188 Goodrich Road
Sisters, OR 97759
APPELLANT:
Robert P. King
29422 Spotted Bull Way
San Juan Capistrano, CA 92675
APPELLANT'S Elizabeth Dickson, Dickson Hatfield LLC
ATTORNEY: 400 SW Bluff Drive, Suite 240
Bend, OR 97702
PROPOSAL:
The applicant is requesting approval of an Administrative
Determination to establish a marijuana production facility in the
Exclusive Farm Use (EFU) Zone.
STAFF REVIEWER: Nicole Mardell, Assistant Planner
ADMINISTRATIVE August 16, 2017
DECISION ISSUED:
APPEAL FILED: August 25, 2017
HEARING DATES: Monday, September 18, 2017
Monday, October 16, 2017
RECORD CLOSED: Monday, October 30, 2017
I. SUMMARY OF DECISION:
In this decision, the County Board of Commissioners ("Board") considers the appellant's
appeal of the August 16, 2017 administrative Findings & Decision (File Nos. 247 -17 -000216 -
LR, 247 -17 -000217 -AD, "Administrative Decision"). The Board exercised its discretion to hear
the appeal de novo.
2017:
The Board received four memoranda on the appeal; three from Assistant Planner Nicole
Mardell and another from Senior Transportation Planner Peter Russell. The first was a memo
dated August 29, 2017 responding to the transportation related items submitted as part of the
appeal materials. The second dated September 13, 2017 identified and summarized the key
issues in the Notice of Appeal and the findings made by the staff on those issues in the
Administrative Decision. The third dated October 11, 2017 detailed testimony given at the initial
public hearing in preparation for the continued public hearing. The final staff memo dated
November 3, 2017 provided summary of all testimony received and a key decision matrix for
the Board to utilize during deliberations. The Board's Decision in this appeal will refer to and
incorporate the Administrative Decision and summary of issues in the Staff Memoranda.
On November 8, following deliberation, the Board indicated an intention to vote 2-1 to uphold
the Administrative Decision approving the land use permit to establish a recreational marijuana
production facility on the subject property.
On November 29, the Board determined the proposal complied with the applicable review
criteria and standards of the Deschutes County Zoning Ordinance and voted to uphold the
application as follows:
Chair Baney
Commissioner DeBone
Commissioner Henderson
II. APPLICABLE STANDARDS AND CRITERIA:
Title 18, Deschutes County Zoning Ordinance
Chapter 18.16, Exclusive Farm Use Zones
Chapter 18.116. 330, Marijuana Production, Processing, and Retailing
Title 22, Deschutes County Development Procedures Ordinance
III. BASIC FINDINGS:
The Board adopts and incorporates by reference the code interpretations, findings of fact, and
conclusions of law set forth in the August 16, 2017 administrative Findings & Decision (File
247 -17 -000216 -LR and 247 -17 -000217 -AD) in Section II. Basic Findings, subsections A
(Location), B (Lot of Record), C (Zoning), D (Site Description), E (Surrounding Land Use), F
(Proposal) , G (Land Use History), H (Public Agency Comments), I (Public Comments), and J
(Review Period), with the following addition:
K. PROCEDURAL HISTORY: This application was submitted on March 27, 2017 and
was deemed incomplete on April 25, 2017. The applicant submitted additional
information and the application was deemed complete and accepted for review on
August 1, 2017. An Administrative Determination which conditionally approved the
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 2 of 8
Document No. 2017-718
application was issued August 16, 2017. An appeal from the appellant was timely filed
during the 12 -day appeal period on August 25, 2017.
The Board used their discretion to "call up" the appellant's appeal to be heard de
novo in the Board's Order 2017-032 dated August 28, 2017. Two public hearings
were held, the initial hearing on September 18, 2017 and the continued hearing on
October 16, 2017. The appellant was represented by Elizabeth Dickson, Attorney at
Law. The applicant, Norma Tewalt was not represented by an attorney. The Board
heard testimony and established an open record period of 21 days. The applicant
waived their right to the final seven days of the open record period for final legal
argument. Therefore, the record closed on October 30, 2017 for a total of 14 days.
The Board conducted deliberations at their regular Business Meeting on November 8,
2017. The Board found the proposal complied with the applicable review criteria and
indicated an intention to vote 2-1 in favor of upholding the Administrative Decision
approving the application.
IV. CONCLUSIONARY FINDINGS
The Board adopts and incorporates by reference the code interpretations, findings of
fact, and conclusions contained in the August 16, 2017 administrative Findings &
Decision (File Nos. 247 -17 -000216 -LR and 247 -17 -000217 -AD) in Section III.
Conclusionary Findings, except for the findings relating to the DCC Sections identified
below. To the extent there are conflicts between any of the findings identified above
and the findings below, the findings and conclusions below shall control.
A. DCC 18.116.330(B)(10):
Odor. As used in DCC 18.116.330(8)(10), building means the building,
including greenhouses, hoop houses, and other similar structures, used
for marijuana production or marijuana processing.
a. The building shall be equipped with an effective odor
control system which must at all times prevent
unreasonable interference of neighbors' use and enjoyment
of their property.
b. An odor control system is deemed permitted only after the
applicant submits a report by a mechanical engineer
licensed in the State of Oregon demonstrating that the
system will control odor so as not to unreasonably interfere
with neighbors' use and enjoyment of their property.
c. Private actions alleging nuisance or trespass associated
with odor impacts are authorized, if at all, as provided in
applicable state statute.
d. The odor control system shall:
i. Consist of one or more fans. The fan(s) shall be sized
for cubic feet per minute (CFM) equivalent to the
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 3 of 8
Document No. 2017-718
volume of the building (length multiplied by width
multiplied by height) divided by three. The filter(s)
shall be rated for the required CFM; or
ii. Utilize an alternative method or technology to
achieve equal to or greater odor mitigation than
provided by (i) above.
e. The system shall be maintained in working order and shall
be in use.
FINDING: The record contains two letters from Mechanical Engineer Jay Castino addressing
the mitigation of odor for the property. The initial letter submitted with the application (dated
March 20, 2017) and a revised letter (dated September 6, 2017). Although one Board member
disagreed, the remaining two Board members found that the applicant could meet the criteria
with the ongoing condition of approval:
• At all times, the proposed odor control system shall prevent unreasonable interference with
neighbors' use and enjoyment of their property, shall be maintained in working order, and
shall be in use.
B. DCC 18.116.330(B)(11):
Noise. Noise produced by marijuana production and marijuana
processing shall comply with the following:
a. Sustained noise from mechanical equipment used for
heating, ventilation, air condition, odor control, fans and
similar functions shall not exceed 30 dB(A) measured at any
property line between 10:00 p.m. and 7:00 a.m. the following
day.
b. Sustained noise from marijuana production is exempt from
protections of DCC 9.12 and ORS 30.395, Right to Farm.
Intermittent noise for accepted farming practices is
permitted.
FINDING: Although one Board member disagreed, the remaining two Board members found
the Engineer's statements noted above also satisfy criterion (a) above with the following
ongoing condition:
• As an ongoing condition of approval, sustained noise from mechanical equipment used for
heating, ventilation, air conditioning, odor control, fans and similar functions shall not
exceed 30 dB(A) measured at any property line between 10:00 p.m. and 7:00 a.m. the
following day.
C. Screening and Fencing. The following screening standards shall apply to
greenhouses, hoop houses, and similar non -rigid structures and land
areas used for marijuana production and processing:
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 4 of 8
Document No. 2017-718
a. Subject to DCC 18.84, Landscape Management Combining
Zone approval, if applicable.
b. Fencing shall be finished in a muted earth tone that blends
with the surrounding natural landscape and shall not be
constructed of temporary materials such as plastic
sheeting, hay bales, tarps, etc., and shall be subject to DCC
18.88, Wildlife Area Combining Zone, if applicable.
c. Razor wire, or similar, shall be obscured from view or
colored a muted earth tone that blends with the surrounding
natural landscape.
d. The existing tree and shrub cover screening the
development from the public right-of-way or adjacent
properties shall be retained to the maximum extent
possible. This provision does not prohibit maintenance of
existing lawns, removal of dead, diseased or hazardous
vegetation; the commercial harvest of forest products in
accordance with the Oregon Forest Practices Act; or
agricultural use of the land.
The applicant is not proposing fencing as part of the application. The Board found the applicant
will meet the screening requirement with the following ongoing condition of approval:
• The existing tree and shrub cover screening the development from the public right-of-way
or adjacent properties shall be retained to the maximum extent possible, except that this
provision does not prohibit maintenance of existing lawns, removal of dead, diseased or
hazardous vegetation, the commercial harvest of forest products in accordance with the
Oregon Forest Practices Act, or agricultural use of the land.
D. DCC 18.116.330(6)(13)
Water. The applicant shall provide:
a. A copy of a water right permit, certificate, or other water use
authorization from the Oregon Water Resource Department;
or
b. A statement that water is supplied from a public or private
water provider, along with the name and contact
information of the water provider; or
c. Proof from the Oregon Water Resources Department that
the water to be used is from a source that does not require
a water right.
The record contains materials demonstrating the property may be served by Bend Water
Hauling, LLC. Discussion included the demonstration of the source of water hauling may be of
interest to identify in the future. Although one Board member disagreed, the remaining two
Board members found the applicant meets these criteria above.
File Nos. 247 -17 -000216 -LR / 247 -17 -000217 -AD (247-17-000723-A) Page 5 of 8
Document No. 2017-718
E. DCC 18.116.330(6)(15)
Utility Verification. A statement from each utility company proposed to
serve the operation, stating that each such company is able and willing to
serve the operation, shall be provided.
Central Electric Cooperative, Inc (CEC) has provided two "will serve" letters. The first is dated
February 9, 2017 and states that the property can generally be served by CEC. The second
letter dated June 1, 2017 provides more detail stating the following:
"Central Electric Cooperative has reviewed the proposed load information (800
amp three phase service) associated with the submitted Cannabis Grow
Operation and has determined that this service will require system upgrades
to our facilities in the area. Central Electric Cooperative is willing and able to
serve this location in accordance with the rates and policies of the Central
Electric Cooperative."
The Board found the application met this criterion. Chair Baney and Commissioner Henderson
voted in favor of adding the following condition of approval to meet this criterion:
• Prior to using the subject property for marijuana production as allowed by this land use
decision, the applicant shall demonstrate that the system upgrades as noted by Central
Electric Cooperative's June 1, 2017 letter have been completed.
F. DCC 18.116.310, Traffic Impact Studies
In deliberations, the Board discussed with staff when Traffic Impact Studies are required and
when they are not. Staff clarified that Traffic Impact Studies are required when a use will cause
50 or more daily trips and is subject to a Conditional Use Permit and/or Site Plan Review. Only
marijuana production in the MUA-10 zone, marijuana processing, and marijuana retail require
a Conditional Use Permit or Site Plan Review. The Board finds that because marijuana
production in the EFU zone is a use permitted outright, and does not require a Conditional Use
or Site Plan Review, DCC 18.116.310 is not applicable.
V. DECISION
Based on the findings of fact and conclusions of law set out above, the Board hereby
approves the applicant's proposed marijuana production application subject to the
following conditions of approval:
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VI. CONDITIONS OF APPROVAL
A. Use & Location: Marijuana production is conditionally approved exclusively inside the
proposed 3,600 -square -foot structure with a maximum mature canopy area of 2,500
square feet. This approval is based upon the application, site plan, specifications, and
supporting documentation submitted by the applicant. Any substantial change in this
approved use will require review through a new land use application.
ONGOING CONDITIONS OF APPROVAL
B. Lighting: The following lighting standards shall be met.
1. Inside building lighting used for marijuana production shall not be visible outside
the building from 7:00 p.m. to 7:00 a.m. on the following day.
2. Lighting fixtures shall be fully shielded in such a manner that all light emitted
directly by the lamp or a diffusing element, or indirectly by reflection or
refraction, is projected below the horizontal plane through the lowest light -
emitting part.
3. The light cast by exterior light fixtures other than marijuana growing lights shall
comply with DCC 15.10, Outdoor Lighting Control.
4. All exterior lighting shall be shielded so that direct light does not project off site.
C. Odor: At all times, the proposed odor control system shall prevent unreasonable
interference with neighbors' use and enjoyment of their property, shall be maintained
in working order, and shall be in use.
D. Noise: As an ongoing condition of approval, sustained noise from mechanical
equipment used for heating, ventilation, air conditioning, odor control, fans and similar
functions shall not exceed 30 dB(A) measured at any property line between 10:00 p.m.
and 7:00 a.m. the following day.
E. Fencing: If fencing is used, it shall be finished in a muted brown, green, or natural wood
color and shall not be constructed of temporary materials such as plastic sheeting, hay
bales, tarps, etc.
F. Screening: The existing tree and shrub cover screening the development from the
public right-of-way or adjacent properties shall be retained to the maximum extent
possible, except that this provision does not prohibit maintenance of existing lawns,
removal of dead, diseased or hazardous vegetation, the commercial harvest of forest
products in accordance with the Oregon Forest Practices Act, or agricultural use of the
land.
G. Security Cameras: If security cameras are used, they shall be directed to record only
the subject property and public rights-of-way, except as required to comply with
requirements of the OLCC or the OHA.
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H. Waste: The marijuana waste receptacle shall be stored in a limited access area inside
the production facility, in the possession of and under the control of the OLCC licensee.
1. Prohibited Uses: The uses listed in DCC 18.116.330(20) shall be prohibited on the
subject property so long as Marijuana Production is conducted on the site. Marijuana
production is prohibited in any outdoor area.
J. Annual Reporting: The annual reporting requirements of DCC 18.116.330(D) shall be
met.
K. Utility Verification: Prior to using the subject property for marijuana production as
allowed by this land use decision, the applicant shall demonstrate that the system
upgrades as noted by Central Electric Cooperative's June 1, 2017 letter have been
completed.
VIII. DURATION OF APPROVAL:
The Applicant shall obtain all required permits and initiate the use within two (2) years following
the date this decision becomes final, or obtain an extension of time pursuant to Section
22.36.010 of the Deschutes County Code, or this approval shall be void.
Dated this day of November, 2017
Mailed this day of November, 2017
BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
Tammy Baney, Chair
Anthony DeBone, Vice Chair
Philip G. Henderson, Commissioner
THIS DECISION BECOMES FINAL WHEN SIGNED. PARTIES MAY APPEAL THIS
DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON
WHICH THIS DECISION IS FINAL.
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